U N I T E D S T A T E S ARMY C O U R T OF CRIMINAL A P P E A L S
Before
CAMPANELLA,
H E R R I N G , and P E N L A N D
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant
U n i t e d S t a t e s Army, A p p e l l a n t
ARMY
Headquarters, United States Army Maneuver Center of E x c e l l e n c e (trial)
Headquarters, United States Army Military D i s t r i c t of Washington (DuBay)
Ch arle s A. Kuhfahl J r . , Military Judge (trial)
S . Charles N e i l l , Military Judge (DuBay)
C o l o n e l Charles C . P o c h e , Staff Judge Advocate (trial)
C o l o n e l John P . C a r r e l l , Staff Judge Advocate (DuBay)
For Appellant:
Captain Amanda Renee M c N e i l W i l l i a m s , JA; P h i l i p D . Cave,
E s q u i r e ; J. Thomas Province, Esquire (on b r i e f) ; Captain J o s h u a B . F i x , J A; Philip
D . Cave, E s q u i r e ; J . Thomas Province, Esquire (on reply b r i e f) .
For Appellee:
C o l o n e l Mark H . Sydenham, JA; Lieutenant C o l o n e l A . G . C o u r i e , I I I ,
JA; Major Cormac M . Smith, JA; Captain Linda Chavez, JA (on b r i e f) .
2 May 2 0 1 7
S U M M A R Y D I S P O S I T I O N ON F U R T H E R R E V I E W
HERRING, J u d g e :
A general court-martial c o m p o s e d of a military j u d g e sitting alone c o n v i c t e d
appellant, contrary to h i s p l e a s , of four s p e c i fi c a t i o n s of indecent acts with a c h ild
and communicating a threat in vio l a t i on of Article 1 3 4 o f the Uniform C o d e of
Military J u s t i c e ,
10 U.S.C.
§ 9 3 4 ( 2 0 0 6 ) [hereinafter U C M J ] .
The military j u d g e
se n te n c e d appellant to a b a d - c o n d u c t discharge, confinement for three years, and
redu ctio n to the grade of E - 1 .
The c o n v e n i n g authority d i s m i s s e d Sp e c if ica t io n 8 of
Charge III b e c a u s e it was barred by the statute of limitation and approved only so
much o f the sentence as p r o v i d e d for a bad-conduct discharge, confinement for
thirty-six months, and reduction to the grade of E - 2 .
JALS-DA
-
On 23 N o v e m b e r 2 0 1 6 this court returned a p p e l l a n t ' s record of trial to The
United States v. DuBay,
Judge A d v o c a t e General for a hearing pursuant to
U.S.C.M.A.
147, 37 C.M.R. 4 1 1
(1967).
United States v.
(Army C t . C r i m . App. 23 N o v . 2 0 1 6 ) ( o r d e r ) .
hearing c o n c l u d e d .
On 2 February 2 0 1 7 , the DuBay
The military j u d g e made findings of fact and c o n c l u s i o n s of law
with r e s p e c t to whether a p p e l l a n t ' s defense c o u n s e l were ineffective.
LXXXIII).
17
, ARMY
(App. Ex.
We hereby adopt his findings of fact and c o n c l u s i o n s of law.
that defense c o u n s e l were deficient in failing t o :
We agree
1 ) "present evidence about [ T B ' s ]
m o t i v e s to engineer this p r o s e c u t i o n and her repeated statements that she would
makes sure [appellant] was p u n i s h e d ; " 2) "conduct a full investigation regarding
[TB] and her motives to fabricate;" and 3 ) "prepare [appellant] to testify."
Appellant was found not guilty of nineteen s p e c i f i c a t i o n s .
which he was found guilty all i n v o l v e d T B ' s c h i l d r e n .
The five specifications of
We agree there is a
reasonable probability of a more favorable result had the d e f i c i e n c i e s not o c c u r r e d .
CONCLUSION
F o r the r e a s o n s stated p r e v i o u s l y , the findings of guilty and the sentence are
set a s i d e .
authority.
A rehearing may be ordered by the same or a different c o n v e n i n g
All right, p r i v i l e g e s , and property, of which appellant has b e e n deprived
by virtue of the findings and sentence set aside by this d e c i s i o n , are ordered
restored.
See U C M J arts.
58a(b), 58b(c), 75(a).
S e n i o r Judge C A M P A N E L L A and Judge PENLAND c o n c u r .
2