United States v. Palik ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Ryan M. PALIK, Technical Sergeant
United States Air Force, Appellant
No. 23-0206
Crim. App. No. 40225
Argued December 6, 2023—Decided March 26, 2024
Military Judge: Colin P. Eichenberger
For Appellant: Major Matthew Blyth (argued); Me-
gan P. Marinos, Esq.
For Appellee: Captain Tyler L. Washburn (argued);
Colonel Matthew D. Talcott, Lieutenant Colonel
James P. Ferrell, and Mary Ellen Payne, Esq. (on
brief).
Chief Judge OHLSON delivered the opinion of the
Court, in which Judge HARDY and Judge
JOHNSON joined. Judge SPARKS filed a separate
dissenting opinion. Judge MAGGS filed a separate
dissenting opinion, in which Judge SPARKS joined.
_______________
United States v. Palik, No. 23-0206/AF
Opinion of the Court
Chief Judge OHLSON delivered the opinion of the
Court.
This Court again addresses the issue of lost recordings
of a Government witness’s statement, this time in the con-
text of a claim of ineffective assistance of counsel.
In the present case, Appellant was accused of assault-
ing his girlfriend, Airman First Class (A1C) S.M., on two
separate occasions. The Air Force Office of Special Investi-
gations (OSI) interviewed A1C S.M. on back-to-back days,
and it was customary for the agency to video record such
interviews. The two trial defense counsel were informed by
the Government during pretrial discovery that OSI had
lost the videos and that no member of the legal office had
reviewed them. Days before the start of trial, the trial de-
fense counsel received OSI case file documentation indicat-
ing that the lead OSI investigator for the case was unaware
of the time period after which recordings would be erased
or overwritten by subsequent recordings, and that the vid-
eos of A1C S.M.’s interviews had been deleted from the re-
cording system without having been downloaded.
At trial, the defense cross-examined the lead OSI inves-
tigator who conceded that the interview with A1C S.M. had
been “recorded” but then “lost.” However, the trial defense
counsel did not bring a motion under Rule for Courts-Mar-
tial (R.C.M.) 914 for production of the recordings after A1C
S.M. testified as a Government witness. Appellant was
subsequently convicted of offenses solely related to A1C
S.M.’s allegations.
We granted review of the following issue:
The Government lost the only two video-recorded
statements from SM, the complaining witness for
every convicted offense. Did defense counsel pro-
vide ineffective assistance by failing to file an
RCM 914 motion after SM’s testimony?
United States v. Palik, 83 M.J. 452 (C.A.A.F. 2023) (order
granting review).
For the reasons set forth below, we hold that the trial
defense counsel in this case provided ineffective assistance
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Opinion of the Court
when they failed to bring a motion under R.C.M. 914 for
production of the recordings of OSI’s interviews of A1C
S.M. We therefore reverse the decision of the United States
Air Force Court of Criminal Appeals (CCA) and set aside
the findings and the sentence.
I. Background
Appellant and A1C S.M. were stationed together at
Royal Air Force Base Mildenhall, United Kingdom. They
began dating after meeting in the fall of 2019. The relation-
ship was described by Appellant as “very emotional” and
full of trust issues because of concerns of infidelity by both
parties. The charges involving A1C S.M. arose from two in-
cidents that occurred at Appellant’s off-base apartment.
The first occurred during July of 2020 when, after return-
ing from a local bar, an argument ensued during which
A1C S.M. stated that Appellant choked her. The second in-
cident occurred in August of 2020 when, after a night
drinking at the same local bar, Appellant discovered text
messages on A1C S.M.’s phone referencing another man.
In an ensuing argument, both parties threw each other’s
phones out the apartment window and A1C S.M. testified
that Appellant again choked her. 1
Shortly after the second incident, A1C S.M. reported to
her chain of command that she had been assaulted by Ap-
pellant. Later that day, she was interviewed by OSI agents
who took pictures of her injuries. OSI conducted a follow-
up interview of A1C S.M. the next day. The OSI lead inves-
tigator for this case, Special Investigator (SI) H.O., was a
new investigator and this was one of her first investiga-
tions. Special Agent (SA) R.A. participated in the first in-
terview to train SI H.O. and to take notes of their discus-
sion with A1C S.M.
1 A1C S.M. also testified that at some point during the alter-
cation, she returned to the bedroom to get away from Appellant,
but he pried the door open and hit her with the door ten to fifteen
times. However, Appellant was acquitted of the charged offense
arising from that allegation.
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United States v. Palik, No. 23-0206/AF
Opinion of the Court
SI H.O. testified at trial that both interviews of A1C
S.M. had been recorded but the recordings were subse-
quently lost. A1C S.M. testified as the next Government
witness. After her direct examination, the trial defense
counsel did not raise an R.C.M. 914 motion seeking produc-
tion of the recordings.
SI H.O. was subsequently recalled to testify as a prose-
cution witness. On cross-examination by trial defense
counsel, SI H.O. testified that the recordings of the inter-
views were “deleted off the system . . . . [for] an unknown
reason” before she was able to download them “onto a CD.”
She also agreed during her testimony that it was a custom-
ary practice for OSI to download interviews such as those
she conducted with A1C S.M. and then include them in the
case file. However, SI H.O. acknowledged that she did not
do so in this case. She also acknowledged that she did not
discover that the recordings had been deleted until more
than two months after the interviews had been conducted.
Contrary to his pleas, a general court-martial consisting
of officer members convicted Appellant of two specifications
of assault consummated by a battery in violation of Article
128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 928 (2018), and one specification of domestic violence by
strangulation on divers occasions in violation of Article
128b, UCMJ, 10 U.S.C. § 928b (2018). 2 The military judge
sentenced Appellant to confinement for ten months, reduc-
tion to E-1, forfeiture of all pay and allowances, and a bad-
conduct discharge. The convening authority took no action
on the findings and approved the sentence.
2 One of the convictions for assault consummated by a bat-
tery against A1C S.M. was the lesser included offense of domes-
tic violence by strangulation. Appellant was acquitted of two
specifications of assault consummated by a battery allegedly
committed against A1C S.M.—one arising during each of the
July 2020 and August 2020 incidents. He was also acquitted of
ten unrelated specifications of assault consummated by a bat-
tery allegedly committed against his ex-wife, Staff Sergeant B.K.
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United States v. Palik, No. 23-0206/AF
Opinion of the Court
On appeal before the United States Air Force Court of
Criminal Appeals (CCA), Appellant raised an ineffective
assistance of counsel claim against his trial defense counsel
because they failed to file an R.C.M. 914 motion for A1C
S.M.’s recorded OSI statements. The CCA ordered each of
Appellant’s trial defense counsel, Major (Maj) A.N.,
Captain (Capt) O.H., and Capt R.H, 3 to submit a
declaration concerning Appellant’s claim that they were
ineffective for “fail[ing] to file an R.C.M. 914 motion based
on the Government’s inability to produce two video-
recorded statements of the complaining witness, which
were lost by the Government.”
The sworn declaration of Maj A.N., the lead trial de-
fense counsel, did not directly mention R.C.M. 914 despite
the contents of the CCA’s order. Rather, she explained that
in July 2021 the defense learned from the Government that
the OSI recorded interview of A1C S.M. “was lost and that
no member of the legal office had previously reviewed” the
recorded interviews. Maj A.N. also stated that days before
the start of trial in August 2021, the Government provided
OSI “internal data pages” (IDPs) in discovery that included
a note created in January 2021, that “[o]n 26 Oct 20, it was
discovered the SUBJECT [Appellant], VICTIM [A1C S.M.],
and VICTIM [A1C S.M.] follow-up interview recordings
were deleted from the Getac system without copying the
videos to a disk. SI [H.O.] was unaware of the timeframe
OSI requires videos to be copied to a disk.”
Maj A.N. then provided the following explanation about
the defense’s decision-making concerning the lost
recordings:
6. . . . . Based on experience with OSI, it was my
understanding that OSI regulations and standard
operating procedures do not require special agents
to either audio or video record witness interviews
or complaining witness interviews; however, it is
3 Because Capt R.H. did not participate in the trial phase of
Appellant’s court-martial, his involvement in the case is not rel-
evant to the resolution of the issue.
5
United States v. Palik, No. 23-0206/AF
Opinion of the Court
generally considered a best practice. Further-
more, OSI interviews captured on their recording
devices are not indefinitely maintained on the re-
cording device and will be erased after a certain
period of time or may be overwritten by subse-
quent recordings. In this case, the Defense has no
knowledge as to whether OSI’s recording device
was fully functional or definitely captured the two
interviews OSI conducted of A1C [S.M.] on 20 Au-
gust 202[0] and 21 August 202[0]. To the De-
fense’s knowledge, no OSI agent, trial counsel, or
member of the legal office has viewed any record-
ing of the two OSI interviews at issue nor have
they confirmed their existence at any point.
7. It was the Defense’s intent to discredit [SI H.O.]
altogether as the lead investigator in this
case . . . . Defense counsel questioned [SI H.O.]
about the two OSI interviews of A1C [S.M.] as
part of the effort to discredit her. In discrediting
[SI H.O.] and the investigation, I refer to the vid-
eos as lost because I believed it was a fair attack
on the investigation generally, but I do not have
actual knowledge as to whether they were ever
recorded.
8. The Defense considered pursuing the two OSI
video recorded interviews further but held con-
cern over the potential for its use by the [G]overn-
ment as prior consistent statements in the event
they ever existed and could be produced. Defense
counsel recognized the likelihood that A1C [S.M.]
would appear distraught, disheveled, or injured in
any video recording given her immediate report-
ing of the assault. I did not continue to pursue the
status of the OSI video recorded interviews be-
cause I did not want to give trial counsel the abil-
ity to use a video recording for prior consistent
statements with a potentially sympathetic victim
visually depicted in the video. I had concerns that
any recorded OSI interview of A1C [S.M.] would
be more beneficial to the prosecution than to the
defense. It is not unheard of for OSI to later sup-
plement a case file with additional evidence and I
was not confident that would not occur in this case
because this OSI detachment has previously in-
vestigated a separate case in which several discs
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United States v. Palik, No. 23-0206/AF
Opinion of the Court
of video surveillance not originally associated
with its case file were later found on the eve of
trial. The Defense’s preference was to cross-exam-
ine A1C [S.M.] with the version of events she re-
ported to . . . OSI based on their notes, as well as
[Appellant]’s version of events, and highlight that
OSI did not have the video recordings in an effort
to discredit the investigation. The Defense also
considered this issue under Rules for Courts-Mar-
tial 703(e)(2) and did not further pursue the sta-
tus of the two OSI video recorded interviews for
the same reasons. In light of the recent opinion by
the Court of Appeals for the Armed Forces in
United States v. Sigrah [82 M.J. 463 (C.A.A.F.
2022)], I may have chosen a different approach as
to whether the Defense would have continued to
pursue the existence or whereabouts of any OSI
video recorded interviews of A1C [S.M.].
The sworn declaration of assistant trial defense counsel,
Capt O.H., described how she had learned from the Gov-
ernment that the recordings of OSI’s interviews with A1C
S.M. were “lost,” that the Government could not confirm
whether the interviews had ever been recorded or were lost
after being recorded, and that neither RAF Mildenhall le-
gal office personnel nor the OSI agents involved in the case
had ever reviewed a recording of the interviews. Capt O.H.
also averred that days before the start of trial, the defense
received IDPs created by OSI in discovery that stated in
November 2020, SI H.O. informed the Chief of Justice at
RAF Mildenhall that both of OSI’s interviews of A1C S.M.
had been deleted from the OSI software system.
Capt O.H. provided the following explanation concern-
ing how the trial defense counsel adopted the lost record-
ings into their trial strategy:
7. Based on information we had when A1C [S.M.]
testified we could not definitively say whether the
interviews of A1C [S.M.] had been recorded then
lost or never recorded in the first place. I knew
from prior experiences with OSI that it was possi-
ble the interviews (1) were recorded and not re-
moved from the system, so automatically over-
written after a certain period of time; (2) were
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United States v. Palik, No. 23-0206/AF
Opinion of the Court
never recorded in the first place due to user error
with the software system; (3) were never recorded
because an agent did not know that the best prac-
tice was normally to record victim interviews; or
(4) were never recorded because the recording sys-
tem malfunctioned. OSI agents have told me be-
fore that there is no formal regulation or policy to
record victim interviews.
8. Maj [A.N.] conducted the cross[-]examination of
A1C [S.M.] . . . . We did not want to delve into the
existence or non-existence of the recorded inter-
view anymore [sic] than we already had, because
it could’ve led to more damaging evidence against
[Appellant] if the recording existed. We would’ve
needed that information to prevail on a motion un-
der R.C.M. 914. I agreed with her strategy for
handling A1C [S.M.’s] testimony. Had United
States v. Sigrah been decided prior to [Appel-
lant’s] trial, I may have viewed the issue under a
different lens, but it was not decided until over a
year later.
9. I previously dealt with a similar situation in a
case the year prior to United States v. Palik. In
United States v. Ferrell, we had the video record-
ing of the interview, but it contained no audio re-
cordings. In that case, the recording software was
malfunctioning. Similar to [Appellant’s] case,
there was an interview that was supposed to be
recorded at OSI, there was a pre-OSI interview
with a different law enforcement agency, and fol-
low-up interviews that were not recorded. Also
similar, no one could definitively say whether the
audio ever existed. We raised it as an issue under
R.C.M. 703(e)(2), for lost or destroyed evidence, at
the motions hearing in the case. The military
judge ruled against us for any remedies. United
States v. Ferrell never progressed to the findings
phase of trial, so whether R.C.M. 914 would have
been raised or not or whether we would have pre-
vailed if it had is unknown; however, it was not
raised as an option when we were strategizing the
case. I considered the issue with A1C [S.M.’s] in-
terviews under that experience. Since we could
not definitively say the recordings were made in
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Opinion of the Court
the first place, my experience indicated we would
not prevail under R.C.M. 703(e)(2).
The CCA rejected Appellant’s argument, holding no re-
lief was warranted because “Appellant has not overcome
the presumption of competence” to show deficient perfor-
mance by his trial defense counsel.
II. Standard of Review
Allegations of ineffective assistance of counsel are re-
viewed de novo. United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007).
III. Applicable Law
A. Ineffective Assistance of Counsel
An appellant will prevail on an ineffective assistance of
counsel claim if he “demonstrate[s] both ‘(1) that his coun-
sel’s performance was deficient, and (2) that this deficiency
resulted in prejudice.’ ” United States v. Captain, 75 M.J.
99, 101 (C.A.A.F. 2016) (quoting United States v. McIntosh,
74 M.J. 294, 295 (C.A.A.F. 2015)). “ ‘When a claim of inef-
fective assistance of counsel is premised on counsel’s fail-
ure to make a motion . . . , an appellant must show that
there is a reasonable probability that such a motion would
have been meritorious.’ ” United States v. McConnell, 55
M.J. 479, 482 (C.A.A.F. 2001) (quoting United States v. Na-
poleon, 46 M.J. 279, 284 (C.A.A.F. 1997)).
This Court applies a three-part test to determine
whether the presumption of competence has been over-
come:
1. Are appellant’s allegations true; if so, “is there
a reasonable explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s
level of advocacy “fall measurably below the
performance . . . [ordinarily expected] of fallible
lawyers”?
3. If defense counsel was ineffective, is there “a
reasonable probability that, absent the errors,”
there would have been a different result?
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United States v. Palik, No. 23-0206/AF
Opinion of the Court
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011)
(alterations in original) (quoting United States v. Polk, 32
M.J. 150, 153 (C.M.A. 1991)).
Strategic choices made by counsel after a thorough
investigation of the law and facts are virtually
unchallengeable. Strickland v. Washington, 466 U.S. 668,
690-91 (1984). Importantly, however, in Hinton v. Alabama
the Supreme Court recognized the following: “An attorney’s
ignorance of a point of law that is fundamental to his case
combined with his failure to perform basic research on that
point is a quintessential example of unreasonable
performance under Strickland.” 571 U.S. 263, 274 (2014)
(per curiam).
B. R.C.M. 914
At the time of Appellant’s trial, R.C.M. 914 (2019 ed.)
provided in pertinent part: 4
4 In July 2023, the President amended R.C.M. 914 to estab-
lish a lost statement exception to the rule’s remedy section. The
amended rule now provides:
(e) Remedy for failure to produce statement.
....
(2) Exception. In the event that the other party
cannot comply with this rule because the state-
ment is lost, and can prove, by a preponderance of
evidence, that the loss of the witness statement
was not attributable to bad faith or gross negli-
gence, the military judge may exercise the sanc-
tions set forth in paragraph (e)(1) of this rule only
if—
(A) the statement is of such central importance
to an issue that it is essential to a fair trial, and
(B) there is no adequate substitute for the
statement.
Exec. Order No. 14,103, Annex 1, § 1(bb), 88 Fed. Reg.
50,535, 50,560-61 (July 28, 2023).
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United States v. Palik, No. 23-0206/AF
Opinion of the Court
(a) Motion for production. After a witness other
than the accused has testified on direct examina-
tion, the military judge, on motion of a party who
did not call the witness, shall order the party who
called the witness to produce, for examination and
use by the moving party, any statement of the wit-
ness that relates to the subject matter concerning
which the witness has testified, and that is:
(1) In the case of a witness called by trial coun-
sel, in the possession of the United States . . . .
....
(e) Remedy for failure to produce statement. If the
other party elects not to comply with an order to
deliver a statement to the moving party, the mili-
tary judge shall order that the testimony of the
witness be disregarded by the trier of fact and that
the trial proceed, or, if it is trial counsel who elects
not to comply, shall declare a mistrial if required
in the interest of justice.
The language of R.C.M. 914, “tracks the language of the
Jencks Act.” United States v. Muwwakkil, 74 M.J. 187, 190
(C.A.A.F. 2015) (internal quotation marks omitted) (cita-
tion omitted). Specifically, the Jencks Act requires a dis-
trict court judge, upon motion by the defendant, to order
the government to disclose prior “statement[s]” of its wit-
nesses that are “relate[d] to the subject matter” of their tes-
timony after each witness testifies on direct examination.
18 U.S.C. § 3500(b) (2018). Given the similarities in lan-
guage and purpose between R.C.M. 914 and the Jencks Act,
this Court has “conclud[ed] that our Jencks Act case law
and that of the Supreme Court informs our analysis of
R.C.M. 914 issues.” Muwwakkil, 74 M.J. at 191.
The Jencks Act jurisprudence of the Supreme Court and
this Court recognizes a judicially created “good faith loss
doctrine.” Id. at 193. “This doctrine excuses the Govern-
ment’s failure to produce ‘statements’ if the loss . . . of evi-
dence was in good faith.” Id. (quoting Killian v. United
States, 368 U.S. 231, 242 (1961)). However, this Court’s
predecessor observed that the good faith loss doctrine is
“generally limited in its application.” Id. (internal
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quotation marks omitted) (quoting United States v. Jarrie,
5 M.J. 193, 195 (C.M.A. 1978)).
Two opinions of this Court have applied R.C.M. 914 and
are particularly relevant to the resolution of this case:
Muwwakkil, 74 M.J. 187, and United States v. Sigrah, 82
M.J. 463 (C.A.A.F. 2022).
In Muwwakkil, in the context of an Article 62, UCMJ,
10 U.S.C. § 862 (2012), appeal, this Court reviewed a mili-
tary judge’s ruling to strike the complaining witness’s trial
testimony under the Jencks Act and R.C.M. 914 due to the
government’s failure to produce the recording of the wit-
ness’s Article 32, UCMJ, 5 testimony. 74 M.J. at 188. The
Article 32 testimony had been recorded on two devices, one
of which malfunctioned partway through the hearing, but
the other recording device functioned properly and rec-
orded the testimony. Id. at 189. However, at some point be-
fore trial, the witness’s testimony was deleted from the
functioning device. Id. During motions practice, a paralegal
in the military justice office conceded that he failed to ap-
propriately “ ‘back up’ ” the recording, and trial counsel
stipulated that she did not provide paralegals in that office
with any instruction regarding the handling or preserva-
tion of the Article 32 audio in the accused’s case. Id. The
Court held that the military judge did not err in declining
to apply the good faith loss doctrine because she had explic-
itly found that the government had engaged in negligent
conduct, and that a finding of negligence may serve as the
basis for a military judge to conclude the good faith loss
doctrine does not apply in a specific case. Id. at 193. The
Court then went on to hold that the “plain text of R.C.M.
914 provides two remedies [striking the witnesses testi-
mony or declaring a mistrial] for the Government’s failure
to deliver a ‘statement’ without referencing a predicate
finding of prejudice to the accused.” Id. at 194. Therefore,
the Court reasoned that a military judge considering an
5 10 U.S.C. § 832 (2012).
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R.C.M. 914 motion in the midst of trial is not required to
engage in a prejudice analysis. 74 M.J. at 194 n.4.
In Sigrah, a case decided more than a year after Appel-
lant’s trial, this Court reviewed a military judge’s denial of
the appellant’s motion to strike the testimony of an alleged
victim and two other government witnesses. 82 M.J. at
464-65. Before this Court, the government conceded that
the military judge erred in denying the R.C.M. 914 motions
and that the government, in its failure to preserve recorded
interviews at issue, “showed sufficient culpability to pre-
clude the good faith doctrine.” Id. at 466 n.2. Thus, the
Court’s opinion focused on identifying and applying the cor-
rect prejudice test on appeal for a preserved nonconstitu-
tional R.C.M. 914 error. Id. at 467-68. However, the Court
specifically reiterated a point it had made in Muwwakkil:
At the trial level, if the government, as the op-
posing party, fails to produce a qualifying state-
ment, R.C.M. 914(e) provides the military judge
with [only] two remedies for the government’s fail-
ure to deliver the qualifying statement: (1) “order
that the testimony of the witness be disregarded
by the trier of fact” or (2) “declare a mistrial if re-
quired in the interest of justice.”
Id. at 467 (citation omitted).
IV. Discussion
Analytically, we divide this case into two parts: the
state of the case at the time of pretrial discovery and the
state of the case once A1C S.M. testified at trial. Viewed
through this lens, it is clear that trial defense counsel did
not provide a reasonable explanation for their failure to
raise a motion pursuant to R.C.M. 914 after A1C S.M. tes-
tified on direct examination at the court-martial proceed-
ings. See Gooch, 69 M.J. at 362.
In the sworn declarations of the two trial defense coun-
sel, they do provide “reasonable explanations” for their ac-
tions at the time of pretrial discovery. At the outset of the
case, the defense was not sure whether the Government
might still be able to recover the recordings, and they did
not want to take any steps that would prompt the
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Opinion of the Court
Government to redouble its efforts to do so. The defense
was understandably concerned that, if found, the Govern-
ment would be able to introduce the recordings as a prior
consistent statement, and the recordings would be damag-
ing to Appellant’s case because A1C S.M. would probably
appear distraught and injured, making her a particularly
sympathetic witness.
But the factual landscape had changed by the time A1C
S.M. testified at trial. At that point, it was clear that OSI
had indeed lost the recordings. For example, days before
the start of trial, defense counsel had received discovery
from the Government informing them that the recordings
of the interviews of A1C S.M. had been “deleted” from OSI’s
software system. Further, SI H.O., who testified prior to
A1C S.M., confirmed during cross-examination that the in-
terviews of A1C S.M. had been “recorded” but were subse-
quently “lost.” Therefore, at the time of trial it was no
longer reasonable for the trial defense counsel to fear that
the recordings would somehow surface and be used to Ap-
pellant’s detriment, regardless of how hard the defense
sought to exploit their disappearance. And consistent with
this Court’s holding in Muwwakkil, if the defense had filed
a successful R.C.M. 914 motion the military judge would
have been required to either strike A1C S.M.’s testimony
or declare a mistrial. See 74 M.J. at 194. Thus, at the time
of trial, there was tremendous upside and virtually no
downside for the defense to file that R.C.M. 914 motion.
Despite this reality, the sworn declarations of the trial
defense counsel do not provide a reasonable explanation for
why they did not file the R.C.M. 914 motion. Tellingly, Maj
A.N.’s affidavit does not even directly mention R.C.M. 914
despite the fact that the CCA specifically asked the defense
counsel to address that point.
Capt O.H.’s affidavit does mention R.C.M. 914, but it
focuses on the defense strategy at trial of attacking the
competence of the lead investigator who had failed to retain
a copy of the victim’s recorded statement. But that expla-
nation seems predicated on a false dichotomy. The defense
was not required to choose between undermining the
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Opinion of the Court
credibility of the government investigation on the one hand
and filing an R.C.M. 914 motion on the other. The defense
could have—and should have—taken both tacks. Moreover,
not only were these two approaches not mutually exclusive,
they were not substitutes for one another either. The ben-
efits of successfully pursuing an R.C.M. 914 motion (the
military judge striking the victim’s testimony or declaring
a mistrial) immeasurably outweighed any benefit that
could have been gained by only pursuing a strategy of un-
dermining the lead investigator, particularly because the
crux of this case was the credibility of the testimony of A1C
S.M. and not the competence of the OSI agents.
As outlined below, the trial defense counsels’ affidavits
and the Government’s brief raise a number of points in sup-
port of their argument that Appellant’s trial defense coun-
sel were not ineffective. However, we conclude that none of
these arguments is persuasive.
First, the trial defense counsel seek to explain their in-
action by noting that Sigrah was not decided until after the
instant case went to trial. That is true. However, not only
has R.C.M. 914 been in the Manual for Courts-Martial,
United States, for years, but we also decided Muwwakkil in
2015, and that case made it clear just how powerful R.C.M.
914 can be in circumstances very similar to the instant
case. 74 M.J. at 194. Moreover, the Sigrah case was focused
on the correct test for prejudice at the appellate level when
there was an R.C.M. 914 error at trial, a point that was not
relevant to the defense during Appellant’s court-martial.
See 82 M.J. at 467-68. In other words, the plain language
of R.C.M. 914 and our holding in Muwwakkil were the keys
to the appropriate handling of the instant case at trial—
not Sigrah.
Second, the trial defense counsel seek to explain their
inaction by asserting that they were not sure whether the
recording had ever existed. That was initially true at the
time of pretrial discovery, but by the time of the court-mar-
tial that issue had been resolved. In Capt O.H.’s own words
in her sworn affidavit to the CCA, the IDPs for the investi-
gation stated that “[o]n 26 Oct 20, it was discovered the
15
United States v. Palik, No. 23-0206/AF
Opinion of the Court
SUBJECT [Appellant], VICTIM [A1C S.M.], and VICTIM
[A1C S.M.] follow-up interview recordings were deleted
from the Getac system without copying the videos to a disk.
SI [H.O.] was unaware of the timeframe OSI requires vid-
eos to be copied to a disk.” (Emphasis added.) (Internal quo-
tation marks omitted.) As can be seen, these investigative
notes plainly state that the interviews were recorded, that
they were then deleted, and that the reason they were de-
leted was because SI H.O. did not know of her obligation to
preserve them.
Third, the Government’s argument that the defense had
the burden of convincing the military judge that the record-
ings once existed and that the defense would not have been
able to meet this burden as a predicate for the R.C.M. 914
motion is unavailing. Not only could the defense have cited
the IDPs and SI H.O.’s sworn testimony, 6 the defense also
could have cited the “presumption of regularity” and noted
that it was OSI’s practice to record interviews such as the
ones conducted with the victim in this case. See, e.g.,
United States v. Mark, 47 M.J. 99, 101 (C.A.A.F. 1997)
(“The presumption of regularity entertained in military
law is derived from the one in civilian law which attaches
to routine administrative acts performed by officials of the
Government.”).
Fourth, the mere fact that the recordings no longer ex-
isted provides little support for the Government’s supposi-
tion that the recordings never existed. The record reflects
that the OSI’s software system overwrites a recording after
a certain time frame, and that the lead investigator was
not aware of this point and did not try to retrieve the re-
cordings until more than two months had passed since the
interviews. Therefore, even if we were to assume that the
defense bore the burden of demonstrating that the record-
ings once existed, they could have met that burden if they
had pursued an R.C.M. 914 motion at trial. Moreover, any
6 As necessary, the defense could have further called SI H.O.
as a witness on the motion to provide additional corroboration of
the relevant contents of the IDPs.
16
United States v. Palik, No. 23-0206/AF
Opinion of the Court
argument that a lack of findings by the military judge
makes it difficult to come to a conclusion regarding
whether the recordings once existed not only overlooks the
ample evidence already contained in the record but also
overlooks the important fact that there were no findings
here precisely because—in this case where Appellant is al-
leging ineffective assistance of counsel—the trial defense
counsel unreasonably failed to bring the R.C.M. 914 motion
to begin with.
Fifth, any argument that it was reasonable for defense
counsel to forego an R.C.M. 914 motion because of the
chance that the Government could not only make these de-
leted recordings reappear but also use them to Appellant’s
detriment is misguided. If, contrary to the Government’s
discovery responses and contrary to its own witnesses’ tes-
timony, the Government somehow belatedly managed to
produce the recordings, the defense would have had a
strong argument either to have the military judge bar the
Government from using the recordings or to have the mili-
tary judge declare a mistrial. Under such a scenario, the
defense would be able to persuasively argue that they had
made the strategic decision to bring the R.C.M. 914 motion
and had tailored other aspects of their trial strategy be-
cause they were acting in reasonable reliance on the Gov-
ernment’s repeated assurances that the videos had been
deleted. Trial judges typically take a jaundiced view of such
“sandbagging” techniques by the government. Moreover, if
the military judge declared a mistrial, during any retrial
the defense would remain in the proverbial “driver’s seat”
because the Government could not unilaterally admit the
recordings, and the defense could avoid asking questions of
A1C S.M. that might “open the door” for the Government
to introduce prior consistent statements drawn from the
recordings.
Having determined that the trial defense counsel and
the Government have provided no “ ‘reasonable explana-
tion for counsel’s actions [or inaction],’ ” we now address
the question of whether defense counsel’s level of advocacy
fell “ ‘measurably below the performance . . . [ordinarily
17
United States v. Palik, No. 23-0206/AF
Opinion of the Court
expected] of fallible lawyers.’ ” Gooch, 69 M.J. at 362 (alter-
ations in original) (citation omitted). Stated differently, we
must determine whether counsel’s performance was “defi-
cient” in the context of an ineffective assistance of counsel
claim. Captain, 75 M.J. at 101 (internal quotation marks
omitted) (citation omitted).
At the time of Appellant’s court-martial, the law was
well settled about what the defense should do in a situation
such as this one where a witness testifies, the witness’s
prior statements were recorded by the Government, and
the Government cannot produce that recording because of
its own negligence. See Muwwakkil, 74 M.J. at 190-94.
Namely, the defense should file an R.C.M. 914 motion.
Under these circumstances, the trial defense counsel’s level
of advocacy in this case was indeed deficient because it fell
“ ‘measurably below the performance . . . [ordinarily
expected] of fallible lawyers.’ ” Gooch, 69 M.J. at 362(alterations in original) (citation omitted).
The final question relevant to a determination of
whether the presumption of competence has been overcome
is whether there is “a reasonable probability that, absent
the errors,” there would have been a different result in the
trial proceedings. Id. (internal quotation marks omitted)
(citation omitted). Stated differently, the question is
whether counsel’s deficient performance “resulted in prej-
udice.” Captain, 75 M.J. at 101 (internal quotation marks
omitted) (citation omitted). The answer in this case hinges
on the question of whether there is a “reasonable probabil-
ity that such a motion would have been meritorious.”
McConnell, 55 M.J. at 482 (internal quotation marks omit-
ted) (citation omitted). And the answer to that question is,
“Yes.”
The instant case is strikingly similar to Muwwakkil,
where we stated that a finding of negligence on the part of
the government may serve as the basis to conclude that the
good faith loss doctrine basis does not apply. 74 M.J. at 193.
Contrary to the Government’s argument that the defense
would not have been able to surmount the “good faith loss
doctrine,” the defense had at its fingertips damning
18
United States v. Palik, No. 23-0206/AF
Opinion of the Court
evidence of negligence on the part of OSI. To begin with,
the Government made a choice when it set up a recording
system that would delete witness interview recordings af-
ter a period of time if the recordings were not copied to a
more permanent format. Moreover, OSI assigned SI H.O.
as the lead agent in this case despite her marked lack of
experience as an investigator. She clearly did not under-
stand a fundamental point: when you record a victim’s
statement, you need to preserve it. And yet, it appears that
senior OSI agents failed to adequately supervise SI H.O.’s
actions or to inform her of this important point.
As a consequence, there was a reasonable probability
that the defense would have prevailed on the merits of an
R.C.M. 914 motion. And, as Muwwakkil, 74 M.J. at 194,
and Sigrah, 82 M.J. at 467, make clear, the military judge
would have had only two available remedies: strike the vic-
tim’s testimony or declare a mistrial. 7 Needless to say,
there is a “reasonable probability” that the imposition of
either of these remedies would have led to a different result
in the trial proceedings.
Further, the Government’s argument that the defense
failure to file an R.C.M. 914 is legally excusable because
the defense team performed well overall falls flat. The Su-
preme Court in United States v. Cronic, 466 U.S. 648, 657
n.20 (1984), stated that deficient performance on a single
issue may give rise to an ineffective assistance of counsel
claim. Therefore, regardless of the overall execution of
their responsibilities as defense counsel, the fact remains
that their performance was deficient because they failed to
identify a meritorious and extraordinarily powerful R.C.M.
914 motion readily available to them. See id.7 Unlike the trial defense counsel in Gooch who explained in
their affidavits why they believed a mistrial would not have been
advantageous to their client, 69 M.J. at 362, 362 n.11, the affi-
davits of the trial defense counsel in this case are silent on their
assessments of whether a mistrial would have held either posi-
tive or negative ramifications for Appellant.
19
United States v. Palik, No. 23-0206/AF
Opinion of the Court
In conclusion, we find that on the discrete issue of fail-
ing to bring an R.C.M. 914 motion after A1C S.M. testified
on direct examination as a Government witness, the trial
defense counsel provided ineffective assistance of counsel.
Although we feel compelled to reach this conclusion based
on the facts and the law, by doing so we do not seek to dis-
parage the defense counsel in this case. The fact that they
were successful in getting Appellant acquitted on a number
of specifications serves as a testament to their legal skills,
and based on the contents of their affidavits to the CCA
and on the record before us as a whole, it is apparent to this
Court that Maj A.N. and Capt O.H. acted both ethically and
diligently on behalf of their client. Moreover, we are acutely
mindful of the fact that at the appellate level we have the
opportunity to take the time to reflect at length on various
aspects of a case and the law—a luxury often not afforded
to trial attorneys such as Maj A.N. and Capt O.H. Having
said that, however, as we noted earlier, the Supreme Court
has held that “an attorney’s ignorance of a point of law that
is fundamental to the case combined with the failure to per-
form basic research on that point is a quintessential exam-
ple of unreasonable performance under Strickland.” Hin-
ton, 571 U.S. at 274. Therefore, Appellant’s convictions
cannot stand. See id.V. Decision
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The findings and the sen-
tence are set aside. The record shall be returned to the
Judge Advocate General of the United States Air Force. A
rehearing is authorized.
20
United States v. Palik, No. 23-0206/AF
Judge SPARKS, dissenting.
I agree with Judge Maggs that Appellant’s counsel were
not deficient. I write separately to address the majority’s
conclusion that this Court is able to determine whether
Appellant was prejudiced by his counsels’ shortcomings. To
find prejudice, I believe, requires this Court to make
factual findings about the existence of the recordings in
question and the negligence of the government
investigators, determinations beyond the scope of this
Court’s statutory authority. Because I cannot join the
majority’s analysis of these issues, I respectfully dissent.
Even if I were to conclude that Appellant’s counsel were
deficient, I would remand this case to the lower court for
the factfinding necessary to resolve the issue of whether
Appellant was prejudiced.
I. Standard of Review
This Court reviews de novo allegations of ineffective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 362
(C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470,
474 (C.A.A.F. 2009)). “Ineffective assistance of counsel is a
mixed question of law and fact.” United States v. Anderson,
55 M.J. 198, 201 (C.A.A.F. 2001). “Factual findings are
reviewed under a clearly-erroneous standard of review, but
the ultimate determinations whether counsel were ineffective
and whether their errors were prejudicial are reviewed de
novo.” Id. (citing United States v. Wean, 45 M.J. 461, 463
(1997)). The service Courts of Criminal Appeals have the
specific statutory authority to “determine controverted
questions of fact.” Article 66(d)(1), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 866(d)(1) (2018). However, this
Court has no such statutory authority. See Article 67, UCMJ,
10 U.S.C. § 867.
II. Background
The United States Air Force Court of Criminal Appeals
(AFCCA), described the facts relevant to Appellant’s
allegation of ineffective assistance of counsel as follows:
On 20 and 21 August 2020, SM was
interviewed by AFOSI agents. Although the
agents who conducted the interview believed the
interviews were recorded, the video recordings
United States v. Palik No. 23-0206/AF
Judge Sparks, dissenting
were ultimately “lost.” At trial, Special
[Investigator (SI)] HO testified, “[T]hose
interviews were deleted off the system. There’s an
unknown reason. However, they were deleted
before we were able to put them on a CD.” [SI] HO
realized that the recordings were missing on 26
October 2020.
On 19 November 2020, AFOSI notified the
base legal office about the missing videos. On 23
July 2021, assistant trial counsel informed
Appellant’s trial defense counsel that “any
[AF]OSI recorded interview of [SM] was lost and
that no member of the legal office has previously
reviewed any AFOSI recorded interview of [SM].”
After SM testified at Appellant’s court-martial
on behalf of the Government, trial defense counsel
did not make a motion under R.C.M. 914 asking
the military judge to order the Government to
produce the allegedly video-recorded statements
SM made to AFOSI, or request any remedy based
on the Government’s inability to produce such
statements.
United States v. Palik, No. ACM 40225, 2023 CCA LEXIS
185, at *15-16, 2023 WL 3151086, at *6 (A.F. Ct. Crim.
App. Apr. 28, 2023) (second, fourth, fifth, and sixth
alterations in original) (unpublished). The AFCCA ordered
affidavits from Appellant’s trial defense team explaining
their reasons for not filing a Rule for Courts-Martial
(R.C.M.) 914 motion.
In analyzing Appellant’s claim of ineffective assistance
of counsel, the AFCCA concluded that Appellant’s trial
defense counsel “articulated a reasonable rationale for not
[seeking production of the victim’s recorded statements]—
they could not confirm that the video recordings in question
ever existed, and feared they might exist.” They further
explained that Appellant’s counsel made a strategic
decision “not to press the Government to either search for
the videos or produce the videos because they did not think
it would be helpful to Appellant’s defense.” And finally, the
AFCCA determined that “it was reasonable for Appellant’s
defense counsel to question whether the video recorded
interviews existed because the videos had never been
viewed by AFOSI agents or any member of the prosecution
2
United States v. Palik No. 23-0206/AF
Judge Sparks, dissenting
team.” All of these conclusions by the AFCCA are
predicated on its recognition that there was a legitimate
question as to whether S.M.’s interviews were ever, in fact,
recorded.
III. Analysis
Because the AFCCA found that Appellant’s trial
defense counsel were not deficient, it did not reach the
question of whether Appellant was prejudiced by his
attorneys’ failure to file a R.C.M. 914 motion. Such an
analysis would require it to examine whether the record
supports findings that: (1) the interviews were recorded;
(2) the recordings were lost; (3) the loss was the result of
the Government’s negligence; and (4) the Government’s
negligence was sufficient to preclude the application of the
good faith loss doctrine. Perhaps the AFCCA could make
these findings based solely on the record of trial or they
may find that a DuBay hearing is necessary to further
develop the record, but that is not up to this Court to
decide. United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.
411 (1967). Nonetheless, the majority has determined that
the record is sufficient to answer each of these questions,
so I will briefly discuss my concern with that
determination.
First, the majority finds that the interviews of S.M.
were recorded. I do not dispute that the record supports
such a finding, but this is exactly the sort of finding that
must be made by a court with factfinding authority. I will
also note that there is evidence in the record to dispute
such a finding. And indeed, the AFCCA found in this case
that “it was reasonable for Appellant’s defense counsel to
question whether the video recorded interviews existed
because the videos had never been viewed by AFOSI agents
or any member of the prosecution team.” Even if it was
unreasonable for Appellant’s trial defense counsel not to
file the R.C.M. 914 motion based on the record at that point
in time, as the majority concludes, that does not mean it
was unreasonable for them to question whether the videos
ever actually existed. While the majority is quick to
conclude that Special Investigator (SI) H.O. negligently
failed to download the recordings, they brush off the
3
United States v. Palik No. 23-0206/AF
Judge Sparks, dissenting
possibility that SI H.O. just as easily could have failed to
record the interviews in the first place.
Second, it is impossible to conclude that the recordings
were lost without concluding that they existed in the first
place. This may seem like a trivial concern, but again, it is
the exact sort of factual finding that this Court is not
authorized to make.
Third, the majority concludes that the loss of the
recordings was due to the negligence of the Government. In
describing this conclusion, the majority explains:
[d]ays before the start of trial, the trial defense
counsel received OSI case file documentation
indicating that the lead OSI investigator for the
case was unaware of the time period after which
the recordings would be erased or overwritten by
subsequent recordings, and that the videos of A1C
S.M.’s interviews had been deleted from the
recording system without having been
downloaded.
United States v. Palik, __ M.J. __, __ (2) (C.A.A.F. 2024).
They base this conclusion on the fact that prior to trial
Appellant’s trial defense counsel received investigation
notes that stated, “On 26 Oct 20, it was discovered the
SUBJECT, VICTIM [S.M.] follow-up interview video
recordings were deleted from the Getac system without
copying the videos to a disk. SI [H.O.] was unaware of the
timeframe OSI requires videos to be copied to a disk.” I
point out here that this investigative note is just that, a
note from the investigator and not an actual record of the
recording having been deleted.
The majority incorrectly concludes that the
investigation notes and the investigator’s testimony at trial
that the recordings were “lost,” demonstrate that the
videos were lost due to the Government’s use of a system
that automatically deletes recordings after a set amount of
time. Contrary to the majority’s conclusion, no Government
agent testified that this is the way the recording system
works. Rather, this conclusion is based on the affidavits of
Appellant’s trial defense counsel, who claim that based on
their own experience dealing with OSI, “interviews
captured on their recording devices are not indefinitely
4
United States v. Palik No. 23-0206/AF
Judge Sparks, dissenting
maintained on the recording device and will be erased after
a certain period of time or may be overwritten by
subsequent recordings.” Thus, the majority assumes that
the loss of the recording was due to the investigator’s
failure to download the video before it was automatically
erased or overwritten by subsequent recordings. SI H.O.,
in fact, testified that the videos were deleted from the
system for “an unknown reason. However they were
deleted before we were able to put them onto a CD.”
Simply put, SI H.O.’s testimony does not establish that
OSI actually implemented a recording system that
automatically deletes recordings. Even if that is the case,
the record leaves open the question of whether the
recording was deleted automatically because the agent
failed to download it quickly enough or due to some other
malfunction. Again, this is the sort of controverted question
of fact that should be determined by the CCA, rather than
this Court.
Fourth, the majority assumes, based on their finding of
negligence by the Government, that the good faith loss
doctrine would not apply in this case. Even assuming that
the recordings did exist, I have already discussed why it is
possible to conclude that the loss was not necessarily due
to the Government’s negligence. Additionally, I must point
out that even if the Government’s loss of the recordings was
due to negligence, that does not necessarily foreclose the
application of the good faith loss doctrine. The majority
correctly points out that in our previous decision in United
States v. Muwwakkil, we concluded that the good faith loss
doctrine is “generally limited in its application” and the
military judge did not abuse her discretion by not applying
the doctrine when the government’s loss of the recordings
in question was due to negligence. 74 M.J. 187, 193
(C.A.A.F. 2015) (internal quotation marks omitted)
(citation omitted). However, we have never explicitly ruled
that the loss of recordings due to the government’s
negligence prohibits the application of the good faith loss
doctrine. Indeed, in Muwwakkil, we cited approvingly
United States v. Marsh, a case in which our predecessor
court concluded that the military judge did not abuse his
discretion when he denied a R.C.M. 914 motion despite the
5
United States v. Palik No. 23-0206/AF
Judge Sparks, dissenting
fact that the loss of the recordings in question was due to
at least some negligence by the Government, but not gross
negligence. 21 M.J. 445, 447, 451-52 (C.M.A. 1986). While
I understand the majority’s belief that the Government’s
negligence here should preclude the application of the good
faith loss doctrine, our case law simply does not demand
that it be so.
IV. Conclusion
Because I believe that Appellant’s counsel were not
deficient, I respectfully dissent. As explained above, even if I
did agree with the majority that Appellant’s counsel were
deficient, I believe there are important controverted
questions of fact that must be resolved before this Court can
determine whether Appellant was prejudiced by that
deficiency and I would remand this case to the AFCCA for the
determination of whether Appellant was prejudiced by his
counsels’ deficiencies.
6
United States v. Palik, No. 23-0206/AF
Judge MAGGS, with whom Judge SPARKS joins,
dissenting.
The Court concludes that trial defense counsel were de-
ficient when they failed to file an Rule for Courts-Martial
(R.C.M.) R.C.M. 914 motion at trial for production of re-
cordings that investigators may have made when they in-
terviewed the named victim. The Court reasons that, “it
was clear that [the Office of Special Investigations (OSI)]
had indeed lost the recordings,” and during trial it was
therefore “no longer reasonable for the trial defense coun-
sel to fear that the recordings would somehow surface and
be used to Appellant’s detriment.” The Court concludes
that under these circumstances, trial defense counsel
should have made the R.C.M. 914 motion because if the
military judge had ordered the Government to produce re-
cordings, and the Government could not comply with the
order, then the military judge would have been required
either to strike the named victim’s testimony or declare a
mistrial. The Court determines that trial defense counsel’s
failure to file the R.C.M. 914 motion prejudiced Appellant
because either of these remedies would have changed the
result of the case.
I respectfully disagree with the Court’s determination
that trial defense counsel were deficient. My disagreement
rests on three grounds. First, in my view, trial defense
counsel had reasonable grounds, at the time of trial, to be-
lieve that filing an R.C.M. 914 motion would have been fu-
tile, and “[a]n attorney’s decision to forego taking actions
that likely would be futile is not deficient.” United States v.
Palacios Cueto, 82 M.J. 323, 329 (C.A.A.F. 2022). If trial
defense counsel had filed an R.C.M. 914 motion, they could
have reasonably expected the Government to oppose it vig-
orously on the grounds that Appellant could not prove that
the investigators ever created the recordings because no
one had ever seen them. Even if trial defense counsel had
responded by citing Special Investigator (SI) H.O.’s state-
ment that the recordings were created and then lost, trial
defense counsel could have reasonably expected that this
statement alone would not stand up to scrutiny. The Gov-
ernment’s position likely would have been exactly the same
as it is today:
United States v. Palik, No. 23-0206/AF
Judge MAGGS, dissenting
While SI HO testified that the recordings were
“deleted,” that assertion was an assumption made
to explain the absence of the recordings. When
asked how the interviews were deleted off the sys-
tem, she stated “[t]here’s an unknown reason.”
This indicates OSI was unable to confirm the rea-
son the recordings did not exist in their system. SI
HO testified it was OSI policy to record inter-
views. When she realized the recordings did not
exist on the system, she jumped to a conclusion to
explain their absence.
But as Capt OH acknowledged in her declara-
tion, other occurrences could have explained the
absence of the videos on the OSI recording system.
It was possible that the interviews (1) were never
recorded in the first place due to user error with
the software system or (2) were never recorded be-
cause the recording system malfunctioned.
Brief for Appellee at 13-14, United States v. Palik, No. 23-
0206 (C.A.A.F. Oct. 10, 2023) (emphasis added) (citations
omitted). Trial defense counsel could have reasonably be-
lieved that the military judge would have accepted the Gov-
ernment’s argument and, therefore, that filing the R.C.M.
914 motion would have been unsuccessful.
Second, I do not agree with the Court’s reasoning that
“at the time of trial it was no longer reasonable for the trial
defense counsel to fear that the recordings would somehow
surface and be used to Appellant’s detriment.” At the time
of trial, no one could explain how or why the recordings—
if they ever existed—were not still on the OSI recording
system. SI H.O. stated that they were missing for “an un-
known reason.” I agree with the Government’s argument
that, without knowing how the alleged recordings had dis-
appeared, trial defense counsel could harbor reasonable
doubts that the recordings would not be found. Indeed, con-
sistent with this argument, trial defense counsel’s affidavit
explains:
It is not unheard of for OSI to later supplement a
case file with additional evidence and I was not
confident that would not occur in this case because
this OSI detachment has previously investigated
a separate case in which several discs of video
2
United States v. Palik, No. 23-0206/AF
Judge MAGGS, dissenting
surveillance not originally associated with its case
file were later found on the eve of trial.
Third, I disagree with a key aspect of the Court’s legal
reasoning. The Court’s theory, at bottom, is that the Sixth
Amendment required trial defense counsel to move for an
order requiring the Government to produce recordings that
trial defense counsel sincerely hoped that the Government
could not produce based on a further hope that the military
judge would penalize the Government for not being able to
comply. Does the Constitution truly require trial defense
counsel to make such a disingenuous request for produc-
tion? Even if the Court’s statement that “there was tremen-
dous upside and virtually no downside for the defense to
file that R.C.M. 914 motion” is true, a simple balancing of
possible costs and benefits is not the test for ineffective as-
sistance of counsel under the Sixth Amendment. “In deter-
mining whether an attorney’s conduct was deficient we do
not simply ask whether the attorney did everything possi-
ble that posed little or no risk to the client.” Palacios Cueto,
82 M.J. at 329. Instead, the test is whether “counsel’s con-
duct falls within the wide range of reasonable professional
assistance.” United States v. Scott, 81 M.J. 79, 84 (C.A.A.F.
2021) (internal quotation marks omitted) (quoting Strick-
land v. Washington, 466 U.S. 668, 689 (1984)). Failing to
bring similar motions has been held not to constitute inef-
fective assistance of counsel. 1
1 For example, in Lax v. Duckworth, defense counsel learned
that in its response to a valid discovery request, the government
had failed to produce a mug shot of his client that had been used
in a photo array. No. 89-1384, 1990 U.S. App. LEXIS 19824, at
*2, 1990 WL 174970, at *1 (7th Cir. Nov. 9, 1990) (unpublished
order). Defense counsel, however, did not move for a continuance
and did not file an additional discovery motion. Id. at *4-5, 1990
WL 174970, at *2. The United States Court of Appeals for the
Seventh Circuit rejected the defendant’s subsequent claim of
ineffective assistance of counsel. Id. at *4-5, 1990 WL 174970, at
*2. It held that “[b]ecause the . . . mug-shot would have made no
difference in the case, [defense] counsel did not err in failing to
request a continuance” and that defense “[c]ounsel was not
ineffective for failing to file repetitive discovery motions in the
hopes of turning up the . . . mug-shot.” Id. at *5-6, 1990 WL
174970, at *2.
3
United States v. Palik, No. 23-0206/AF
Judge MAGGS, dissenting
For these reasons, I conclude that trial defense counsel
were not deficient in their performance. Their representa-
tion, instead, fell within the wide range of reasonable pro-
fessional assistance. Seeing no deficiency, I would not
reach the issue of prejudice. I therefore respectfully dissent
and would affirm the decision of the United States Air
Force Court of Criminal Appeals.
4