United States v. Christopher

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600249
_________________________
UNITED STATES OF AMERICA
Appellee
v.
D’URVILLE A. CHRISTOPHER
Cryptologic Technician (Technical) First Class (E-6), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Trial - Colonel Valerie C. Danyluk, USMC;
Resentencing - Captain Bethany L. Payton-O’Brien, JAGC, USN.
Convening Authority: Commandant, Naval District Washington,
Washington, D.C.
Staff Judge Advocate’s Recommendation: Commander J.A. Link,
JAGC, USN.
For Appellant: Catherine M. Cherkasky, Esq.; Lieutenant Jacob E.
Meusch, JAGC, USN.
For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
USN; Lieutenant Megan P. Marinos, JAGC, USN.
_________________________
Decided 28 December 2017
_________________________
Before the court en banc.1
J ONES , J., delivered the opinion of the court, G LASER -A LLEN , C.J.,
M ARKS , S.J., S AYEGH , J., and W OODARD , J., concurring.
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
1 HUTCHISON, S.J., PRICE, J., and FULTON, J., took no part in the decision of the
case.
United States v. Christopher, No. 201600249
JONES, Judge:
At a contested general court-martial, officer and enlisted members
convicted the appellant of three specifications of assault consummated by a
battery upon a child and one specification of indecent acts with a child,
violations of Articles 128 and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 928 and 934. The members sentenced the appellant to six years’
confinement, reduction to pay grade E-1, and forfeiture of all pay and
allowances.
At a post-trial Article 39(a), UCMJ, session, the military judge dismissed
two of the Article 128, UCMJ, assault convictions for being outside of the
statute of limitations, and granted a mistrial for sentencing. Subsequently, a
new panel of officer and enlisted members sentenced the appellant to two
years’ confinement, reduction to pay grade E-1, and a dishonorable discharge.
The convening authority (CA) approved only the two years’ confinement and
reduction to pay grade E-1 and ordered the sentence executed.
The appellant raises nine original assignments of error (AOEs): (1) the
court-martial lacked in-personam jurisdiction over him because he was a
retired servicemember; (2) his trial defense team was ineffective in allowing
him to plead guilty to a charge that was barred by the statute of limitations; 2
(3) the military judge abused her discretion by not advising the appellant of
his right to assert the protection of the statute of limitations prior to her
acceptance of his pleas; (4) the military judge abused her discretion by not
granting a mistrial for the entire proceedings when the appellant withdrew
his guilty plea to an offense the military judge had informed the members he
committed; (5) the military judge abused her discretion by not granting a
mistrial as to the merits after the members convicted the appellant of two
offenses barred by the statute of limitations; (6) the military judge abused her
discretion by not granting the defense an expert in forensic child psychology;
(7) his conviction for indecent acts with a child is legally and factually
insufficient because the members’ finding was ambiguous as to whether the
offense fell within the statute of limitations; (8) his conviction should be
overturned based on the cumulative error doctrine; and (9) the military judge
erred in instructing the members that they “must” find him guilty if they
were firmly convinced of his guilt.
In a Supplemental Brief, the appellant raises seven additional AOEs: (10)
the CA erred in approving his reduction in pay grade; (11) his due process
rights were violated when he was involuntarily extended on active duty; (12)
the CA’s post-trial action contains prejudicial error; (13) the government
2 He later withdrew this plea.
2
United States v. Christopher, No. 201600249
violated the Jenck’s Act3; (14) the staff judge advocate’s recommendation
(SJAR) constituted prejudicial error; (15) his conviction for assault
consummated by a battery on a child is legally and factually insufficient; and
(16) the government violated his rights by withholding from him the record of
trial.4
We have examined the record of trial and considered the oral argument
presented by the parties. We conclude that the court-martial had personal
jurisdiction over the appellant, but we find that the appellant’s trial defense
team was ineffective because they erroneously concluded that the statute of
limitations was inapplicable to his case. In our decretal paragraph we set
aside the convictions and authorize a rehearing.
I. BACKGROUND
The appellant had 19 years of active duty service in February 2013 when
his step-daughter, EH, reported that he had sexually assaulted her and
physically abused her and her two step-siblings from 2000 to 2007. At the
time she reported the incidents, EH was on active duty in the U.S. Navy. The
Naval Criminal Investigative Service (NCIS) opened an investigation into the
charges. As part of their investigation, they assisted EH in making a pretext
phone call to the appellant, wherein he admitted he had touched her
inappropriately years earlier.
As a result, the appellant’s command put him on legal hold in April 2014
and informed him of that status. At this same time, however, the appellant
was also processing through the Physical Evaluation Board (PEB) system to
determine if he would be medically retired. Despite the command’s efforts to
prevent it, the appellant received a DD Form 214 (Certificate of Release or
Discharge from Active Duty) for medical retirement in June 2014. When the
error was identified, the government issued the appellant a DD Form 215
(Correction to DD Form 214), purportedly nullifying the invalid discharge.
After his arraignment, the appellant filed a motion to dismiss all charges,
averring that the government lacked personal jurisdiction over him. The
military judge denied the motion, and the appellant filed a Petition for
Extraordinary Relief in the Nature of a Writ of Mandamus with this court
3 18 U.S.C. § 3500.
4 AOEs 10-16 are raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
3
United States v. Christopher, No. 201600249
seeking relief. We denied the Petition5 and the appellant then sought relief
from the Court of Appeals for the Armed Forces, which also denied relief.6
Prior to trial, the appellant pled not guilty to all charges and
specifications. But on the eve of trial, he changed his plea to the Additional
Charge and its sole specification, indecent acts with a child (EH), by pleading
guilty—by exceptions—to the lesser-included offense of assault consummated
by a battery upon a child for touching EH’s breast and leg. This plea was
consistent with what the appellant had admitted during the NCIS pretext
phone call. But during the providence inquiry, the appellant maintained the
offense occurred in July 2003, not June 2004, as the government had charged.
After discussing the issue with the parties, the military judge decided that an
11-month difference in the pleading satisfied the “on or about” language of
the specification, and she accepted the appellant’s plea.7
However, this date difference was significant because effective 24
November 2003 Congress modified Article 43, UCMJ, by extending the
statute of limitations for child abuse offenses from 5 years from the date of
the offense to the child attaining the age of 25 years.8 Accordingly, an offense
occurring in July 2003 was barred from prosecution by the statute of
limitations in 2008.
When the trial began, the military judge informed the members of the
appellant’s guilty plea to the lesser included offense of assault consummated
by battery of EH.9 However, the recorded providence inquiry was never
5Christopher v. United States, No. 201500066, 2015 CCA LEXIS 151,
unpublished op. (N-M. Ct. Crim. App. 21 Apr 2015).
6 Christopher v. United States, 75 M.J. 2 (C.A.A.F. 2015).
7 But see, United States v. Brown, 34 M.J. 105 (C.M.A. 1992) (noting that the
language “on or about” in a specification generally connotes a time within a few
weeks of that date).
8 National Defense Authorization Act for FY 2004, Pub. L. No. 108-136, Section
551, 117 Stat. 1392, 1481 (2003).
9 After empaneling the members, the military judge advised them:
As to the sole Specification under the Additional Charge, the
accused has entered a plea of . . . Not Guilty to the sole Specification
and its Charge [Indecent Acts with a Child], but Guilty to a lesser-
included offense in violation of Article 128, assault consummated by a
battery upon a child under 16 with exceptions and substitutions.
The accused’s plea of guilty to this lesser-included offense admits
some of the elements of the offense charged in that Specification . . . .
These elements are therefore established by the accused’s plea
without need for further proof.
4
United States v. Christopher, No. 201600249
played for the members and no statements made by the appellant during the
inquiry were ever disclosed to the members. Additionally, the military judge
never specified that the appellant had pled to the offense occurring in July
2003, vice June 2004 date alleged by the government on the charge sheet.
During EH’s testimony, she mentioned, for the first time, that she had
sought psychiatric care related to the alleged abuse. There was a pause in the
trial as the medical records were reviewed by the judge in camera. From this
review, it was discovered that EH was also receiving disability compensation
from the government for a mental health issue connected with the alleged
abuse. The appellant, frustrated with this late disclosure and now aware of a
potential financial motive for EH to be untruthful, moved to withdraw his
plea and asked for a mistrial. The military judge granted his request to
withdraw his plea, but denied the motion for a mistrial. The military judge
then instructed the members to merge Specification 1 of Charge II with the
sole specification of the Additional Charge,10 bringing under a single
specification all of the indecent acts with a child EH alleged occurred on a
certain night in June 2004.11
The members convicted the appellant of three specifications of assault
consummated by a battery upon a child and one specification of indecent acts
....
[T]he accused—by exceptions and substitutions, the accused has pled
Guilty, excepting out the language “rubbing her breasts” plural, and
substituting the words “grabbing her breast” singular.” Record at
436-37.
10 Prior to the merger, the two specifications read as follows:
Charge II, Specification 1: In that [the appellant] , . . . did, at or
near Moreno Valley, California, on or about June 2004, commit an
indecent act upon the body of [EH], then 13 years of age and not his
wife, by rubbing her vagina over her clothes with his hands, with
intent to arouse his own sexual desires, and such conduct was of a
nature to bring discredit upon the armed forces.
Additional Charge, Specification: In that [the appellant], . . . did
at or near Moreno Valley, California, on or about June 2004, commit
an indecent act upon the body of [EH], then 13 years of age and not
his wife, by rubbing her breasts and her legs over her clothes with his
hand, with intent to arouse his own sexual desires, and such conduct
was of a nature to bring discredit upon the armed forces.
Charge Sheet.
11 EH also alleged sexual misconduct against the appellant that occurred on two
different nights, for which the appellant was acquitted. He was also acquitted of
other offenses occurring after 23 November 2004.
5
United States v. Christopher, No. 201600249
with a child (EH), violations of Articles 128 and 134, UCMJ. Two of the
assault convictions were for actions committed against his natural children in
2000-2001, and the other assault conviction was for strangling EH in 2006.
The indecent acts with a child involved touching EH in June 2004.
Sometime after the trial ended, the appellant hired new civilian defense
counsel who informed him that three of his four convictions were barred by
the statute of limitations. In response, the appellant released both his
military counsel and his original civilian defense counsel and filed a motion
for a mistrial on the merits. The military judge dismissed with prejudice the
two Article 128, UCMJ, violations on his natural children—from 2000-2001—
as being outside the statute of limitations. But she refused to dismiss the
Article 134, UCMJ, indecent acts against a child charge involving EH and the
disputed dates, reasoning that the evidence at trial supported the members’
verdict that the incident occurred in 2004. The military judge then declared a
mistrial only as to sentencing.
Months later, the appellant was resentenced for the two surviving
charges, both involving EH: assault consummated by a battery upon a child
for strangling her in 2006 and engaging in indecent acts with her in 2004.
II. DISCUSSION
We find that the court-martial had personal jurisdiction (AOE 1) and that
the appellant received ineffective assistance of counsel (AOE 2). The former
finding is necessary, as we authorize a rehearing in our decretal paragraph.
We find the remaining AOEs either without merit or rendered moot by the
relief ordered in our decretal paragraph.
A. Court-martial jurisdiction
The appellant asserts that the court-martial lacked personal jurisdiction
over him because he was a validly retired servicemember and the CA did not
have the power to refer charges against him. We disagree. The appellant
never retired because his commanding officer properly placed him on legal
hold, and his discharge certificate was issued in error.
We review questions of jurisdiction de novo. United States v. Ali, 71 M.J.
256, 261 (C.A.A.F. 2012). However, we accept “the military judge’s findings of
historical facts unless they are clearly erroneous or unsupported in the
record.” United States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000) (citation omitted).
Prior to trial, the military judge rejected the appellant’s assertion that
there was a lack of personal jurisdiction to prefer charges and denied the
appellant’s motion to dismiss the charges. The military judge found that the
appellant’s commanding officer put him on legal hold by issuing him a Page
13 counseling entry, and requiring the Navy Personnel Command to cancel
6
United States v. Christopher, No. 201600249
his disability retirement due to the pending court-martial.12 Reviewing the
record of that motion hearing in our consideration of the appellant’s earlier
Petition for a Writ of Mandamus, this court ratified the military judge’s
findings of facts. And we do so again.
After we denied the Petition, at trial the appellant filed another motion to
dismiss the charges, this time based on improper referral. The appellant
alleged that because he was retired, the CA was without authority to refer
charges against him to a court-martial without seeking and receiving
authorization from the Secretary of the Navy.13 The military judge again
denied the motion, finding that the discharge certificate was only issued
because of an administrative failure to input a code that would have flagged
the appellant’s record and prevented the issuance of the DD 214 Form. After
a thorough review, we find, again, that the record supports the military
judge’s findings of fact and they are not clearly erroneous.
Three elements must be satisfied to effect a valid discharge: 1) delivery of
a valid discharge certificate; 2) a final accounting of pay; and 3) completion of
the service’s “clearing” process. United States v. Hart, 66 M.J. 273, 276
(C.A.A.F. 2008) (quoting United States v. King, 27 M.J. 327, 329 (C.M.A.
1989)). In our case, only the first element is in contention. We find the
appellant’s discharge certificate was not valid because the commanding
officer properly exercised his discretion to place the appellant on legal hold
and disciplinary proceedings take precedence over medical retirement
processing.
Ordinarily the delivery of a valid discharge certificate serves to terminate
court-martial jurisdiction. RULE FOR COURTS-MARTIAL (R.C.M.) 202(a),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Discussion.
However, “[c]ourt-martial jurisdiction attaches over a person when action
with a view to trial of that person is taken[,]” R.C.M. 202(c)(1) and courts-
martial may try “those awaiting discharge after expiration of their terms of
enlistment[,]” Art. 2(a)(1), UCMJ.
12Christopher, 2015 CCA LEXIS 151, at *2-3 . In our opinion, we cited the
findings from the military judge’s 30 January 2015 “Ruling on Defense Revised
Motion to Dismiss for Lack of Personal Jurisdiction,” now Appellate Exhibit (AE)
XXVII.
13“No case of a retired member of the regular component of the Navy . . . not on
active duty but entitled to receive pay[] . . . will be referred for trial by court-martial
without the prior authorization of the Secretary of the Navy.” Manual for the Judge
Advocate General, Judge Advocate General Instruction 5800.7D § 0123(a)(1) (15 Mar
2004).
7
United States v. Christopher, No. 201600249
By regulation, commanding officers are permitted to involuntarily
extend—or put on legal hold—members of the Navy facing criminal
proceedings:
12. Involuntary Extension due to Criminal Proceedings.
Members may be extended involuntarily beyond their [End of
Active Obligated Service] as a result of apprehension, arrest,
confinement, investigation, or filing of charges that may result
in a trial by court-martial, and execution of any sentence
thereof . . . .14
It has long been held that investigatory action constitutes sufficient
official action to preserve military jurisdiction. United States v. Lee, 43 M.J.
794, 797 (N-M. Ct. Crim. App. 1995). We have held that jurisdiction is
retained over an appellant when investigatory action commences prior to the
erroneous delivery of a discharge certificate where the commander was
deprived of making “an informed exercise of discretion” regarding the
discharge certificate. United States v. Harmon, 60 M.J. 776, 779 (N-M. Ct.
Crim. App. 2004), aff’d, 63 M.J. 98 (C.A.A.F. 2006). Harmon engaged in an
early-morning robbery on the very day his discharge certificate was to be
delivered to him. An investigation was immediately opened that morning
after his victim positively identified him. However, Harmon’s crime was
unknown to the command and he was given his discharge certificate later
that day. We found that jurisdiction attached because the investigation of
serious violations of the UCMJ was initiated and focused on the appellant
before delivery of his discharge certificate, and the certificate was delivered
without an informed exercise of discretion by the commander. Id.
We are mindful that the authority to retain an individual on active duty
for trial by court-martial is “discretionary and not self-executing.” Smith v.
Vanderbush, 47 M.J. 56, 58 (C.A.A.F. 1997) (citing R.C.M. 202, Discussion).
We are also aware that merely because court-martial jurisdiction has
attached, a command is not prohibited from exercising its discretion to issue
a lawful discharge, effectively terminating jurisdiction. Id. at 60. In
Vanderbush, our superior court held that the Army lost court-martial
jurisdiction over an individual when it lawfully discharged him after court-
martial preferral and arraignment but prior to adjudication of findings. Id. at
59-61. Key to the Vanderbush decision, however, was that the very same
commander who preferred the charges against Vanderbush was notified of
his pending discharge, yet took no action to prevent it.
Here, the facts are similar to those in Harmon, not Vanderbush; the
discharge certificate was delivered to the appellant without an informed
14 Naval Military Personnel Manual, Art. 1160-050 (Ch-19, 12 Apr 2007).
8
United States v. Christopher, No. 201600249
exercise of discretion by the commander. Unlike the commander in
Vanderbush who, after being informed of the pending discharge did nothing,
the appellant’s commander took deliberate action to prevent the appellant’s
discharge. First, he put the appellant on legal hold prior to the disposition of
his PEB case. Second, he issued the appellant a Page 13 counseling entry,
clearly explaining to the appellant that he was on legal hold and could not
transfer or retire. Third, the commander directed the responsible Personnel
Support Detachment (PSD) to flag the appellant’s legal hold status in his
record. Fourth, when the commander found out a message had been issued to
place the appellant in a retired status, he successfully got the message
cancelled. These actions all indicate the clear intent and efforts of the
commander to keep the appellant on legal hold, and that the PSD delivered
the appellant’s discharge certificate to him without the commander’s
informed exercise of discretion. Therefore, the appellant’s reliance on Smith
v. Vanderbush is misplaced.
In United States v. Engle, No. 201501044, 2006 CCA LEXIS 115, at *9,
unpublished op. (N-M. Ct. Crim. App. 31 May 2006), this court was faced
with the same issue we encounter here—whether a DD Form 214 issued in
direct contradiction of a commanding officer’s earlier imposition of legal hold
was valid. Engle’s commanding officer decided to prosecute him and issued a
letter directing that Engle be placed on legal hold. However, that letter was
not entered into the administrative system until after Engle’s expiration of
term of service date, and Engle received a discharge certificate. We held that
Engle’s discharge certificate was not sanctioned by his commanding officer—
in fact, it was directly contrary to his commanding officer’s earlier legal hold
notification—and therefore was issued in error. Absent countervailing case
law, we decline the appellant’s invitation to distinguish his case from Engle.
Lastly, in addition to the commander’s efforts to keep the appellant on
legal hold, Navy regulations also mandate that disciplinary proceedings take
precedence over simultaneous processing for medical retirement. “Processing
for punitive discharge . . . takes precedence over processing for disability. For
cases already being considered at the PEB, once the PEB is formally notified
that punitive action has been initiated, disability case processing is
immediately suspended pending the outcome of the punitive action.”15
Furthermore,
[w]henever a member is being processed through the PEB and,
subsequently the member is processed for . . . disciplinary
proceedings which could result in a punitive discharge, . . .
disability evaluation shall be suspended and monitored by the
15 Secretary of the Navy Instruction 1850.4E at § 1002(b) (30 Apr 2002).
9
United States v. Christopher, No. 201600249
PEB. . . . The PEB case will remain in suspense pending the
outcome of the non-disability proceedings.16
We conclude that personal jurisdiction over the appellant did not
terminate upon delivery of his discharge certificate. He was never validly
retired and the command did not need Secretary of the Navy approval prior
to referring charges against him.
B. Ineffective assistance of counsel
The appellant avers he received ineffective assistance of counsel when his
trial defense team (TDT) erroneously advised him that the five-year statute
of limitations was inapplicable to his case. We agree.
We review claims of ineffective assistance of counsel de novo. United
States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015). The appellant must clear “a
high bar” to prevail on such a claim. Id. at 371. He must show: (1) that his
counsel’s performance was deficient and (2) that, but for his counsel’s
deficient performance, there is a reasonable probability that the result of the
proceeding would have been different. Id. (citing Strickland v. Washington,
466 U.S. 668, 688, 694 (1984)).
1. Counsel’s performance was deficient
The first Strickland prong requires the appellant to show that counsel’s
performance fell below an objective standard of reasonableness, indicating
that counsel was not functioning as counsel within the meaning of the Sixth
Amendment. United States v. Terlep, 57 M.J. 344, 349 (C.A.A.F. 2002). Our
review of counsel’s performance is highly deferential and is buttressed by a
strong presumption that counsel provided adequate representation. United
States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).
Prior to trial, the appellant’s military defense counsel recognized that
there may be a possible statute of limitations issue for several of the charged
offenses. But, after researching the issue, he came to the erroneous
conclusion that the five-year statute of limitations did not apply. The military
defense counsel then incorrectly advised the appellant that he had no statute
of limitations defense to events occurring prior to 24 November 2003. In fact,
two of the charges for which the members later convicted the appellant
occurred between June 2000 and December 2001 and were barred by the
applicable five-year statute of limitations.
The appellant later hired civilian counsel who also identified that there
might be a statute of limitations problem with the charged offenses. However,
16Id. at § 3403(a) (emphasis added). The only exception is if the Director, Navy
Council of Personnel Boards or the Assistant Secretary of the Navy (Manpower and
Reserve Affairs) direct otherwise. Id. at § 3403(c). In this case they did not.
10
United States v. Christopher, No. 201600249
the civilian counsel either relied on the military counsel’s incorrect advice or
came to the same faulty conclusion regarding which statute of limitations
applied to appellant’s charged offenses. Accordingly, the defense filed no
motions to dismiss the two charges from 2000-2001 that were beyond the
five-year statute of limitations.
In spite of the military defense counsel’s identification of the potential
statute of limitations issue upon reviewing the appellant’s case, his
inadequate research and misapplication of the law resulted in the appellant
receiving erroneous advice. The military defense counsel explained his
actions in a post-trial affidavit:
I believed the issue was clearly and definitely addressed in the
analysis section of the [MANUAL FOR COURTS-MARTIAL] (2012
ed.), page A21-57, which indicated that the new statute of
limitations permitted unexpired periods to be extended by the
new statute, but that it does not allow the statute to renew an
expired period. The analysis cited the case of United States v.
Ratliff, 65 M.J. 806 [(N-M. Ct. Crim. App. 2007)] which held
that “extensions of the Article 43, UCMJ, statute of limitations
apply to any child abuse offense for which the original
statutory period had not expired when the extensions were
enacted.” I pulled Ratliff from the [Navy-Marine Corps Court of
Criminal Appeals] website, but I failed to Shepardize17 the
case. Based on this research I concluded that there was no
statute of limitation bar to prosecution of [the appellant] in the
particular case.
As a result of my research on the issue I informed [the
appellant] that the statute of limitations was extended, and
that there was no bar to prosecution of any charges against
him. Accordingly, I filed no motions on his behalf regarding the
statute of limitations, nor did I explain to [the appellant] the
importance of the year in which events occurred.
....
Prior to trial [the appellant] hired . . . civilian defense
counsel . . . [who] immediately identified the statute of
limitations issue and I informed him that I had researched it
17 “Shepardize. n. a method of locating reports of appeals decisions based on prior
precedents from Shepard’s Citations, books which list the volume and page number
of published reports of every appeals court decision which cites a previously decided
case or a statute.” THEFREEDICTIONARY.COM, https://legal-dictionary.
thefreedictionary.com/Shepardize (last visited 26 Dec 2017).
11
United States v. Christopher, No. 201600249
and explained to him the guidance that was in the analysis
section of the [MANUAL FOR COURTS-MARTIAL, (2012 ed.)].18
The TDT relied on our 2007 decision in Ratliff, where we held that the
changes to Article 43, UCMJ, applied retroactively. In that opinion, however,
we noted that our superior court was, at the same time, reviewing an Army
case with the identical issue. Four months after our decision in Ratliff, the
Court of Appeals for the Armed Forces decided that changes to Article 43,
UCMJ, did not apply retroactively. United States v. Lopez de Victoria, 66 M.J.
67, 74 (C.A.A.F. 2008). Our decision in Ratliff was reversed on 2 July 2008.
United States v. Ratliff, 67 M.J. 2 (C.A.A.F. 2009) (summary disposition). The
TDT failed to exercise standard due diligence by ensuring that a six-year-old
case was still good law, despite the dispositive nature of the issue.
At trial, the appellant elected to plead guilty to the lesser included offense
of assault consummated by a battery on EH for grabbing her breast and
rubbing her legs over her clothes. However, during the providence inquiry on
the assault charge, the appellant maintained under oath that he
inappropriately touched EH in July 2003, not June 2004 as the government
had charged. No one at trial—including the counsel, the military judge, and
the accused—understood the true significance of the date dispute. Accepting
that the offense occurred in July 2003 meant the appellant had a valid
statute of limitations defense, as this date was prior to the 24 November 2003
change in the law.19 The appellant’s insistence during the providence inquiry
that the event occurred in July 2003 appears to have surprised the defense
counsel. Regardless, having already erroneously determined that the statute
of limitations offered no protection to their client for charges as early as 2000-
2001, the TDT failed to act on the new information.
The government concedes the first Strickland prong; the appellant’s TDT
failed to function as counsel within the meaning of the Sixth Amendment. We
concur. In cases where counsel conduct a thorough investigation into the law,
we do not second guess their subsequent strategic or tactical decisions.20 But
that was not done here, and “[f]amiliarity with the facts and applicable law
are fundamental responsibilities of defense counsel.” United States v. Davis,
60 M.J. 469, 475, (C.A.A.F. 2005) (citations omitted). The TDT’s failure to
fully research the law and properly advise the appellant on the statute of
limitations’ complete bar to two of the four offenses for which he was
18 Appellant’s Brief of 23 Jan 2017, Appendix 2 at 2-3.
19 See note 8, supra.
20 See Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland, 466 U.S. at 690-91
(“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable . . . .”)
12
United States v. Christopher, No. 201600249
convicted—and the possibility that it could apply to a third offense depending
on whether the offense occurred in 2003 or 2004—fell below the minimum
acceptable level of competence demanded of attorneys and was a
fundamental failure.
2. A reasonable probability the result would have been different
The second Strickland prong requires a showing of prejudice resulting
from counsel’s deficient performance. Strickland, 466 U.S. at 691. The
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.” Id. at 694. See also United States v. Quick, 59
M.J. 383, 386-87 (C.A.A.F. 2004) ([T]he appropriate test for prejudice is
“whether there is a reasonable probability that, but for counsel’s error, there
would have been a different result.”) (citation omitted)). Such prejudice must
result in the denial “of a fair trial,” resulting in “a trial whose result is
unreliable.” United States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001)
(citation and internal quotation marks omitted).
We are confident that awareness of the correct statute of limitations
would have so altered the progress of this trial and affected the appellant’s
decisions that there is a reasonable probability there would have been a
different result.
First, the TDT’s trial strategy, decisions, and tactics were fundamentally
flawed from the beginning because the TDT never filed a motion prior to trial
to dismiss any charges that were outside of the statute of limitations. Clearly,
the two assault charges dismissed posttrial would have been dismissed
pretrial, prior to the members ever hearing the highly inflammatory evidence
on the later dismissed offenses. Additionally, a pretrial motion may also have
successfully dismissed the indecent acts charge against EH, given the
extensive delay in reporting of the incident and the timeline differences
between her and the appellant’s accounts.
Second, the TDT would not have advised their client to plead guilty to the
lesser included offense of assault on EH.21 This error infected the entire
21 In turn, the military judge would never have notified the members that the
appellant pled guilty as charged, to conduct in June 2004. Even though a plea of
guilty is the strongest form of proof under the law, the government argues that the
appellant was not prejudiced because, ultimately, the military judge told the
members to disregard the appellant’s guilty plea. We do presume that, absent
evidence to the contrary, the members follow the instructions of the military judge.
United States v. Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000). But neither the military
judge, the trial counsel, nor the TDT ever clarified the dispute between the 2003-
2004 dates or explained the importance of those dates to the members.
13
United States v. Christopher, No. 201600249
defense theme and theory of the case. Shortly after the military judge
informed the members of the appellant’s plea, the TDT conceded guilt in their
opening statement.
What really happened that night, what the accused has already
pled guilty to, . . . is he did grab her breast, he was wrong, it’s a
crime. He deserves to be punished for what he did. He pled
guilty to what he did. He grabbed her breast. It wasn’t an
inadvertent touch . . . . It was wrong, he shouldn’t have done it.
He felt bad, he never did it again. That is what the evidence
will show you happened.22
The TDT’s closing argument—made after the members were told to
disregard the appellant’s withdrawn plea—was even more ruinous.
Let’s cut to the chase. At the end of the day or sometime on
Monday morning, you’re going to come back with a finding of
guilty. [The appellant] grabbed his stepdaughter’s breasts. The
testimony is clear, it happened. . . . It was wrong, he should not
have done it and he will be punished, and you will punish him,
that much is clear.23
Third, the appellant was divested of the opportunity to make an informed
choice as to whether to testify and claim the events occurred outside of the
statute of limitations. We struggle to think of a more important trial decision
an accused may make in a criminal trial than the decision of whether to take
the stand and testify on his own behalf.24 The most damning evidence against
the appellant was the pretext phone call wherein he admitted to EH that he
had touched her inappropriately, and then apologized. Had the appellant
been properly advised on the statute of limitations, he could have testified,
acknowledged his admissions on the phone call, but explained that any
inappropriate touching had occurred in July 2003, vice June 2004 as charged.
The military judge would have given an instruction to the members
regarding the effective date of the change in the statute of limitations. Then
the TDT could have argued to the members that even if the appellant did
22 Record at 447 (emphasis added).
23 Id. at 1325 (emphasis added).
24 The appellant’s right to testify is a fundamental right, see Faretta v. California,
422 U.S. 806, 819 n. 15 (1975), that only he has the ultimate authority to assert or
waive. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (“It is . . . recognized that the
accused has the ultimate authority to make certain fundamental decisions regarding
the case, as to whether to plead guilty, waive a jury, [or] testify in his or her own
behalf . . . .) (citations omitted)).
14
United States v. Christopher, No. 201600249
inappropriately touch EH, they must find him not guilty, as a matter of law,
as the offense was committed outside the statute of limitations.
Fourth, the cross-examination of EH would have been dramatically
different. The TDT would have been laser-focused on the nuances between
the July 2003 and June 2004 dates, vice merely highlighting EH’s motives to
lie and overall untruthfulness. EH testified twice that the indecent acts
occurred when she was “12 or 13,”25 meaning either in 2003 or 2004. The
significance of this uncertainty was lost on all trial participants.26
Fifth, the appellant was denied the opportunity to present additional
evidence regarding the date dispute. The TDT could have presented
documentary evidence—such as deployment, housing, or school records—to
corroborate the appellant’s assertion that the indecent acts occurred in 2003.
They could also have called witnesses to testify that events corroborating the
incident occurred in 2003 vice 2004.27 In other words, the members may very
well have been without vital information that could have resulted in an
acquittal for the appellant on the charge for which he was convicted of—
indecent acts on EH.
In Davis, 60 M.J. 469, the defense counsel formulated a sentencing
strategy based upon faulty research that early retirement was available to
his client. Our superior court found that the counsel’s failure to determine
the correct state of the law was unreasonable. They set aside the sentence,
concluding there was a reasonable probability there would have been a
different result. The appellant’s situation is much graver—his TDT’s faulty
legal advice severely limited his ability to formulate an effective trial strategy
to contest the charges on the merits. We conclude that there is a reasonable
probability there would have been a different result on the merits in the
appellant’s case.
Even if we could not find a reasonable probability that the results of trial
would be different, the repeated failure to identify the statute of limitations
issue through multiple phases of investigation and trial deprives us of
confidence the trial was fair and reliable. We cannot have confidence in the
outcome of the trial when all of the attorneys involved missed the
applicability of such a seminal issue: the officer who preferred the charges;
25 Record at 791, 797.
26 The importance of the timeline was illustrated when—in the middle of their
deliberations—the members asked the military judge if they could have the trial
counsel’s timeline he had used during his closing argument. AE LXXXIX.
27 We reject the government’s argument that the appellant must show, via
affidavit, exactly what evidence he would have presented to rebut EH’s 2004 date.
Appellee’s Brief of 14 Aug 2017 at 31-32.
15
United States v. Christopher, No. 201600249
the officer who swore the charges; the officer who conducted the Article 32,
UCMJ, proceeding; the SJA; both trial counsel; the military defense counsel;
the civilian defense counsel; and two experienced military judges.28
The legal system failed the appellant. It is our judgment, based on the
entire record, that the findings and the sentence in this court-martial should
not be approved. Arts. 59(a) and 66(c), UCMJ.
III. CONCLUSION
The findings and sentence are set aside. A rehearing is authorized.
Chief Judge GLASER-ALLEN, Senior Judge MARKS, Judge SAYEGH,
and Judge WOODARD concur.
For the Court
R.H. TROIDL
Clerk of Court
28In particular, the military judge at trial had the affirmative duty to inform the
appellant of the applicability of the statute of limitations prior to accepting his guilty
plea. United States v. Thompson, 59 M.J. 432, 439 (C.A.A.F. 2004) (“The military
judge has an affirmative obligation to advise an accused of the right to assert the
statute of limitations, and must determine that any waiver of the statute of
limitations bar is both knowing and voluntary.”) (citing R.C.M. 907(b)(2)(B); United
States v. Moore, 32 M.J. 170, 173 (C.M.A. 1991); United States v. Salter, 20 M.J. 116,
117 (C.M.A. 1985)).
16