United States v. Adam

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39174 ________________________ UNITED STATES Appellee v. Anto A. ADAM First Lieutenant (O-2), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 7 February 2018 ________________________ Military Judge: Marvin W. Tubbs II.

Approved sentence: Dismissal and confinement for 40 days. Sentence adjudged 18 July 2016 by GCM convened at Tinker Air Force Base, Oklahoma.

For Appellant: Ernesto Gapasin, Esquire.

For Appellee: Major Rebecca A. Magnone, USAF; Major Mary Ellen Payne, USAF; Major Meredith L. Steer, USAF.

Before MAYBERRY, HARDING, and SPERANZA, Appellate Military Judges.

Judge SPERANZA delivered the opinion of the court, in which Chief Judge MAYBERRY and Senior Judge HARDING joined. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________ SPERANZA, Judge: A military judge sitting as a general court-martial found Appellant guilty, consistent with his pleas pursuant to a pretrial agreement, of providing three false official statements to a military investigator and stealing money from United States v. Adam, No. ACM 39174

the Army and Air Force Exchange Service (AAFES) on divers occasions, in violation of Articles 107 and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 921. The military judge sentenced Appellant to a dismissal and 40 days of confinement. Consistent with the terms of the pretrial agree- ment, the convening authority approved the adjudged sentence.

On appeal, Appellant claims that (A) his sentence is inappropriately se- vere and (B) he was denied effective assistance of counsel. We disagree with Appellant’s assertions, find no prejudicial error, and affirm.

I. BACKGROUND Appellant’s robust history of returning items to the Tinker Air Force Base AAFES Base Exchange without a receipt landed him atop the store’s suspect- ed fraud list—and for good reason. Appellant would place 50–75 percent “clearance” stickers on items he believed should be on sale, purchase them at the reduced price, and later return the items without a receipt. The store re- funded Appellant the full price of the items on gift cards.

Appellant’s scheme finally came to an end when he was video-recorded placing items on “clearance.” After being stopped by the store’s loss preven- tion manager, Appellant was questioned by a military investigator and promptly lied about his misconduct.

II. DISCUSSION A. Sentence Appropriateness The military judge merged all three specifications of Appellant’s false offi- cial statement charge for the purposes of sentencing. Additionally, the mili- tary judge found that each occasion alleged in the larceny charge did not in- dividually involve theft of money valued at over $500, even though Appellant stole well over $1,000 in total. Therefore, the military judge determined Ap- pellant did not face an enhanced sentence, as is required when an accused commits larceny involving nonmilitary property valued at over $500. Conse- quently, Appellant faced a maximum punishment that included a dismissal and confinement for five and a half years.

In exchange for Appellant’s offer to, among other things, plead guilty, the convening authority agreed not to refer additional charges against Appellant and not to approve more than 60 days of confinement. The pretrial agreement placed no other limitations on Appellant’s sentence.

Upon Appellant’s request, the convening authority waived automatic for- feitures for the benefit of Appellant’s wife and son while Appellant served his days of confinement.

United States v. Adam, No. ACM 39174

Appellant now contends that “[d]espite the fact that [his] sentence is the result of a pretrial agreement, the adjudged sentence of a dismissal in con- junction with the confinement for forty days is inappropriate for the charged offenses and for the nature of the offenses and the character of the offender.”

In support of this claim, Appellant cites, inter alia, the resources his guilty plea saved the Government; his “bright career and accomplishments;” 1 the federal convictions he incurred; his crimes did not involve victims, as he “did not commit more egregious offenses such as sexual assault, or assault and battery against another human being;” his acceptance of responsibility; his restitution payment of over $1,500 to AAFES; and, the burden his sentence will have on his future. Accordingly, Appellant asks us to set aside his dis- missal.

We review issues of sentence appropriateness de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)).

We may affirm only as much of the sentence as we find correct in law and fact and determine should be approved on the basis of the entire record. Arti- cle 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular appellant, the nature and seriousness of the of- fense[s], the appellant’s record of service, and all matters contained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015) (quoting United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim.

App. 2009)). Although we have great discretion to determine whether a sen- tence is appropriate, we have no power to grant mercy. United States v. Ne- rad, 69 M.J. 138, 146 (C.A.A.F. 2010).

Indeed, Appellant did not sexually assault or otherwise injure another human being; however, he—an officer in the United States Air Force— devised and executed a brazen scheme to steal money from his installation’s exchange and then lied about it. His punishment is commensurate with his offenses. Having given individualized consideration to the nature and seri- ousness of these crimes, Appellant’s record of service, all other matters con- tained in the record of trial, and, importantly, Appellant, we conclude the sentence is not inappropriately severe based on the facts and circumstances of this particular case.

1 Appellant’s brief cites to the extenuation and mitigation evidence offered by Appel- lant’s trial defense counsel at Appellant’s court-martial, to include ten character let- ters.

United States v. Adam, No. ACM 39174

B. Effectiveness of Counsel Appellant was represented by an experienced trial defense counsel. Early in his representation of Appellant, trial defense counsel advised Appellant about his right to call witnesses, both civilian and military, at his court- martial, and instructed Appellant to identify such potential witnesses. Lead- ing to trial, trial defense counsel and defense paralegals reiterated this ad- vice to Appellant, both orally and in writing. The advice provided to Appel- lant included his right to “call witnesses for [him] or use letters and charac- ter-reference type written statements, or both” at any sentencing proceed- ings. Appellant was again specifically instructed to identify “any and all po- tential character witnesses who can help [him].”

According to Appellant, his trial defense counsel “did mention early in the case to start thinking about character witnesses for trial” and Appellant acknowledged receiving “paperwork from [trial defense counsel] and his para- legal that [he] had the right to call witnesses to testify on [his] behalf.” Based on this advice, Appellant claims he had “several military witnesses in mind from the beginning of the process who were willing to testify on [his] behalf as to [his] good military character, duty performance and rehabilitative po- tential.” Appellant did not have any questions about this advice, but main- tains he never received a deadline to provide the names of these witnesses to trial defense counsel, even though he did obtain character letters from some of these witnesses.

Shortly after charges were preferred against Appellant, his trial defense counsel submitted a resignation in lieu of court-martial (RILO) request on Appellant’s behalf. While Appellant’s RILO request processed, trial prepara- tions continued. Approximately one month before the scheduled trial date, trial defense counsel was required to submit a witness list on that day. Trial defense counsel informed Appellant that he intended to place Appellant’s wife on the witness list and told Appellant to “let me know if you have any ques- tions.” Appellant did not further identify any other witnesses for trial defense counsel.

Despite his negative response, Appellant was instructed once again a few weeks later by a defense paralegal to “please let us know about any witnesses either live testimony or character letters.” Appellant was also provided a “tri- al decisions memorandum.” This memorandum directed Appellant to review the memorandum’s content in its entirety—to include all attachments—and to “not initial or sign, indicating your understanding and choices, until [Ap- pellant and trial defense counsel] are involved in face-to-face final trial prepa- ration together.” (Emphasis in original.) The memoranduam further advised Appellant to “only sign and initial if and when [he] fully underst[ood] [his] rights, [his] decisions and this information.” (Emphasis in original.)

United States v. Adam, No. ACM 39174

Appellant’s request to resign was denied and Appellant’s case proceeded to trial. In preparation, trial defense counsel interviewed members of Appel- lant’s unit, including individuals who wrote character letters for Appellant.

Trial defense counsel determined that calling these military members as wit- nesses was ill-advised because he “learned that [Appellant] had given them the impression that his misconduct was more of a one-time issue rather than a series of continuing acts” and that “[m]any of them believed that the situa- tion was a mistake and were not aware that [Appellant] had lied to security forces personnel.”

About a week before trial, Appellant negotiated the pretrial agreement with the convening authority. In his offer for pretrial agreement, Appellant certified that he was “satisfied with [his defense counsel], who ha[d] advised [him] with respect to th[e] offer, and consider[ed] [defense counsel] competent to represent [him] in th[e] court-martial.”

The day before trial, trial defense counsel discussed the “trial decisions memorandum” with Appellant. The memorandum included five attachments, including one entitled “Character Evidence/Defense Case.” Appellant certified his understanding of the memorandum’s advice and content by initialing and signing the document. On the first page of the memorandum, trial defense counsel advised Appellant, in pertinent part, of the following: I am relying on you to tell me if you have any questions or con- cerns about our trial preparation, trial strategy or trial deci- sions, and if there is something you don’t understand about my advice or explanations. … Please review these memos, think about these choices, and ask me any questions you have. … In addition, please only sign and initial if and when you fully understand your rights, your decisions and this information.

In general, Appellant certified that he was “truly satisfied” with his trial defense counsel and did not have any questions or concerns about trial de- fense counsel’s advice, preparation, the case, or case strategy. Specifically, Appellant certified his understanding of “Character Evidence” by initialing the following: I understand we can present evidence about my character dur- ing the findings and/or sentencing portion of my trial. This character evidence can take the form of live witnesses, perfor-

United States v. Adam, No. ACM 39174

mance reports, awards and decorations, affidavits or, during sentencing, letters written by those who know me best.

I also understand that if we put on evidence of my good charac- ter in any phase of trial the government can rebut that evi- dence by providing what they believe to be evidence of my bad character—which might not otherwise have been admissible against me at trial. This includes any past uncharged miscon- duct or violations of rules. This is called “opening the door” to bad character evidence.

My attorney and I have discussed possible sentencing, includ- ing unsworn statements, witnesses and evidence (OPRs, award & decs, certificates, witnesses, letters, coins, “attaboys,” etc.) (Emphasis added.)

Finally, Appellant certified his “Decisions about Defense Case” by initial- ing the following: I understand that, except for the decisions made by me in this memo, case strategy decisions are left to my attorney. That be- ing said, my attorney has asked me for my inputs regarding a possible defense case and has informed me that I need to let him know if I have any questions or concerns before we enter trial. We have discussed my thoughts and, going into trial, I understand, and agree with, my attorney’s preparation and strategy.

At trial and in response to the military judge’s questions, Appellant con- firmed that he fully consulted with trial defense counsel; he received the full benefit of his counsel’s advice; he was satisfied his defense counsel’s advice was in his best interest; and he was satisfied with his trial defense counsel.

Before entering the sentencing phase of the trial, the military judge ad- vised Appellant of his right to present matters in extenuation and mitigation for the military judge’s consideration, to include “testimony of witnesses.”

Appellant confirmed that he understood this right. In addition to other docu- mentary evidence and an unsworn statement, Appellant offered ten character letters as evidence at sentencing.

Now on appeal, Appellant claims that his trial defense counsel “was inef- fective by failing to properly prepare for presentencing because trial defense counsel did not call military witnesses to testify and did not give Appellant sufficient notice of when requests for production of character witnesses were to be served on the Government.” Appellant argues that “[o]ne glaring issue is the fact that despite the letters of support Appellant received, no one was

United States v. Adam, No. ACM 39174

produced to testify either in court or even via telephone.” Appellant contends that “[t]his lack of proper mitigation evidence at trial negatively affected his chances of remaining in the service.” 2 While acknowledging he “was aware that witnesses could testify on his behalf because [his trial defense counsel] and his paralegal advised him of this,” Appellant nonetheless complains that “this advice came early in the representation” and “in his mind, [he] did not believe [they] ever had a scheduled trial date while [his] RILO was pro- cessing.” Therefore, Appellant was “surprised” when he had to produce a “witness list” and did not have enough time to identify potential witnesses for his trial defense as requested. According to Appellant, his trial defense coun- sel failed to properly counsel him “as to how his RILO application would or would not affect the court-martial” and failed to “properly advise[ ] that he would still have to prepare for trial by obtaining all of his witnesses.” Appel- lant alleges “[he] was essentially left in the dark.”

In response to Appellant’s claims, we ordered and received a declaration from Appellant’s trial defense counsel. Trial defense counsel’s declaration ad- dressed the specific allegations raised by Appellant and included the “trial decision memorandum” initialed and signed by Appellant.

The Sixth Amendment guarantees Appellant the right to effective assis- tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In assessing the effectiveness of counsel we apply the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the pre- sumption of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984). See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000)).

We review allegations of ineffective assistance of counsel de novo and uti- lize the following three-part test to determine whether the presumption of competence has been overcome: 1. Are appellant's allegations true; if so, “is there a reasonable explana- tion 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 law- yers”?

2 We note the irony in Appellant partially relying on the extenuation and mitigation evidence produced by trial defense counsel to demand sentence relief and then subse- quently complaining that trial defense counsel’s sentencing preparation and presen- tencing case was so deficient as to constitute ineffective assistance of counsel.

United States v. Adam, No. ACM 39174

3. If defense counsel was ineffective, is there “a reasonable probability that, absent the errors,” there would have been a different result?

United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (quoting United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).

The record in Appellant’s case, to include the declaration of his trial de- fense counsel and memoranda signed by Appellant, refutes Appellant’s inef- fective assistance of counsel allegations. 3 Trial defense counsel’s explanations and actions in this case were eminently reasonable, and his level of advocacy was well within the performance ordinarily expected of fallible lawyers. Ap- pellant was specifically advised early and often about his right to call wit- nesses on his behalf. Appellant also had plenty of opportunities to raise any concerns throughout the trial process. Instead, he repeatedly confirmed that he understood his rights, to include calling character witnesses at sentencing; he was satisfied with his defense counsel’s preparation and advice; and he was satisfied with his trial defense counsel. Any concerns Appellant harbored with respect to his counsel’s preparation, his counsel’s advice, his ability to present witness testimony, or the impact of his RILO application on his trial remained “in his mind” until after trial.

Even if trial defense counsel’s representation was ineffective as alleged by Appellant, we find no reasonable probability that testimony from unnamed witnesses about Appellant’s “good military character, duty performance or rehabilitative potential” would have produced a different, more favorable re- sult for Appellant. To the contrary and as indicated by Appellant’s trial de- fense counsel, a more reasonable probability existed that cross-examination of these potential witness would have negatively impacted Appellant’s sen- tence.

Accordingly, we find Appellant’s trial defense counsel competently repre- sented Appellant. Appellant’s counsel was presumed to be competent and Appellant failed to overcome that presumption.

III. CONCLUSION The findings of guilt and the sentence are correct in law and fact and no error materially prejudicial to the substantial rights of Appellant occurred.

3Having applied the principles announced in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), and considering the entire record of Appellant’s trial, a guilty plea during which he expressed his satisfaction with trial defense counsel, we find we can resolve the issues raised by Appellant without additional fact-finding.

United States v. Adam, No. ACM 39174

Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

KATHLEEN M. POTTER Deputy Clerk of the Court