United States v. Hunter ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HOLIFIELD, and LAWRENCE
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Joseph L. HUNTER
Culinary Specialist First Class (E-6), U.S. Navy
Appellant
No. 201900154
Decided: 16 November 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Shane E. Johnson (arraignment and motions)
Stephen C. Reyes (trial)
Sentence adjudged 1 February 2019 by a general court-martial
convened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of
officer members. Sentence approved by the convening authority:
reduction to E-1, total forfeiture of pay and allowances, confinement
for 14 months, and a bad-conduct discharge.
For Appellant:
Lieutenant Gregory Hargis, JAGC, USN
For Appellee:
Lieutenant Kevin G. Edwards II, JAGC, USN
Lieutenant Commander Timothy C. Ceder, JAGC, USN
Chief Judge Emeritus CRISFIELD delivered the opinion of the Court,
in which Senior Judge HOLIFIELD and Judge LAWRENCE joined.
United States v. Hunter, NMCCA No. 201900154
Opinion of the Court
_________________________
This opinion does not serve as binding precedent but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
CRISFIELD, Chief Judge Emeritus:
Appellant was convicted, contrary to his pleas, of two specifications of at-
tempted sexual abuse of a child, in violation of Article 80, Uniform Code of
Military Justice [UCMJ], 10 U.S.C. § 880. He raises a single assignment of
error: that he was denied the effective assistance of counsel by his trial
defense counsel team’s failure to effectively utilize the services of an expert
consultant. After careful consideration of the record of trial and the pleadings
of the parties, we find no prejudicial error and affirm.
I. BACKGROUND
Appellant searched the “casual encounters” section of Craigslist for sexual
companionship. He found a promising advertisement titled “lonely summer”
in which the poster stated they lived on Hickam and were looking to meet
someone to “just have fun for the summer.” 1 Appellant replied to the adver-
tisement, stating that he lived close to Hickam and inviting the poster to
meet with him. Three days later, he received a response from “Liz Lizzy,” 2
who inquired if Appellant was in the military. Appellant replied quickly and
stated that he was in the military and worked at Pearl Harbor, close to Liz
Lizzy’s location. She replied, “Yeah i live with my parents I am 14 about to
turn 15.” 3 Appellant then asked, “And what u looking for.”
The emails back and forth continued in the curious vernacular of modern
social media conversation. Appellant: “I never been with a woman that young
though. What u got to offer me. You like older guys.” 4 The conversation
1 Pros. Ex. 2.
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
3 Pros. Ex. 3 at 4.
4 Id. at 14.
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 United States v. Hunter, NMCCA No. 201900154
Opinion of the Court
eventually migrated to a social media application. On that app, Appellant
learned that Liz Lizzy was actually “Emily.” Appellant asked where Emily’s
parents were, if she was home alone, and if she was in high school. He swiftly
turned the conversation to sexual topics and expressed his desire for Emily to
masturbate him. Less than two hours after the start of their conversation,
Appellant asked Emily, “are u home alone now.” 5 They then started making
arrangements to meet at Emily’s house on the base at Hickam. Emily gave
Appellant directions to her house and Appellant drove there to meet her. Less
than three hours after their conversation started, Appellant was at Emily’s
front door in anticipation of their imminent sexual encounter.
Of course, Liz Lizzy/Emily was not a fourteen-year-old girl at all, but ra-
ther was a male Air Force Office of Special Investigations [AFOSI] special
agent posing as an underage girl as part of an online “to catch a predator”
operation. When Appellant showed up at the door of the house where he
believed he was about to get sexual relief from his new fourteen-year-old
friend, he was apprehended by AFOSI special agents. Appellant was ques-
tioned by Naval Criminal Investigative Service special agents later that day
and—although disputing how early in the conversation he realized she was
only fourteen years old—confessed that he knew Emily was fourteen years
old at the time he showed up at her door.
In preparing for trial, Appellant requested that a particular forensic psy-
chologist, Dr. GH, be provided as an expert consultant to examine Appellant’s
risk of recidivism and mental condition, as well as the reliability of his
confession. The convening authority denied the specific request for Dr. GH
but appointed another forensic psychologist, Dr. RK, as a substitute and
granted twenty hours of pretrial consultation.
Dr. RK’s brief relationship with the trial defense counsel [TDC] team was
marked by miscommunication and misunderstanding. In the course of her
forensic examination she informed Appellant that the TDC team was not
representing his interests well. Her gratuitous opinion sprang from her
misunderstanding about how Appellant’s TDC team and its workload were
organized and distributed. Following the examination, Dr. RK informed an
associate civilian counsel on the TDC team that Appellant had no predisposi-
tion to commit the alleged offenses and no risk of recidivism. She also stated
that she had used up the twenty hours of funding and would require more
money before she could discuss the details of her findings.
5 Pros. Ex. 4 at 4.
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United States v. Hunter, NMCCA No. 201900154
Opinion of the Court
The lead civilian defense counsel [CDC] moved to have Dr. RK replaced as
a paid consultant by his originally requested expert, Dr. GH, due to the TDC
team’s and Appellant’s loss of confidence in Dr. RK’s services. They were
concerned that Dr. RK was undermining the relationship between Appellant
and his Defense team. The military judge denied the motion but approved an
additional ten hours of consultation time and one day of in-court testimony
from Dr. RK. The military judge found that Dr. RK’s testimony was “poten-
tially” relevant for sentencing purposes even though it was unclear whether
it would be useful on the merits. There followed an extended period where
CDC was unable to get in touch with Dr. RK while she was vacationing in
Europe. Finally, upon Appellant’s motion to once again remove Dr. RK based
on her unavailability and substitute Dr. GH, the military judge granted the
request.
The TDC team’s relationship with Dr. GH was also marked by miscom-
munication and confusion. Dr. GH wanted to obtain copies of Dr. RK’s foren-
sic analysis to assist in his own analysis. To that end he asked the CDC to
have Appellant sign a release form and provide it to Dr. RK so she would
transfer the information to him. The CDC tasked Appellant to sign the
release and to personally deliver it to Dr. RK, but Appellant neglected to
perform the task until he was repeatedly reminded by the TDC team. Appel-
lant signed the form over a month later and gave it back to the TDC team,
who then provided it to Dr. GH, but it is unclear what happened to it then.
Dr. GH never obtained any records from Dr. RK and, for reasons that are
unclear, never performed his own examination of the Appellant. Dr. RK later
stated that she would not have required a release from Appellant and would
have provided her work to Dr. GH even without one. The CDC consulted with
Dr. GH and discussed the conclusions that Dr. RK said she had reached, but
the Defense did not further use Dr. GH’s services. No expert testified at trial,
either on the merits or during sentencing.
II. DISCUSSION
Appellant Received Effective Assistance of Counsel
Appellant asserts that his TDC were ineffective for failing to investigate
the results of Dr. RK’s evaluation; failing to deliver those findings to Dr. GH;
and failing to have Dr. GH evaluate Appellant. He argues that investigation
and presentation of Dr. RK’s findings and evaluation by Dr. GH may have
provided reasonable doubt and resulted in acquittal. Further, Appellant
argues that the failure to investigate prevented the members from hearing
expert testimony in sentencing that likely would have resulted in a lesser
sentence.
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United States v. Hunter, NMCCA No. 201900154
Opinion of the Court
We review claims of ineffective assistance of counsel de novo. United
States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). In order to prevail on a
claim of ineffective assistance of counsel, an appellant must demonstrate
both (1) that his counsel’s performance was deficient, and (2) that this defi-
ciency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984).
1. Appellant has not demonstrated that his counsel were deficient
With respect to Strickland’s first prong, counsel are presumed to be com-
petent and our inquiry into an attorney’s representation is “highly deferen-
tial.” Id. at 689. We employ “a strong presumption that counsel’s conduct falls
within the wide range of professionally competent assistance.” Id. Appellant
has the heavy burden of establishing a factual foundation for a claim of
ineffective representation. See United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000) (“sweeping, generalized accusations” will not satisfy an
appellant’s foundational burden).
We will not second-guess strategic or tactical decisions made by the TDC
unless Appellant can show specific defects in counsel’s performance that were
unreasonable under prevailing professional norms. United States v. Mazza,
67 M.J. 470, 475 (C.A.A.F. 2009).
We do not believe that Appellant has carried his burden of establishing a
factual foundation that testimony from a forensic psychologist—whether
Dr. RK or Dr. GH—would have provided a viable defense to the charge and
specifications or would have mitigated his sentence. Dr. RK provided an
eight-page affidavit which includes but one sentence regarding her findings:
“Generally, I recall finding that CS1 Hunter was susceptible to the suggesti-
bility of investigators and had a very low risk of recidivism.”6 Appellant has
presented no evidence about his TDC’s discussions with, or any conclusions
reached by, Dr. GH.
The record establishes that TDC consulted with both Dr. RK and Dr. GH
and made a decision to not call a forensic psychologist to testify at trial. We
employ a strong, but rebuttable, presumption that those consultations and
that decision were within the wide range of professionally competent assis-
tance. We find that Appellant has fallen far short of presenting a foundation
to overcome that presumption. Therefore, Appellant has failed to satisfy the
first prong of Strickland.
6 Appellant’s Brief, Appendix A at 7.
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United States v. Hunter, NMCCA No. 201900154
Opinion of the Court
2. Appellant has not demonstrated that he was prejudiced by a deficiency
Assuming, arguendo, that Appellant had established that his TDC were
professionally deficient, we would still find no prejudice under Strickland’s
second prong. In order to show prejudice, an appellant “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Strick-
land, 466 U.S. at 694. “Moreover, a verdict or conclusion only weakly sup-
ported by the record is more likely to have been affected by errors than one
with overwhelming record support.” Id. at 696.
On the merits, the evidence against Appellant was overwhelming. The
Defense argued both entrapment and mistake-of-fact defenses, but neither
was viable.
For the entrapment defense to prevail, “the defense has the initial burden
of . . . show[ing] that a government agent originated the suggestion to commit
the crime.” United States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992). Once the
defense has met its burden, the burden shifts to the government to prove
beyond a reasonable doubt either: (1) that the “criminal design did not
originate with the Government”; or (2) “that the accused had a predisposition
to commit the offense prior to first being approached by Government agents.”
Id. (citation and internal quotation marks omitted). “The bottom line is that
entrapment has two elements: government inducement and an accused with
no predisposition to commit the offense.” United States v. Howell, 36 M.J.
354, 358 (C.A.A.F. 1993).
Appellant contends that the Government induced him to commit the of-
fenses, but it is clear from the evidence that Appellant was the first to sug-
gest a sexual relationship with a fourteen-year-old. The mere fact that the
Government posted the “lonely summer” advertisement on Craigslist does not
constitute inducement. There is no inducement where government agents
simply provide “the opportunity or facilities to commit the crime.” United
States v. Hall, 56 M.J. 432, 437 (C.A.A.F. 2002).
Appellant also contends that there is no evidence that he had a predispo-
sition to commit the offenses—he had no criminal background, and the
Government failed to show that he had previously sought out underage
individuals for sex or that he searched for or looked at child pornography.
However, the evidence amply proves his predisposition. His swift pursuit of
sexual contact with Emily, even after being told she was fourteen years old,
demonstrates his predisposition. He initiated the sexual conversation with
Emily, described in detail the sexual acts he wanted her to perform on him,
requested pictures from her, and asked multiple questions to establish the
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Opinion of the Court
logistical feasibility of meeting her to engage in sexual activity as soon as
possible. Appellant’s sole concern after being told by Emily that she was
fourteen was whether she was a real person. Her age was not even a speed
bump on his path to sexual relief. Appellant’s interactions with Emily
demonstrated his readiness and willingness to commit the offenses. His
behavior was not that of a law-abiding citizen or a person undisposed to
committing sexual acts with minors. Less than three hours after they started
conversing online, Appellant was at Emily’s door.
Appellant also contends that his sentence would have likely been less se-
vere if a forensic psychologist had testified that he was at low risk of recidi-
vism. Again, assuming, arguendo, that his TDC were deficient in failing to
present expert testimony, we find that Appellant was not prejudiced by the
failure of his counsel to present such evidence. Facing the possibility of a
sentence including twenty years’ confinement and a dishonorable discharge,
Appellant received only fourteen months and a bad-conduct discharge for his
offenses. Obviously, the members either found that he was not a significant
risk to re-offend in the near future, or they were not particularly concerned
about him re-offending. We find no reasonable probability that his sentence
would have been less than fourteen months’ confinement and a bad-conduct
discharge if an expert had testified that he was a low risk for recidivism.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. UCMJ arts. 59, 66. Accordingly, the findings and sen-
tence as approved by the convening authority are AFFIRMED.
Senior Judge HOLIFIELD and Judge LAWRENCE concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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