United States v. Akbar

The evidence adduced at trial showed that on the night of

March 22, 2003, as American armed forces were preparing to

launch Operation Iraqi Freedom from their staging area in

Kuwait, Appellant threw grenades into three of the tents of his

fellow servicemembers and opened fire with his M-4 rifle,

killing two military officers and wounding fourteen others. The

ensuing investigation revealed that Appellant previously had

written in his diary of his intent to “kill as many of [his

fellow servicemembers] as possible” as soon as he arrived in

Iraq.

Although Appellant raises a number of issues for review,

the gravamen of his appeal focuses on whether his attorneys

provided ineffective assistance of counsel. The Supreme Court

has set a high bar for an appellant to prevail on such a claim.

Specifically, the seminal case of Strickland v. Washington,

466 U.S. 668 (1984), requires an appellant to show that: (1)

his counsel’s performance fell below an objective standard of

reasonableness; and (2) the counsel’s deficient performance

gives rise to a “reasonable probability” that the result of the

proceeding would have been different without counsel’s

unprofessional errors. Id. at 688, 694. Upon analyzing both

the law and the facts in this case, we conclude that Appellant

has failed to meet either of these requirements established by

the Supreme Court.

In regard to the first prong of Strickland, we first note

that Appellant was represented by two experienced military

attorneys who devoted more than two years to preparing and

presenting the defense in this case. With the benefit of

appellate hindsight, we could dissect every move of these trial

defense counsel and then impose our own views on how they could

have handled certain matters differently and, perhaps, better.

However, that is not the standard of review we are obligated to

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apply. Rather, based on long-standing precedent from the

Supreme Court, we are required to be “highly deferential” in our

review of counsel’s performance, and we must presume that

counsel “rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.”

Id. at 689, 690. We also are constrained by the principle that

strategic choices made by trial defense counsel are “virtually

unchallengeable” after thorough investigation of the law and the

facts relevant to the plausible options. Id. at 690-91.

Concerning this last point, we are particularly mindful

that many of the steps that were taken -- or not taken -- by

trial defense counsel in the instant case, and that are now

under scrutiny in this appeal, were the result of trial defense

counsels’ strategic decision to conduct the case in a manner

that avoided introduction of additional damaging information

about Appellant. Specifically, trial defense counsel

successfully sought to shield from the court-martial panel

details about Appellant’s alleged stabbing of a military police

officer (MP), just days before Appellant’s court-martial began.

We conclude that trial defense counsel reasonably believed that

the admission of such evidence would have seriously undermined

their ability to convince the panel members during sentencing

that Appellant had rehabilitative potential, and thus should not

be sentenced to death. For this and other reasons discussed in

United States v. Akbar, No. 13-7001/AR

5

greater detail below, we conclude that the performance of trial

defense counsel was not “measurably below the performance

standards ordinarily expected of fallible lawyers.” United

States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005).

In regard to the second prong of the ineffective assistance

of counsel test, several reasons convince us that there was no

reasonable probability that the panel members would have

acquitted Appellant or sentenced Appellant to something less

than the death penalty had trial defense counsel presented their

case in the manner now urged on appeal. First, Appellant’s

murder of Army Captain (CPT) Christopher Seifert and Air Force

Major (MAJ) Gregory L. Stone, and his attempted murder of other

officers of the United States armed forces, was premeditated.

Second, prior to committing this offense, Appellant had written

incriminating passages in his diary, such as: “I may have to

make a choice very soon about who to kill. . . . I will have to

decide if I should kill my Muslim brothers fighting for Saddam

Hussein or my battle buddies”; and, “I am not going to do

anything about it as long as I stay here. But as soon as I am

in Iraq I am going to kill as many of [my fellow servicemembers]

as possible.” Third, Appellant committed this attack in Kuwait

at the start of Operation Iraqi Freedom in an effort to hobble

the American military’s ability to prevail in battle. Fourth,

Appellant was thirty-one years old at the time he committed the

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offenses, had served in the United States Army for just under

five years, and had attained the rank of sergeant. Fifth, both

the sanity board and many of Appellant’s own experts concluded

that Appellant was not suffering from a severe mental disease or

defect at the time he committed the offense or at the time of

testing. Sixth, Appellant was not intellectually deficient, as

demonstrated by his engineering degree from a well-known

university and his “extremely high, superior IQ.” And finally,

even assuming that all of the information now provided by

appellate defense counsel is true, we conclude that Appellant’s

additional mitigation evidence is not sufficiently compelling to

establish a substantial likelihood that the court-martial panel

would have imposed a different sentence. See Cullen v.

Pinholster, 131 S. Ct. 1388, 1410 (2011); see also United States

v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005) (noting that

“overwhelming evidence of guilt may present an insurmountable

obstacle to an appellant claiming prejudice from ineffective

assistance of counsel”). Based on these factors and others

discussed below, we conclude that if there ever was a case where

a military court-martial panel would impose the death penalty,

this was it.

Since Appellant can establish neither deficient performance

nor prejudice, we conclude that Appellant cannot prevail on his

claims of ineffective assistance of counsel. We further

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conclude that Appellant’s other assignments of error are

similarly without merit. Accordingly, we affirm the lower

court’s decision.

I. Facts

A. The Offenses

In March 2003, soldiers from the 1st Brigade, 101st

Airborne Division, were stationed at Camp Pennsylvania, Kuwait,

preparing to begin Operation Iraqi Freedom. On the night of

March 22, Appellant was guarding grenades with another soldier.

When Appellant was left alone, he stole seven grenades: four M

67 fragmentation grenades and three M-14 incendiary grenades.

The brigade was scheduled to cross the border from Kuwait into

Iraq in the next few days.

Before movement and while most of the brigade slept,

Appellant took a fellow soldier’s body armor and then walked to

the tents of the brigade officers. He shut off the generator

for the outdoor lighting to the tent area, plunging it into

darkness. Appellant then threw one incendiary and one

fragmentation grenade into Tent 1, where the brigade commander

(Colonel (COL) Frederick Hodges), brigade executive officer (MAJ

Ken Romaine), and brigade sergeant major (Command Sergeant Major

(CSM) Bart Womack) were sleeping. When MAJ Romaine emerged from

the tent, Appellant shot him, severely injuring, but not

killing, him.

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Appellant then moved to Tent 2 where several officers and

two interpreters were sleeping and threw two fragmentation

grenades into the tent. Many of the officers were injured from

the shrapnel, and MAJ Gregory Stone was killed from eighty-three

shrapnel wounds.

Appellant finally moved to Tent 3, which housed sixteen

officers, and threw a fragmentation grenade into the tent, which

injured multiple officers. When CPT Christopher Seifert exited

the tent, Appellant shot him in the back at close range, causing

CPT Seifert to bleed to death.

In the midst of the military’s response to the attacks, the

brigade S-2, MAJ Kyle Warren, learned from COL Hodges that

Appellant may have attacked Camp Pennsylvania. MAJ Warren found

Appellant and tackled him to the ground. When MAJ Warren asked

Appellant if he had attacked the tents, Appellant responded,

“Yes.”

At the time of apprehension, Appellant was in possession of

one fragmentation grenade and two incendiary grenades along with

three empty incendiary grenade canisters. His weapon, an M-4

rifle, had been recently fired. Ballistics testing matched the

bullets from Appellant’s firearm with those that had wounded MAJ

Romaine and killed CPT Seifert. Appellant also had M-14 and M

67 grenade residue on his uniform and hands. His fingerprints

were on the switch to shut off the generator.

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B. The Trial Defense Team

Following the March 2003 Camp Pennsylvania attack,

Appellant was initially represented by MAJ Daniel Brookhart, CPT

David Coombs, CPT Jackie Thompson, and Lieutenant Colonel (LTC)

Victor Hansen. Of these counsel, LTC Hansen was the most

experienced because he had served as a trial counsel, senior

trial counsel, and chief of military justice, as well as a

professor of criminal law at what is now known as the Army Judge

Advocate General’s Legal Center and School (LCS). He also had

served as the lead trial counsel for a fact-finding hearing in a

capital case, United States v. Murphy. Given this experience,

LTC Hansen served as lead counsel.

Although LTC Hansen had the most capital experience among

the group, the other counsel were also well-qualified judge

advocates. Because Appellant’s claims of ineffective assistance

of counsel mostly concern MAJ Brookhart and CPT Coombs, we

describe their qualifications in some detail.

MAJ Brookhart had served as a judge advocate for

approximately eleven years before the pretrial hearings began

for Appellant’s court-martial. He had earned a master of laws

in military law from the LCS with a specialty in criminal law.

MAJ Brookhart had tried seventy-five cases as trial counsel or

senior defense counsel, including fifteen contested trials

involving serious offenses. He had dealt with expert witnesses,

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including mental health experts. He had been a government

appellate counsel for a year, during which time he attended the

capital litigation course held by the Naval Justice School. He

took this course so that he could handle the capital case of

United States v. Kreutzer. He also had participated in the

trial counsel assistance program which provided him with

litigation training. Additionally, MAJ Brookhart had served as

branch chief at the government appellate division where he

participated in strategy sessions for the Murphy capital case,

and reviewed and edited the brief in the Kreutzer capital case.

MAJ Brookhart had argued seven cases before this Court and seven

cases at the CCA.

CPT Coombs had served as a judge advocate for approximately

seven years before his appearance as counsel at Appellant’s

pretrial hearing. During this time, CPT Coombs had served for

more than two years as a trial counsel and for nearly four years

as a defense counsel. CPT Coombs had tried seventy-eight cases,

fifteen of which were contested. He had worked with expert

witnesses, including forensic psychiatrists. CPT Coombs also

had attended a week-long death penalty course in September 2003.

In preparation for Appellant’s case, both counsel consulted

capital resources to include motions in other capital cases, law

review articles, and materials from a capital litigation course.

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In addition to these two attorneys, the trial defense team

also included a forensic psychiatrist, Dr. Walker, and a

neuropsychologist, Dr. Clement, who both started working on the

case in May 2003. Dr. Walker was used to assist the defense in

understanding Appellant’s mental status at the time of the crime

and the trial, to help prepare a sentencing case, and to observe

the Rule for Courts-Martial (R.C.M.) 706 board. Dr. Clement

conducted neuropsychological tests on Appellant for the benefit

of other defense experts. A forensic DNA expert joined the

defense team in June 2003 to observe Government testing of key

evidence.

Initially the attorney workload was divided as follows.

MAJ Brookhart focused on findings issues, CPT Coombs took the

lead on motions, CPT Thompson contacted potential witnesses

while deployed in Iraq, and LTC Hansen worked mitigation issues.

The strategy was to use the services of a mitigation specialist,

Ms. Deborah Grey, early in the process in order to uncover and

develop information that could be used to avoid a capital

referral and to submit an offer to plead guilty. LTC Hansen

advised Appellant that an offer to plead guilty would be the

best way to avoid a capital referral. On two occasions,

Appellant agreed to this strategy, but he ultimately changed his

mind.

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In furtherance of the mitigation strategy, Ms. Grey began

her work in August 2003 and was authorized to perform 400 hours

of mitigation work. LTC Hansen and Ms. Grey traveled to

Appellant’s childhood neighborhoods where they interviewed

friends, family members, and associates, including Appellant’s

childhood imam, Appellant’s brother, high school teachers and

administrators, and college professors and administrators. Ms.

Grey provided the defense team with detailed written summaries

of these interviews and also collected school, medical,

employment, military, and other official records.

Appellant’s mother, whom counsel described as having an

emotional and mental influence over Appellant, did not agree

with LTC Hansen’s strategies or the mitigation efforts. In

December 2003, Appellant’s mother sent a letter to MAJ

Brookhart, informing him that she had asked her son to fire LTC

Hansen and CPT Thompson because she did not trust them, in large

part because they were encouraging Appellant to plead guilty.

As a result, at his mother’s behest, Appellant released LTC

Hansen, the defense’s most experienced capital litigator, as

well as CPT Thompson, in January 2004.

To replace the dismissed military counsel, Appellant, with

his mother’s encouragement, retained as lead counsel two

civilian attorneys, Mr. Musa Dan-Fodio and Mr. Wazir Ali

Muhammad Al-Haqq, at different times in the pretrial

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proceedings. Neither attorney had capital litigation experience

nor military justice experience. As the first civilian lead

counsel, Mr. Dan-Fodio changed trial strategy to try to get

Appellant’s case transferred to the United Nations Human Rights

Commission or another international forum or, alternatively, to

focus on self-defense, defense-of-others, duress, and

Appellant’s innocence.

Mr. Dan-Fodio subsequently withdrew from the case and was

replaced by Mr. Al-Haqq in the spring of 2004. This left

Appellant with three counsel -- Mr. Al-Haqq, MAJ Brookhart, and

CPT Coombs. Mr. Al-Haqq became lead counsel and focused on an

insanity defense. For this purpose, in June 2004, the defense

team retained Dr. George Woods Jr., a neuropsychiatrist and

forensic psychiatry expert. By this point, the defense team

also had obtained the assistance of a ballistics and gunshot

powder residue expert, a certified latent print examiner, and a

pathologist to review physical and scientific evidence.

Around the time Appellant retained Mr. Al-Haqq as lead

counsel, Ms. Grey was informed in early May 2004 that her

services as a mitigation specialist were no longer needed

because Appellant’s mother refused to permit Ms. Grey to

interview her or anyone else in her family. At the time of her

withdrawal, Ms. Grey estimated that approximately 200 hours

would be needed to complete the mitigation case.

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In August 2004, Mrs. Scharlette Holdman replaced Ms. Grey

as the defense team’s mitigation specialist, and she was

authorized to conduct seventy-five hours of interviews of

Appellant’s family members. When Mrs. Holdman withdrew for

medical reasons, Ms. Scarlet Nerad replaced her in September

2004. The Government authorized Ms. Nerad to conduct 368 hours

of mitigation investigation and 198 hours of base-level

investigation. Ms. Nerad interviewed Appellant, his father,

mother, sisters, brother, half-brother, grandfather, aunts,

uncles, and cousins. She also collected thousands of pages of

documents, including court records, medical records of Appellant

and his relatives, and education records of Appellant’s

siblings.

When Mr. Al-Haqq stopped receiving payments from Appellant,

he ceased working on the case in August 2004. He informed

counsel he was withdrawing in late February 2005, but military

counsel had anticipated this announcement and had worked to

prepare Appellant’s case for trial accordingly. MAJ Brookhart

and CPT Coombs were now left as Appellant’s trial defense

counsel. By the start of the court-martial, the defense team

already had managed to file nearly sixty motions on multiple

topics, including many of the issues raised in this appeal.

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C. Trial Proceedings

Following numerous continuances, Appellant’s trial was

scheduled to begin on April 6, 2005, 744 days after Appellant’s

attack on Camp Pennsylvania. However, on March 30, 2005,

Appellant allegedly found a pair of scissors in the office of

the staff judge advocate and used them to stab an MP in the

neck. Appellant also allegedly tried to seize the MP’s firearm

before being subdued by another MP.1 Following the incident, the

military judge, upon trial defense counsels’ motions, reopened

the R.C.M. 706 sanity board and preliminarily prevented the

Government from referencing the stabbing incident. The sanity

board deemed Appellant competent to stand trial.

Following the alleged scissors attack, trial defense

counsel did not seek a delay in the start of the trial in a

successful effort to preclude the Government from having the

opportunity to refer additional charges against Appellant.

Thus, trial proceedings began, as scheduled, on April 6, 2005.

Twenty members were detailed to the venire pool. Following two

days of voir dire, a fifteen-member panel consisting of nine

officers and six enlisted soldiers was selected after the

defense successfully challenged one member for cause and the

1 Appellant was not charged in the stabbing incident. Also, as discussed below, Appellant’s counsel successfully prevented the panel from considering this incident during the sentencing phase of Appellant’s trial.

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Government successfully challenged three members for cause and

used one peremptory challenge.

The Government’s case on the merits lasted four days and

involved forty witnesses who mostly testified about the Camp

Pennsylvania attack on March 22, 2003. When witnesses had

information about Appellant, trial defense counsel cross

examined them, eliciting information about Appellant’s unfocused

state in the period leading up to the attack, his daydreaming,

his sleep problems and tendency to fall asleep at inappropriate

times, his long periods of silence, his laughing and smiling

without reason, and his tendencies to pace and talk to himself.

Trial defense counsel also elicited through cross-examination

that Appellant had heard servicemembers joking about and using

derogatory terms for Muslims.

Besides witness testimony, the Government’s case involved

admission of these entries from Appellant’s diary:

I may have not killed any Muslims, but being in the Army is the same thing. I may have to make a choice very soon about who to kill. I will have to decide if I should kill my Muslim brothers, fighting for Saddam Hussein, or my battle buddies.

I’m hoping to get into a position so I don’t have to take any crap from anyone anymore.

For the defense case on the merits, counsels’ strategy was

two-fold: (1) to present evidence establishing diminished

mental capacity so as to raise doubt about Appellant’s ability

United States v. Akbar, No. 13-7001/AR

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to premeditate; and (2) to “frontload” mitigation evidence

during the merits stage of the trial. As part of this strategy,

trial defense counsel elicited testimony from nine defense

witnesses.

Dr. Fred Tuton was a clinical psychologist who had examined

Appellant at the age of fourteen after allegations surfaced

about Appellant’s sister being sexually abused by Appellant’s

stepfather. Dr. Tuton testified that Appellant displayed no

normal emotions during the meeting and reported having sleep

problems and not being able to trust people. Dr. Tuton

diagnosed Appellant with an adjustment disorder with depressed

mood associated with a mixed specific developmental disorder.

Mr. Paul Tupaz, Appellant’s college roommate, testified

about his friendship with Appellant which lasted until 1994.

According to Mr. Tupaz, Appellant had difficulty sticking to his

plans, was not very social and spent time by himself, “paced a

lot,” talked to himself, and had difficulty sleeping.

Members of Appellant’s unit and unit leadership testified

about Appellant’s poor work performance, his isolation from

others, his pacing and talking to himself, his sleeping

difficulties, and his laughing and smiling at inappropriate

times. One servicemember testified about military personnel

using derogatory names regarding Muslims in Appellant’s

presence.

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The testimony of Dr. Woods, Appellant’s expert in forensic

psychiatry, revealed a family history of mental illness,

particularly a maternal uncle with psychiatric problems, a

father with depression, and a half-brother with paranoia. Dr.

Woods explained that Appellant had come from an “extremely

poverty-stricken home” and had an “extraordinarily abusive”

stepfather. Additionally, he noted that Appellant’s mother had

been homeless. Dr. Woods reported that test scores revealed

Appellant to be suffering from depression, paranoia,

impulsivity, sleep problems, and bizarre thinking, which Dr.

Woods believed was corroborated by Appellant’s diary entries and

academic history. Dr. Woods further testified that Appellant

had difficulty picking up social cues, perceiving situations,

and differentiating reality.

Although Dr. Woods could not provide a definitive

diagnosis, he provided three “differential”2 diagnoses:

(1) schizotypal disorder; (2) schizophrenia paranoid type; and

(3) schizoaffective disorder. Dr. Woods believed that

Appellant’s symptoms affected him on March 22, 2003, by causing

him to be overwhelmed emotionally and preventing him from

thinking clearly.

2 According to Dr. Woods, a differential diagnosis is based upon an individual’s symptoms and provides the possible disorders that would be consistent with the symptoms.

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In closing argument, trial defense counsel argued that the

evidence showed that Appellant had a mental illness at the time

the attack occurred, and that the Government had therefore

failed to meet its burden of proving premeditation. Counsel

explained that Appellant’s mental illness caused him to become

emotionally charged, which in turn led Appellant to react out of

confusion and fear. Throughout the closing, counsel argued that

Appellant’s actions did not represent “good planning,” “just

confusion.”

Despite the defense case and counsel’s closing argument,

the panel members returned a guilty verdict on the premeditated

murder and attempted murder charges. The case then moved to the

sentencing phase.

The Government’s presentencing case lasted one-and-a-half

days and included the testimony of twenty-one witnesses. COL

Hodges, the brigade commander, testified about the impact of the

attack on the brigade’s battle readiness. In response to a

question about the psychological impact of Appellant’s attack,

COL Hodges stated that he “hated” that a “fragging had occurred”

in his unit, noting that in reflecting on the “worst days for

the United States Army, at the end of Vietnam, the two things

that [came] to mind [were] heavy drug use and fraggings.”3

3 A fragging is an incident in which an individual “deliberately injure[s] or kill[s] (one’s military leader) by means of a fragmentation grenade.” Merriam-Webster Unabridged Online

United States v. Akbar, No. 13-7001/AR

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Other servicemember victims testified about the impact of

their injuries, the psychological impact of the attack, the

impact on their military careers, their memories of the deceased

victims, and their reactions upon learning that the attacks were

by a fellow servicemember. As to this last point, the

servicemember victims testified about feeling “disbelief,”

“distrust,” “shock[],” “betrayed,” “[e]xtremely frustrated,

angry,” “pissed,” and “confused.”

Colleagues of the victims also testified about feeling

“anger,” “disbelief,” and “betrayal” upon learning another

servicemember was responsible. Finally, the deceased victims’

family members and friends testified about the impact of losing

CPT Seifert and MAJ Stone.

Prior to the start of Appellant’s presentencing case, the

defense admitted a binder containing fifteen exhibits:

(1) Appellant’s entire diary (313 pages); (2) the FBI’s written

synopsis of the diary (nine pages); (3) Ms. Grey’s mitigation

report showing Appellant’s family tree, Appellant’s personal

history, and a summary of Appellant’s diary (thirty-three

pages); (4) government records reflecting Appellant’s family’s

use of food stamps from 1986-1994 (nineteen pages); (5) the

search and seizure authorization for Appellant’s military e-mail

Dictionary, http://unabridged.merriamwebster.com/unabridged/fragging (last visited Aug. 14, 2015).

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account (one page); (6) definitions of relevant Islamic terms

(eight pages); (7) Appellant’s paperwork for his name change

(four pages);4 (8) Ms. Grey’s interview notes from a high school

guidance counselor (one page); (9) Ms. Grey’s interview notes

from a high school teacher (two pages); (10) Ms. Grey’s

interview notes from the high school college advisor and

photographs of the high school (six pages); (11) another

mitigation specialist’s interview notes with the ex-wife of

Appellant’s college roommate (two pages); (12) a memorandum from

a servicemember in Appellant’s platoon (three pages); (13) a

memorandum of the equal opportunity advisor for the brigade

(four pages); (14) Ms. Grey’s interview notes with Appellant’s

childhood imam and three photographs of Appellant’s childhood

mosque (six pages); and (15) the criminal records for

Appellant’s stepfather (four pages).

Before providing each member with a binder, the military

judge instructed the members that once the trial recessed for

the day, they would be provided defense exhibits to read at home

or work. The military judge added that the members were not to

conduct independent research, discuss the exhibits with anyone,

or copy the exhibits.

4 Appellant’s birth name was Mark Fidel Kools. His parents became members of the Nation of Islam, and Appellant’s name was changed to Hasan Karim Akbar when Appellant was eight years old. Appellant enlisted in the Army under his birth name. However,

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The following morning, the defense presented its case in

mitigation. The defense presented testimony from CPT David

Storch (one of Appellant’s former platoon leaders), SFC Daniel

Kumm (the platoon sergeant for 2nd Platoon), and Mr. Dan Duncan

(Appellant’s high school physics teacher). CPT Storch testified

about Appellant’s termination from his platoon and Appellant’s

problems as a noncommissioned officer (NCO), including

difficulties relating well with soldiers, needing detailed

guidance to perform tasks, and performing in an increasingly

unsatisfactory manner over time. SFC Kumm testified about

Appellant being a “below average” NCO, being a soldier he did

not want to take to Iraq, and being assigned the task of

guarding grenades on March 22, 2003, at Camp Pennsylvania in

Kuwait. Mr. Duncan testified about the “very poor, low

socioeconomic, high crime,” and gang-ridden area where

Appellant’s high school was located. He described Appellant as

an “excellent student” who was memorable for trying to learn

material and being in “the top 5 to 10” students whom Mr. Duncan

had ever taught at the high school. Mr. Duncan described

Appellant as living in “a drab apartment building in a rather

depressed area.” After Mr. Duncan’s testimony, the military

judge recessed for the day “because of some witness travel

he petitioned to change his name to Hasan Akbar in June 2001, and the Army finalized the name change in September 2001.

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schedules,” and for a second day he permitted the members to

take the defense-created binders home with them.

On the final morning of the defense’s presentencing case,

the defense offered into evidence and distributed to the members

copies of two statements: one from Ms. Regina Weatherford,

Appellant’s former high school classmate, and one from

Appellant’s brother. Ms. Weatherford’s statement described

Appellant’s academic success in high school and his tendency to

sit by himself during high school. The brother’s statement

described how Appellant helped raise him, how Appellant

financially helped the family, and how Appellant had trouble

falling in love too quickly with women. Defense counsel agreed

with the military judge that they had decided for “sound

tactical reasons” not to call Ms. Weatherford or Appellant’s

parents to testify.

The final piece of Appellant’s sentencing case was his

unsworn statement before the members of the court-martial panel.

Appellant took the stand and explained that he had decided not

to read the six-page statement that he previously had prepared

because he felt that it sounded “like an excuse.” Instead, he

said, “I want to apologize for the attack that occurred. I felt

that my life was in jeopardy, and I had no other options. I

also want to ask you to forgive me.”

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During trial defense counsel’s sentencing argument, counsel

emphasized that the Government’s argument was “based upon

emotion,” and that emotion should not be used when deciding

whether to impose the death penalty. He argued for life without

parole “based upon logic and reason.” Counsel cited Appellant’s

mental illness, noting that the diary provided “a unique look

into [Appellant’s] mind.” Counsel also cited Appellant’s sleep

problems as negatively affecting his ability to think. Counsel

further noted the command’s responsibility, as part of a “band

of brothers,” to ensure poor performers or those with mental

illness did not deploy and did not remain as members of the

Army. Counsel then cited Appellant’s difficult upbringing and

school environment. Counsel ultimately returned to and

emphasized Appellant’s mental illness as the cause of the lethal

events at Camp Pennsylvania.

The military judge provided the panel members with

instructions on the procedures that must be used during

deliberations in capital cases. Specifically, the military

judge instructed the members that in order for them to impose

the death penalty: (1) they had to unanimously find beyond a

reasonable doubt that an aggravating factor existed; (2) they

had to unanimously find that the extenuating and mitigating

factors were “substantially outweighed” by the aggravating

circumstances; and (3) they had to reach the decision to impose

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death unanimously based on each member’s individual decision.

The military judge listed thirty-one mitigating factors but

explained that they were not the exclusive factors that the

members could consider. Trial defense counsel explicitly stated

that he did not object to these instructions.

The members then began their deliberations. Approximately

six hours later, the military judge held an Article 39(a), UCMJ,

10 U.S.C. § 839 (2012), hearing to discuss this note from the

members: “Sir, reconsideration has been proposed.” The

military judge proposed to the parties that he use

reconsideration instruction 2-7-19 from the Military Judges’

Benchbook (Benchbook), and the parties agreed.5 Appellant never

raised an objection to the instruction. Following additional

5 The reconsideration instruction explained the process for the members to revote after reaching a sentence if a member proposed reconsideration, noting that the process was different depending on whether the proposal to reconsider related to increasing or decreasing the sentence. The instruction outlined the following process for determining whether the panel could reconsider and revote the sentence: (1) if the proposal was to increase the sentence, a majority of members had to vote by secret ballot in favor of reconsideration; (2) if the proposal was to decrease the sentence, one-fourth of the members had to vote in favor of reconsideration with a view to decrease the sentence; and (3) if the sentence reached was death, only one member vote was required to reconsider the sentence. If the required votes were not obtained for reconsideration, the instruction informed the members that they were to announce the original sentence without indicating whether it was the original or reconsidered sentence. But, if a sufficient number of votes were obtained for reconsideration, the instruction required the members to adhere to the military judge’s original instructions for proposing and determining an appropriate sentence.

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26

deliberations, the president of the panel announced that the

members had unanimously determined that an aggravating factor

had been proven beyond a reasonable doubt, and that the matters

in mitigation and extenuation were “substantially outweighed” by

the aggravating circumstances. The president then announced

that the members had voted unanimously that Appellant should be

“put to death.”

II. Analysis

Appellant’s counsel has assigned a total of fifty-nine

issues for this Court to consider. Appellant also has

personally presented a number of additional matters for us to

consider pursuant to United States v. Grostefon, 12 M.J. 431

(C.M.A. 1982).6 After careful review, we conclude that a

majority of the assigned issues and all of the personally

asserted issues do not have merit and therefore warrant no

additional discussion. However, we deem it appropriate to

address below twenty-one assigned matters, starting with

Appellant’s ineffective assistance of counsel claims.

A. Ineffective Assistance of Counsel

Appellant challenges the effectiveness of trial defense

counsels’ performance at all stages of the pretrial and trial

6 The assigned issues and personally asserted Grostefon issues, which we permitted Appellant to submit out of time, United States v. Akbar, 73 M.J. 242 (C.A.A.F. 2014) (order), are listed in the Appendix to this decision.

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proceedings.7 We review these ineffective assistance of counsel

claims de novo. See United States v. Datavs, 71 M.J. 420, 424

(C.A.A.F. 2012). To prevail, Appellant “must show that

counsel’s performance was deficient, and that the deficiency

prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521

(2003). An attorney is deficient when his representation falls

“below an objective standard of reasonableness.” Id.

We do not measure deficiency based on the success of a

trial defense counsel’s strategy, but instead examine “whether

counsel made an objectively reasonable choice in strategy” from

the available alternatives. United States v. Dewrell, 55 M.J.

131, 136 (C.A.A.F. 2001) (quoting United States v. Hughes,

48 M.J. 700, 718 (A.F. Ct. Crim. App. 1998)). Similarly, we

must remain mindful that counsel have “wide latitude . . . in

making tactical decisions.” Pinholster, 131 S. Ct. at 1406

(quoting Strickland, 466 U.S. at 689). Thus, our scrutiny of a

trial defense counsel’s performance is “highly deferential,” and

we make “every effort . . . to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of counsel’s

7 Such challenges have become the norm in death penalty appeals in both the civilian and military criminal justice systems. See David D. Velloney, Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases, 170 Mil. L. Rev. 1, 18 & n.81 (2001). The vast majority of ineffective assistance of counsel claims are unsuccessful. See Anne M. Voigts, Note, Narrowing the Eye of the Needle: Procedural Default, Habeas Reform, and Claims of Ineffective Assistance of Counsel, 99 Colum. L. Rev. 1103, 1118 (1999).

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28

challenged conduct, and to evaluate conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689.

An appellant is prejudiced by counsel’s deficient

performance where “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.” Strickland, 466 U.S. at 694. In the capital

sentencing context, we “reweigh the evidence in aggravation

against the totality of available mitigating evidence” to

determine if there is a reasonable probability that the panel

would have returned a different sentence. Wiggins, 539 U.S. at

534.

For ease of analysis, our discussion of Appellant’s

ineffective assistance of counsel claims in the instant case is

divided into four categories: (1) pretrial preparation;

(2) merits phase performance; (3) penalty phase performance; and

(4) cumulative error. As we explain in detail below, we

conclude that none of these claims merits relief.

1. Pretrial Preparation

a. Investigation

Trial defense counsel have “a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 466 U.S. at

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29

691. “[S]trategic choices made [by counsel] after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable . . . .” Id. at 690. In considering

whether an investigation was thorough, “[w]e address not what is

prudent or appropriate, but only what is constitutionally

compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting

United States v. Cronic, 466 U.S. 648, 665 (1984)). The Supreme

Court has “rejected the notion that the same [type and breadth

of] investigation will be required in every case.” Pinholster,

131 S. Ct. at 1406-07 (citing Strickland, 466 U.S. at 691).

i. Pretrial Interviews

A. Testifying Witnesses

Appellant claims that trial defense counsel failed to

adequately interview and prepare two witnesses who testified at

trial -- Mr. Tupaz, Appellant’s college roommate, who testified

during the merits phase, and Mr. Duncan, Appellant’s high school

physics teacher, who testified during presentencing. Neither

argument is persuasive.

The record reflects that trial defense counsel contacted

Mr. Tupaz in the month prior to trial. In a post-trial

affidavit, trial defense counsel reported interviewing Mr. Tupaz

over the telephone and reviewing draft questions for trial

preparation. In his post-trial declaration, Mr. Tupaz did not

“remember talking to any defense attorneys prior to showing up”

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30

for the trial at which time Mr. Tupaz recalled speaking to trial

defense counsel. We conclude that Mr. Tupaz’s inability to

remember talking to trial defense counsel is “too equivocal and

ambiguous to overcome the presumption that [Appellant’s] counsel

were competent.” United States v. Key, 57 M.J. 246, 249

(C.A.A.F. 2002). Even assuming trial defense counsel did not

interview Mr. Tupaz, counsel’s questioning of Mr. Tupaz during

trial demonstrated that counsel was adequately prepared for his

testimony. Therefore, it cannot be said that counsels’

performance was deficient in this regard.

Appellant now claims that Mr. Tupaz should have been asked

to testify about the likelihood that Appellant took

inappropriate comments made by members of the military about

Muslims both very literally and personally. However, this

proffered testimony was cumulative of Dr. Woods’s testimony on

the same topic, and thus it would not have made Mr. Tupaz’s

testimony more compelling in scope or degree.

As for Mr. Duncan, we accept Appellant’s claim that he was

not interviewed by defense counsel prior to trial. However, we

note that trial defense counsel possessed the mitigation

specialist’s report about her own interview of Mr. Duncan, which

included facts and observations proffered by Mr. Duncan in

regard to Appellant’s high school experiences. Further, trial

defense counsel were able to elicit testimony from Mr. Duncan

United States v. Akbar, No. 13-7001/AR

31

that Appellant’s high school was in a poor and dangerous

neighborhood, Appellant was “an excellent student,” and

Appellant lived in a “depressed area.” Mr. Duncan’s post-trial

declaration contains no additional substantive information that

he would have provided had counsel interviewed him prior to his

testimony. Therefore, Appellant has not established a

reasonable probability of a different sentence based on

counsels’ failure to interview Mr. Duncan. We therefore reject

Appellant’s ineffective assistance of counsel claims with

respect to Mr. Tupaz’s and Mr. Duncan’s testimony.

B. Nontestifying Lay Witnesses

In the course of his ineffective assistance of counsel

claims, Appellant complains that counsel failed to personally

contact or to adequately interview his father, his brother, his

sisters, his cousins, a high school friend, and a former

landlady. In analyzing this issue, we first note that counsel

must “investigate adequately the possibility of evidence that

would be of value to the accused in presenting a case.” United

States v. Boone, 49 M.J. 187, 196 (C.A.A.F. 1998). Further,

generally speaking, “[e]ffective counsel will contact potential

witnesses to determine the facts” of the case. United States v.

Fluellen, 40 M.J. 96, 98 (C.A.A.F. 1994). However, the duty to

investigate does not require trial defense counsel to personally

interview every potential witness in a case. See LaGrand v.

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32

Stewart, 133 F.3d 1253, 1274 (9th Cir. 1998). For example,

“there comes a point at which evidence from more distant

relatives can reasonably be expected to be only cumulative” and

“distract [counsel] from more important duties.” Bobby v. Van

Hook, 558 U.S. 4, 11 (2009). As a result, the key point in

deciding this issue is whether counsel made a good faith and

substantive effort to identify those individuals who might be

most helpful at trial, and to implement a means for obtaining

information about and from these potential witnesses, thereby

allowing counsel an opportunity to make an informed decision

about their value for Appellant’s court-martial. Cf. Eggleston

v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (noting that

trial counsel need not interview a witness if the account is

fairly known to counsel).

Trial defense counsel met this standard here.

Specifically, counsel developed a strategy whereby a mitigation

expert first interviewed potential witnesses and then provided

counsel with a summary of their statements. For those family

members with relevant information, one defense counsel would

then conduct a phone interview to determine whether to select

the person as a witness. There is nothing inherently deficient

about this strategy.

The parties dispute whether trial defense counsel actually

interviewed certain witnesses. For the sake of our analysis, we

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33

will assume that trial defense counsel did not personally

conduct interviews of any of Appellant’s family members and

friends. The record nonetheless indisputably reflects that LTC

Hansen (when he was part of the defense team) and/or the

mitigation specialists did interview those witnesses and then

provided the defense team with summaries of those interviews.

Those witnesses included Appellant’s father, brother, sisters,

two cousins,8 a high school friend, and former landlady. We

conclude that these summaries allowed trial defense counsel to

make informed decisions about whether to call these potential

witnesses to testify at trial. Therefore, we do not find a

sufficient basis to conclude that they engaged in ineffective

assistance of counsel.

C. Nontestifying Professional/Expert Witnesses

Appellant claims that trial defense counsel were

ineffective in failing to interview or call to testify Dr. Donna

Sachs, Appellant’s treating college psychologist, and Dr.

Wilbert Miles, a clinical psychologist. At the outset, we note

that “[i]t can be assumed that in some cases counsel would be

deemed ineffective for failing to consult or rely on experts.”

8 Appellant complains about counsels’ failure to interview a third cousin, Kimberly Vines, but we agree with the Government that her claim about having no recollection of an interview is simply “too equivocal and ambiguous to overcome the presumption” of counsel’s competence. United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002).

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34

Harrington v. Richter, 562 U.S. 86, 106 (2011). However, that

is not the case here.

The record demonstrates that trial defense counsel believed

that a mitigation expert had coached or influenced Dr. Sachs’

memory of Appellant. Regardless of whether counsels’ belief was

correct, trial defense counsels’ concern was reasonable.

Therefore, we will not second guess counsels’ tactical decision

in declining to rely on Dr. Sachs.

We also conclude that there was no deficiency in trial

defense counsels’ decision not to rely on Dr. Miles despite his

expertise in the special challenges faced by African American

soldiers. See Richter, 562 U.S. at 107 (noting that counsel can

formulate reasonable strategy even if it means ignoring experts

“whose insight might possibly have been useful”). We note that

trial defense counsel already had the assistance of other mental

health professionals, including a neuropsychiatrist, a

neuropsychologist, and a forensic psychiatrist. See United

States v. Loving, 41 M.J. 213, 250 (C.A.A.F. 1994). “The mere

fact that [trial] defense counsel did not ‘shop around’ for

another more favorable expert [did] not render them

ineffective.” Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.

1992).

Moreover, even if counsel were deficient in not having Dr.

Miles testify at trial, Appellant has not established any

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35

prejudice resulting from this assumed deficient performance.

First, much of the information that would have been elicited

from Dr. Miles was already obtained from Dr. Woods. Second, we

recognize that Dr. Miles, unlike Dr. Woods, could have provided

an opinion about “how someone from [Appellant’s] background and

culture, presented with distress[ing] life experiences and [a]

history of racial oppression, may have [developed] a state of

mind that his own life was under imminent risk.” However,

Appellant has not demonstrated that this information would have

led to a different outcome on the merits or at sentencing. We

therefore find no merit to Appellant’s ineffective assistance

claims based on counsels’ failure to rely on Dr. Miles or Dr.

Sachs.

ii. Site Visits

Appellant asserts that trial defense counsel were deficient

because they failed to travel to the locations where Appellant

grew up, which he believes hindered them from properly

interviewing witnesses and fully understanding Appellant. The

premise of Appellant’s argument is flawed because the defense

team did conduct site visits. Both LTC Hansen, the first lead

counsel in this case, and the mitigation specialists made site

visits to Appellant’s high school and his childhood

neighborhoods, conducted interviews with Appellant’s

acquaintances and family members, and summarized the interviews

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36

from these visits in memoranda used by the trial defense

counsel. We conclude that trial defense counsel acted

reasonably in opting not to repeat site visits performed by

others on the defense team.

iii. Use of Mitigation Experts

Appellant next criticizes trial defense counsels’ use of

the mitigation specialists in his case, pointing to counsels’

failure to follow all of their advice as well as the purported

dysfunction in counsels’ relationship with them. In examining

this issue, we first acknowledge the special importance of

mitigation specialists in military justice capital cases. See

Kreutzer, 61 M.J. at 298 n.7, 302-03, 305. Without a

“professional death penalty bar in the military services,” these

specialists are likely “the most experienced member[s] of the

defense team in capital litigation.” Id. at 298 n.7. The

mitigation specialists’ role is “to coordinate an investigation

of the defendant’s life history, identify issues requiring

evaluation by psychologists, psychiatrists or other medical

professionals, and assist attorneys in locating experts and

providing documentary material for them to review.” Id. at 302

(citation and footnote omitted). The specialists are considered

“an indispensable member of the defense team throughout all

capital proceedings.” Id. at 305 (citation omitted). As a

result, “mitigation specialists may play a particularly

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37

important role in ensuring the fair and full adjudication of

military death penalty cases where . . . counsel have little

training or experience in capital litigation.” Id. at 303.

In the instant case, however, we first conclude there is no

basis to find counsel ineffective for failing to always follow

the mitigation specialists’ advice. It is counsel, not

mitigation specialists, who are entrusted with making strategic

litigation decisions in each case. See Strickland, 466 U.S. at

689 (noting “the constitutionally protected independence of

counsel” and “the wide latitude counsel must have in making

tactical decisions”).

Second, for purposes of this appeal we will accept the

premise that there was some dysfunction with and antipathy

toward the mitigation specialists on the part of the trial

defense counsel. But despite these problems, the various

mitigation specialists employed in Appellant’s case performed

extensive work and gathered significant information about

Appellant’s background, upbringing, and related issues which the

trial defense counsel effectively used in the preparation and

presentation of Appellant’s case. We particularly note the

efforts of Ms. Grey, whose nearly 400 hours of mitigation work

resulted in interviews, interview summaries, and thousands of

pages of records which were provided to trial defense counsel.

When Ms. Grey was fired by Appellant at his mother’s behest, Ms.

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38

Grey estimated that an additional 150 to 210 hours of work was

needed to complete the mitigation investigation. One of her

successor mitigation specialists, Ms. Nerad, performed nearly

three times this estimate by billing approximately 565 hours of

work, which resulted in additional interviews, summaries, and

records reviewed by trial defense counsel. Therefore,

regardless of whatever dysfunction or antipathy might have

existed, the mitigation specialists were able to adequately

perform their important role by providing trial defense counsel

relevant and useful information in defending Appellant. See

Kreutzer, 61 M.J. at 302. Trial defense counsel then used this

information to defend Appellant both during the merits and

penalty phases of the trial in questioning witnesses and

presenting evidence.

Finally, trial defense counsel made a reasonable strategic

decision not to have a mitigation specialist testify or be

physically present at Appellant’s trial. Although it may be

advantageous to have a mitigation specialist actively

participate at a capital trial, it is not required. See

Kreutzer, 61 M.J. at 305. Moreover, the circumstances of this

case demonstrate that counsel acted reasonably in deciding not

to employ a mitigation specialist at trial. See Pinholster,

131 S. Ct. at 1406 (“No particular set of detailed rules for

counsel’s conduct can satisfactorily take account of the variety

United States v. Akbar, No. 13-7001/AR

39

of circumstances faced by defense counsel . . . .”) (quoting

Strickland, 466 U.S. at 688-89). The record demonstrates that

the appointed mitigation specialist at the time of trial, Ms.

Nerad, disagreed with a number of approaches taken by trial

defense counsel. Under these circumstances, trial defense

counsel could reasonably conclude that the presence and

participation of the mitigation specialist at trial would not

have been beneficial. See id. at 1407 (noting that reviewing

court must entertain the range of possible reasons for counsel’s

decisions). Therefore, we find no basis to conclude that trial

defense counsel were ineffective in the manner in which they

used the mitigation specialists.

iv. Information to Dr. Woods

Appellant claims that trial defense counsel were

ineffective for failing to provide Dr. Woods with certain

information, including sufficient mitigation evidence and

additional psychological testing data. Appellant asserts that

this information would have allowed Dr. Woods to make a forensic

diagnosis that Appellant suffered from schizophrenia and post

traumatic stress disorder.

However, even if we assume Dr. Woods received none of this

material, we still find no demonstrated prejudice. First, even

in the absence of additional information, Dr. Woods was able to

provide the panel with “differential diagnoses” of schizotypal

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personality disorder, high functioning paranoid schizophrenia,

and schizoaffective disorder. Dr. Woods opined that on March

22, 2003, Appellant’s symptoms, “played a great role in his

mental state at the time of the offense” by “overwhelm[ing

Appellant] emotionally and to really not think as clearly, to

not really understand.” The post-trial affidavits do not

demonstrate that Dr. Woods would have changed this opinion or

strengthened it with additional information or testing.

Second, Dr. Woods testified that “it would really require

appropriate treatment to really determine which of the three

[differential diagnoses] would be accurate.” (Emphasis added.)

This testimony indicates that Dr. Woods himself recognized that

he could not have given a more definitive diagnosis of

Appellant, even with more testing and mitigation information.

Third, Dr. Woods downplayed the importance of a precise

diagnosis, stating: (1) “The fact that it may not be called

schizophrenia or what have you is, in the long run, less

important . . . .”; and (2) “The fact that it’s not -- it may

not be called schizophrenia is not clinically relevant.” As can

be seen then, Dr. Woods’s testimony emphasized Appellant’s

symptoms and minimized the importance of a precise diagnosis.

Under these circumstances, we conclude that Appellant has not

demonstrated any likelihood of a different outcome in this case

United States v. Akbar, No. 13-7001/AR

41

even if trial defense counsel had provided additional

information or testing data to Dr. Woods.

b. Additional Funding and Continuances

Appellant claims that trial defense counsel were

ineffective for failing to request additional funding and for

failing to seek a continuance at two separate points before

trial -- following the mitigation specialist’s request in early

March 2005, and following Appellant’s alleged stabbing of the MP

in late March 2005. We first reject this argument because

Appellant has not carried “his burden to show that his counsel

would have been successful if he had filed . . . timely

motion[s]” for a continuance and additional funding. United

States v. Jameson, 65 M.J. 160, 164 (C.A.A.F. 2007). Simply

stated, there is no “reasonable probability that [the] motion[s

for a continuance and additional funding] would have been

[deemed] meritorious” by the military judge. Id. at 163-64

(quoting United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F.

2001)). These motions would have come a few days before and one

month before the start of trial, respectively, and after the

military judges in this case already had granted three prior

continuances in a case that was originally scheduled for trial

in July 2004. Given the late requests and this record of delay,

which totaled more than 700 days after the Camp Pennsylvania

attack, there is an insufficient basis for us to conclude that

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the military judge likely would have granted additional

continuances, see United States v. Wiest, 59 M.J. 276, 279

(C.A.A.F. 2004) (listing factors relevant for continuance), or

additional funding, see United States v. Garries, 22 M.J. 288,

291 (C.M.A. 1986) (requiring showing of why request for funds

was needed).

We next observe that Appellant has not adequately

demonstrated that additional time or funding in early March 2005

would have resulted in a more favorable outcome in the

proceedings. Specifically, Appellant has not demonstrated that

additional investigation would have resulted in a substantively

different or enhanced mitigation posture at trial, particularly

where approximately 1,000 hours of investigation already had

been devoted to this case. Accordingly, Appellant has not

established that counsel were ineffective for failing to request

additional funds or a continuance in early March 2005.

In regard to late March 2005, we also conclude that counsel

were not ineffective for deciding not to seek a continuance

after the March 30, 2005, stabbing of the MP. The record is

clear that trial defense counsel made the strategic calculation

that a delay in the court-martial would provide the Government

with an opportunity to charge Appellant with the assault on the

MP. Evidence admitted at trial in support of this additional

specification likely would have greatly undermined the defense

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43

position that Appellant’s prior violent conduct was aberrational

and that Appellant had rehabilitative potential. Therefore, we

do not conclude that trial defense counsel were ineffective for

deciding not to seek a continuance at that point in the

proceedings.

c. Special Instruction Regarding Guilty Pleas

Appellant contends that his trial defense counsel were

ineffective for failing to seek a mitigation instruction

concerning Appellant’s inability to plead guilty.9 Indeed, we

note that before trial began, trial defense counsel withdrew a

requested instruction informing the members that because this

matter had been referred as a capital case, Article 45, UCMJ, 10

U.S.C. § 845 (2012), required Appellant to plead not guilty and

be tried before members. However, the record shows that trial

defense counsel acted entirely reasonably in obtaining the

withdrawal of this instruction for the simple reason that

Appellant had decided not to submit an offer to plead guilty and

instead had decided to argue at trial that he had not

premeditated the attacks. Therefore, we conclude that trial

defense counsel were not ineffective for withdrawing the

instruction.

9 Article 45, UCMJ, states, “A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged.” Article 45(b), UCMJ, 10 U.S.C. § 845(b) (2000).

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d. Voir Dire

Appellant challenges trial defense counsels’ use of an “ace

of hearts” strategy during the voir dire process.10 An ace of

hearts strategy is predicated on the fact that in order for a

panel to impose a death sentence, the members must vote

unanimously to impose that sentence. See R.C.M. 1006(d)(4).

Therefore, the strategy posits that the accused will benefit

from having the largest possible number of panel members because

that will increase the chances that at least one member of the

panel (the so-called “ace of hearts”) will vote for a sentence

other than the death penalty. In furtherance of this strategy,

trial defense counsel in the instant case made the strategic

decision to minimize their use of peremptory challenges and

challenges for cause.

It may be argued that the ace of hearts strategy ignores

panel dynamics whereby vocal and opinionated members hostile to

the defense position may disproportionately impact

deliberations.11 However, in light of the fact that trial

10 Appellant also claims that counsel were ineffective for failing to seek a change in venue. The record reflects that counsel sought to change venue but failed to convince the military judge of the need to do so. As a result, counsels’ attempt to change venue means that they were not ineffective for failing to do so. 11 See Eric R. Carpenter, An Overview of the Capital Jury Project for Military Justice Practitioners: Jury Dynamics, Juror Confusion, and Juror Responsibility, 2011 Army Law. 6, 8-10, 1316 & nn. 28, 46-47 (May 2011).

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45

defense counsel consulted with other experienced attorneys and

relied on an appellate military judge’s concurring opinion in

United States v. Simoy, 46 M.J. 592, 625 (A.F. Ct. Crim. App.

1996) (Morgan, J., concurring), rev’d in part on other grounds

by 50 M.J. 1 (C.A.A.F. 1998), before deciding to employ this

strategy, we conclude that their decision is “virtually

unchallengeable.” United States v. Curtis, 44 M.J. 106, 119

(C.A.A.F. 1996) (quoting Strickland, 466 U.S. at 690).12

Therefore, we conclude that there was no ineffective assistance

of counsel.

2. Merits Phase

Appellant claims that trial defense counsel were

ineffective for conceding guilt in opening statement, during the

defense case on the merits, and in closing argument. However,

Appellant’s assertions are misplaced because trial defense

counsel never conceded that Appellant was guilty of premeditated

murder, only that he had committed certain acts.

To be blunt, there was absolutely overwhelming evidence

adduced at trial that Appellant committed the acts that resulted

in the deaths of MAJ Stone and CPT Seifert, and the wounding of

fourteen other military officers. Therefore, it was not

12 As discussed infra, we do not find a sufficient basis to conclude that any of the panel members should have been disqualified for cause, so counsel were not ineffective for failing to challenge members for bias.

United States v. Akbar, No. 13-7001/AR

46

unreasonable for trial defense counsel to forego trying to

convince the court-martial panel to the contrary, and to instead

focus squarely on trying to persuade the panel members that

Appellant’s acts were not premeditated. Accordingly,

concessions such as the ones made by trial defense counsel that

Appellant “threw those grenades” and “shot and killed Captain

Seifert” were not unreasonable because they did not concede

Appellant’s guilt to capital murder. Indeed, this type of

approach is a well-recognized defense strategy in capital cases.

See Florida v. Nixon, 543 U.S. 175, 190-91 (2004); Lingar v.

Bowersox, 176 F.3d 453, 458–59 (8th Cir. 1999) (holding that

concession of elements of second-degree murder to challenge

defendant’s mens rea for a capital-murder conviction was not

constitutionally deficient where overwhelming evidence pointed

to defendant as perpetrator). Accordingly, we conclude that

trial defense counsel were not ineffective in this regard.

3. Penalty Phase

Appellant describes trial defense counsels’ presentencing

presentation as consisting of “[t]hirty-eight minutes [of

testimony and Appellant’s unsworn statement] and a document

dump.” Specifically, he criticizes the performance of trial

defense counsel for failing to develop a coherent mitigation

theme, submitting his entire diary for the panel’s review, and

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47

presenting a mitigation case primarily through documents instead

of live witness testimony.

In closely analyzing this issue, we acknowledge at the

outset that trial defense counsel may well have presented a

stronger case in mitigation if they had adopted a different

approach and taken different steps during the presentencing

phase of this court-martial. However, in determining whether

there was ineffective assistance of counsel, we do not assess

trial defense counsels’ performance through the prism of

appellate hindsight and then apply our subjective view of how we

think defense counsel should have conducted the trial. Rather,

pursuant to Supreme Court precedent, we are obligated to

determine whether trial defense counsels’ performance fell below

an “objective standard of reasonableness” and, if so, whether

there was a “reasonable probability” that the result of the

proceeding would have been different absent counsels’ deficient

performance. Strickland, 466 U.S. at 688, 694. In the instant

case, not only do we conclude that trial defense counsels’

performance was not “measurably below the performance standards

ordinarily expected of fallible lawyers,” Davis, 60 M.J. at 474,

we also conclude that even if trial defense counsel had handled

the mitigation case precisely as appellate defense counsel now

avers they should have, there is no reasonable probability that

the court-martial panel would have imposed a lesser sentence.

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See Loving v. United States, 68 M.J. 1, 7 (C.A.A.F. 2009).

Accordingly, for the reasons cited in greater detail below, we

disagree with Appellant’s assessment of this issue.

a. Mitigation Theme

Appellant argues that trial defense counsel failed to

develop a comprehensive and compelling mitigation argument

encompassing Appellant’s upbringing in accordance with the

tenets of the Nation of Islam, his need to overcome great

disadvantages as a youth, and his continued willingness to

provide love and support to his family. We recognize that

counsel are well advised to adopt a coherent defense theme and

strategy throughout a trial. Curtis, 44 M.J. at 120. However,

there are a number of acceptable ways to establish, develop, and

present such a theme in any given case. See Pinholster, 131 S.

Ct. at 1407.

In the instant case, the record reflects that trial defense

counsels’ mitigation strategy was to emphasize Appellant’s

mental illness while also pointing out Appellant’s difficult

upbringing, his lack of ties to radical Islamic groups, and the

Army leadership’s questionable decision to bring Appellant to

Kuwait despite signs of mental illness and poor NCO skills. The

evidence that supported these arguments was developed during

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both the merits13 and penalty phases of the trial. Because trial

defense counsels’ decision about how best to handle the

sentencing argument followed an extensive mitigation

investigation and exploration of other possible approaches,

Appellant’s criticism amounts to a dispute over counsels’

strategy. See United States v. Gray, 51 M.J. 1, 19 (C.A.A.F.

1999) (characterizing argument about counsels’ failure to

present an “adequate sentencing case” as an attack on “strategy

and tactics”). Under such circumstances, Appellant has not

established that trial defense counsels’ selection and

presentation of a mitigation theme constituted ineffective

assistance of counsel.

13 The “frontloading” of mitigation evidence during the merits phase is reasonable where the same fact-finder (1) considers guilt and penalty evidence and (2) is instructed about the ability to consider all evidence for mitigation. See Pinholster, 131 S. Ct. at 1408 (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)); Bell v. Cone, 535 U.S. 685, 699 (2002) (rejecting ineffective sentence claim for failure to present testimony of medical experts at penalty phase where “compelling mitigating evidence” admitted during guilt phase); Curtis, 44 M.J. at 119 (“Mitigating evidence may . . . be introduced at both the findings and the sentencing stages of a capital trial.”); Eaton v. Wilson, No. 09-CV-261-J, 2014 U.S. Dist. LEXIS 163567, at *398-*99, 2014 WL 6622512, *149-*50 (D. Wyo. Nov. 20, 2014) (explaining that “if the jury knows nothing about the defendant other than the facts of the crime when it renders its verdict finding him guilty, the defense bears a very heavy burden to win them over to life in the second stage of trial”). Here, the military judge instructed the panel that it could “consider any matter in extenuation and mitigation, . . . whether it was presented before or after findings.” Counsel therefore reasonably adopted a strategy of presenting mitigation evidence during the guilt phase.

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b. Submission of the Diary

Appellant argues that trial defense counsel were

ineffective for submitting the entirety of Appellant’s “damning”

diary into evidence at sentencing because it led to the

introduction of aggravating evidence, not mitigating evidence.

However, upon closely analyzing this issue, we find there is an

insufficient basis to conclude that trial defense counsel

provided ineffective assistance of counsel.

To be clear, we fully recognize that some of the entries

contained in the diary introduced by the defense were, indeed,

damning. However, we are also mindful of the fact that when

counsel made the decision to introduce the entire diary, the

Government already had presented to the panel some of its most

damaging portions. For example, the Government introduced the

following two passages: “[A]s soon as I am in Iraq I am going

to try to kill as many [fellow soldiers] as possible”; and “I

may have to make a choice very soon about who to kill. . . . I

will have to decide if I should kill my Muslim brothers fighting

for Saddam Hussein or my battle buddies.” These portions, along

with others introduced to the panel upon admission of the entire

diary, underscored Appellant’s premeditation. However, it is

important to note that at the time of the diary’s admission, the

members had already found premeditation during the merits phase,

and the existence or degree of premeditation was not at issue

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51

during sentencing. Therefore, the record indicates not only

that trial defense counsel reasonably concluded that additional

passages in the diary would not inflict any more damage on the

defense than those already selected by the Government, but that

they also reasonably concluded that the diary in its entirety

would paint a persuasive portrait of a mentally ill man who

could not control his thought processes or his actions in the

period leading up to the Camp Pennsylvania attack.14 Therefore,

we conclude that trial defense counsel were well aware of the

inflammatory nature of portions of the diary, yet made a

strategic decision to submit the diary in its entirety. In

doing so, we note that generally speaking, we “‘will not second

guess the strategic or tactical decisions made at trial by

defense counsel.’” United States v. Mazza, 67 M.J. 470, 475

(C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198,

202 (C.A.A.F. 2001)). Indeed, we decline to do so here.

14 For instance, in the diary entries from the two months before Appellant’s attack, Appellant wrote (1) “I am in no condition to take care of a family and when I leave the Army, I may be homeless. I pace, daydream, and talk to myself everyday. And I am alone with very little chance of finding a mate.”; and (2) “I am a loser. That is just the truth. Everything I have tried to work for I don’t have. A wife, good job, Self-respect.” Throughout the thirteen years that Appellant kept the diary, his entries reflected his struggles as demonstrated by his thoughts about suicide, his low self-esteem, his problems staying awake, his isolation or loneliness, his problems having relationships with women, his sexual frustrations, his problematic relationships with his parents, and his problems maintaining employment.

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Appellant further claims that even if it was a reasonable

strategic decision to admit the diary as a whole, witness

testimony was needed to place the diary entries into proper

perspective. The record shows, however, that counsel did

contextualize the diary through Dr. Woods’s testimony, as well

as through the FBI analysis of the diary and Ms. Grey’s analysis

of the diary, which were submitted to the panel members as

evidence. Also, counsels’ sentencing argument emphasized that

the diary provided an important glimpse into Appellant’s mental

state and that it showed the facts and effects of Appellant’s

difficult upbringing. Moreover, with the diary’s admission,

counsel was able to argue at sentencing that despite the

conflict between the mental health experts as to a specific

diagnosis, the diary showed that Appellant suffered from a

profound mental illness when he committed the offenses, which

warranted a sentence of life imprisonment rather than the death

penalty. Given these circumstances, we conclude that counsels’

performance was not deficient.

c. Mitigation Primarily Through Documents

Appellant claims that trial defense counsel were

ineffective because they presented Appellant’s mitigation case

primarily through documents instead of through live testimony by

family and friends. However, we disagree with Appellant’s

initial premise that the mitigation case consisted only of

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53

thirty-eight minutes of testimony and a “document dump.” The

record shows that trial defense counsel actually began

developing the mitigation case during the merits phase of the

trial. They did so through the testimony of the expert

witnesses, members of Appellant’s unit, and Appellant’s college

roommate. This evidence covered Appellant’s troubled

upbringing, his strange behavior, his tendency to spend time

alone, his poor skills as an NCO, his symptoms of mental

illness, and his mental illness diagnoses. Once the merits

phase ended, counsel did not ignore this evidence but instead

built upon it during the presentencing phase and relied upon it

during the sentencing arguments. Therefore, we conclude that

trial defense counsel presented a more substantial and

thoughtful mitigation case at trial than Appellant now claims on

appeal.

We also disagree with Appellant’s criticism of trial

defense counsels’ decision to present mitigation evidence

primarily through documents rather than through live testimony.

In examining this issue, we view it as an essential fact that

trial defense counsels’ presentation was greatly affected by

Appellant’s alleged stabbing of an MP just days before the

court-martial began. In light of this incident, trial defense

counsel made a strategic decision to be very cautious about

taking any steps that could be used by the Government to

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introduce evidence of this uncharged misconduct in the course of

the trial. Trial defense counsel were successful in this

effort, and we deem their approach to be a reasonable and

appropriate one. See American Bar Association Guidelines for

the Appointment and Performance of Defense Counsel in Death

Penalty Cases (ABA Guidelines) 10.11.G, reprinted in 31 Hofstra

L. Rev. 913, 1056-57 (2003) (noting that “[i]n determining what

presentation to make concerning penalty, counsel should consider

whether any portion of the defense case will open the door to

the prosecution’s presentation of otherwise inadmissible

aggravating evidence”). Any one of the witnesses who might have

been called to testify by the defense could have unintentionally

opened the door to evidence about the MP stabbing by, for

example, testifying about their belief that Appellant’s actions

at Camp Pennsylvania were out of character. Therefore, trial

defense counsel reasonably concluded that they should limit the

number of defense witnesses both because they posed a danger to

Appellant’s case and because, if they did testify, their

testimony would be so circumscribed that whatever value they

otherwise would have had for the defense would be substantially

diminished. See Cone, 535 U.S. at 700-01 (finding state court’s

application of Strickland was not unreasonable with respect to

failing to call other witnesses where “counsel feared that the

prosecution might elicit information about [the defendant’s]

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criminal history”); Burger, 483 U.S. at 792 (concluding decision

not to present character witnesses not unreasonable where prior

convictions might have been introduced on cross); Tinsley v.

Million, 399 F.3d 796, 809-10 (6th Cir. 2005) (noting no

testimony may be better than some testimony “given the risk that

every positive argument by a defendant potentially opens the

door to a more-harmful response”).

We also conclude that trial defense counsel did not merely

“dump” a bunch of documents on the panel. Counsel reviewed and

selected relevant documents for the members to consider, which

were presented to each member in a binder. Among the documents

submitted to the members were those that provided important

context for, and useful summaries of, Appellant’s diary.

The military judge implicitly instructed the members that

they were required to review the documents in the binders. For

instance, the military judge instructed the members prior to

disseminating the binders as follows:

The defense has requested, the government does not oppose, and I’m going to allow you to take several defense exhibits with you when we recess for the day in a few moments. They are in the black binders in front of you. The exhibits contain a lot of material, and it will help if you have read through the documents before the defense calls its witnesses starting tomorrow. Since counsel estimate it may take some time to do so, rather than require you to read it in open court, which is what would normally happen, I’m going to let you read it at home or work.

A couple cautionary instructions however. You are only to read the exhibits. Please do not conduct

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any independent research based on anything you may read. Also, please, do not discuss the exhibit with anyone, to include friends and family members, or yourselves. You can only discuss the exhibits with each other once you begin your formal deliberations, which probably won’t happen until Thursday. Also do not copy the exhibits or let anyone else read them. And please bring them back with you when you return to court tomorrow morning . . . .

This instruction informed the members of their duty to review

the exhibits in two ways. First, the military judge told the

members, “rather than require you to read [the evidence] in open

court, which is what would normally happen,” they were being

permitted to “read it at home or work.” (Emphasis added.)

Second, the military judge told the members they were “only to

read the exhibits” instead of discussing them or performing

research. (Emphasis added.) These facets of the instruction

had the effect of notifying the members that they had to review

Appellant’s documentary evidence.

The military judge reiterated the members’ duty to review

the defense exhibits when he allowed the members to take the

binders home for a second day, stating: “[Y]ou should be able

to take them with you for the rest of the day if you need more

time to review the documents.” (Emphasis added.) By informing

the members that they had more time to review the documents, the

military judge again signaled to the members that they were

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expected to review all the evidence.15 The record does not

reveal that the members disobeyed the military judge’s

instructions, so we presume that the members followed them. See

United States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012). We

therefore conclude that the members were aware of their duty to

review, and did in fact review, the evidence submitted to them

in the binders.

Counsels’ sentencing argument then explained the purpose of

the diary by asserting that it provided a “unique” look into

Appellant’s troubled mind. This is hardly a case in which

counsel obtained records and “then dump[ed] the whole file in

front of the jury without organizing the files, reading them,

15 Besides these specific instructions, the military judge’s general sentencing instructions apprised the members of their duty to consider all evidence in the case, including that submitted in the binders. For instance, the military judge instructed the members that their deliberations on the aggravating factors “should properly include a full and free discussion on all of the evidence that has been presented.” (Emphasis added.) The military judge also instructed the members that they could consider “any matter in extenuation and mitigation, whether pre-offense or post-offense; whether it was presented before or after findings; and whether it was presented by the prosecution or the defense.” These general sentencing instructions informed the members that their sentencing deliberations were to be based on all the evidence, which included the defense sentencing exhibits the military judge permitted the members to take home. Finally, the military judge instructed the members of the importance of considering the evidence submitted in the binders when he listed the possible mitigating factors in the case, some of which explicitly referenced the evidence submitted in the binders, including Appellant’s diary, Ms. Grey’s interviews of individuals, the diary analyses by Ms. Grey and the FBI, and the social service records.

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eliminating irrelevant files or explaining to the jury how or

why they are relevant.” Johnson v. Bagley, 544 F.3d 592, 602

(6th Cir. 2008). Accordingly, we do not see a sufficient basis

to conclude that trial defense counsels’ method of introducing

the documents was deficient.

Appellant insists that the live testimony of family members

and friends, not submission of documents, was needed to present

all the available mitigation evidence to counter the

Government’s aggravation evidence. He further argues that trial

defense counsels’ failure to present this evidence constituted

an incomplete and incompetent defense.

To be sure, “evidence about [an accused’s] background and

character is relevant because of the belief, long held by this

society, that [those accused] who commit criminal acts that are

attributable to a disadvantaged background, or to emotional and

mental problems, may be less culpable than [those] who have no

such excuse.” Loving, 68 M.J. at 15 (quoting Boyde v.

California, 494 U.S. 370, 382 (1990)). Here, however, trial

defense counsel did not ignore Appellant’s social history. They

introduced evidence about Appellant’s abusive stepfather through

the testimony of Drs. Tuton and Woods. Further, through

testimony, a declaration from Appellant’s brother, and the

mitigation specialist’s interview notes, they introduced

evidence about Appellant growing up in impoverished

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circumstances and living and going to school in dangerous

neighborhoods. And through Appellant’s diary, trial defense

counsel also introduced evidence of Appellant’s adverse

upbringing. Finally, the exhibits submitted by trial defense

counsel at sentencing contained information that humanized

Appellant such as the diary entries that detailed assistance to

his family and listed his goals of assisting his family and his

community, the interview summaries of Appellant’s teachers that

described his work ethic and politeness, the statement from

Appellant’s brother that recounted Appellant’s financial

support, and the interview summary from Appellant’s childhood

imam that described Appellant’s lack of aggression. Therefore,

there is an insufficient basis to conclude that trial defense

counsel needed additional live testimony in order to present key

points of their mitigation case.

The record also reveals that counsel did not act

unreasonably in choosing not to present live testimony from

Appellant’s father, brother, sisters, cousins, high school

friend, and former landlady. A trial defense counsel’s decision

on whether to call a witness is a tactical decision. See United

States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001); Fluellen,

40 M.J. at 98 (noting part of the tactical decision in the case

was deciding what witnesses not to call). In this case, trial

defense counsel made an informed tactical decision, after a

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reasonable investigation, when selecting trial witnesses. See

Wiggins, 539 U.S. at 533-34. Therefore, for this reason and for

the additional reasons cited below, we conclude that Appellant

has not provided us with a sufficient basis to question trial

defense counsels’ tactical decisions regarding these witnesses.

First, trial defense counsel had interactions with

Appellant’s father prior to trial and obtained additional

information about his background through the mitigation expert’s

report. They therefore assessed his likely manner of

presentation as a witness, and learned of his significant

criminal background, history of drug use, and impaired cognitive

abilities. See Pinholster, 131 S. Ct. at 1407 (noting that in

applying strong presumption of competence, court is required to

affirmatively entertain range of possible reasons for counsel’s

performance). Upon doing so, counsel explicitly informed the

military judge that they had made an informed, conscious, and

strategic decision not to have Appellant’s father testify during

sentencing. See Lord v. Wood, 184 F.3d 1083, 1095 n.8 (9th Cir.

1999). We see no basis to question this decision.

Appellant claims that his father would have served as a

valuable witness to document “the prejudices the Nation of Islam

instilled in” Appellant. Indeed, trial defense counsel could

have employed this strategy of eliciting testimony on this

point. However, they chose a different strategy, one that

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described Appellant as not being “hate-filled” but “a person

with mental illness, who is very sensitive to anything said to

him.” In fact, trial defense counsels’ affidavit explains that

they wanted to downplay Appellant’s link to the Nation of Islam

because it would “likely . . . carry strong negative

connotations with the panel members,” which ultimately would

harm Appellant’s defense. Additionally, counsel chose not to

portray Appellant as a hate-filled person since childhood

because this approach would have conflicted with their strategy

of portraying Appellant’s actions on March 22, 2003, as

aberrational and not premeditated, and because it would have

undermined their position that Appellant had rehabilitative

potential. We therefore do not find a basis to question

counsels’ tactical decision not to call Appellant’s father to

testify.

Second, we conclude that counsel was not deficient in

presenting the declaration of Appellant’s brother at trial

rather than having the brother testify. Although the brother

now claims that he was willing and able to testify at

Appellant’s trial, the brother’s April 26, 2005, trial

declaration stated that he could not leave his wife’s side due

to the birth of a child. Additionally, we conclude there is no

additional information in the brother’s post-trial one-page

declaration that reasonably could be considered powerful

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mitigation evidence. We do not consider counsels’ failure to

call Appellant’s brother as a witness to be deficient

performance under these circumstances.

Third, the record reflects that trial defense counsel had

the mitigation specialists’ interview summaries for Appellant’s

sisters, his cousins, a high school friend, and his former

landlady. With this information, trial defense counsel made an

informed decision not to call these witnesses, and we do not

find a sufficient basis to second-guess that decision. Cf. Lema

v. United States, 987 F.2d 48, 54 (1st Cir. 1993) (noting that

“decision whether to call a particular witness is almost always

strategic, requiring a balancing of the benefits and risks of

the anticipated testimony”).

We finally conclude that even if trial defense counsels’

mitigation presentation was deficient, Appellant has not

established prejudice. This inquiry asks “whether if the

members had been able to place the additional evidence ‘on the

mitigating side of the scale, there is a reasonable probability

that at least one [member] would have struck a different

balance.’” Loving, 68 M.J. at 7 (quoting Wiggins, 539 U.S. at

537). The new mitigating evidence “must differ in a substantial

way -- in strength and subject matter -- from the evidence

actually presented at sentencing.” Id. at 16 (quoting Hill v.

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Mitchell, 400 F.3d 308, 319 (6th Cir. 2005)). Appellant has not

met this standard.

The additional post-trial evidence in this case can

generally be placed into one of seven categories: Appellant’s

parents’ backgrounds, the history of family mental illness,

Appellant’s challenging upbringing and his positive qualities as

a child, the influence on Appellant of the Nation of Islam,

Appellant’s high school experience, Appellant’s attempt to repay

a debt, and the impact of Appellant’s execution on his family.

Many of these areas were presented at trial, including

information about Appellant’s upbringing and positive qualities,

his high school experience, and the existence of mental health

issues in the family. While some of the post-trial information

may be viewed as elaborating on these points, there is not a

sufficient basis to conclude that this information was different

in quality or substance from what the members actually

considered. Therefore, we consider it to be “largely

cumulative.” See Loving, 68 M.J. at 16.

We recognize that the material submitted by Appellant post

trial includes information in four areas that were not addressed

at the court-martial. However, we conclude that Appellant was

not prejudiced by counsels’ failure to present this evidence.

First, trial defense counsel concluded that the role of the

Nation of Islam in Appellant’s life represented a “double-edged

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sword” in that any mitigation effect of this information may

have been outweighed by the extent to which it alienated the

panel and undermined trial defense counsels’ theory that

Appellant’s attack was due to mental illness and was not the

product of hatred and premeditation. Cf. Wiggins, 539 U.S. at

535 (noting that limited investigation justified where

defendant’s history was “double-edged”). Second, Appellant’s

attempt to repay his landlady long after she expected him to,

although a positive story, certainly is not “sufficiently

compelling” to establish prejudice given Appellant’s crimes and

their impact on the victims. See Loving, 68 M.J. at 17. Third,

although the post-trial evidence demonstrates that Appellant’s

parents’ had challenging upbringings, Appellant does not explain

why this information would prove compelling to the panel members

as they decided the appropriate sentence to impose on Appellant.

Finally, we recognize the potential mitigating value of

Appellant’s family members expressing opinions about the impact

Appellant’s death sentence would have on his family. We do not

seek to minimize the importance of such testimony in capital

cases. However, in the instant case, there is an insufficient

basis to conclude that the panel’s knowledge of this information

would have changed the result of the proceeding given the

aggravating circumstances. Moreover, trial defense counsel had

to weigh whether such testimony would have alienated the panel

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members in light of the fact that Appellant’s murderous actions

had so tragically and irrevocably affected the families of the

victims of Appellant’s attack. Accordingly, we conclude that

Appellant has not met his burden of establishing that he was

prejudiced by counsels’ submission of documents instead of live

witness testimony.

4. Cumulative Error

We next consider whether trial defense counsels’ conduct,

examined in its totality, constituted ineffective assistance of

counsel even if individual oversights or missteps did not

independently rise to that level. Loving, 41 M.J. at 252; see

also United States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014).

As shown above, for the vast majority of Appellant’s individual

ineffective assistance of counsel claims, there is an

insufficient basis to conclude that trial defense counsel acted

unreasonably. These claims do not provide a basis for

establishing ineffective assistance of counsel based on

cumulative error. See United States v. Hall, 455 F.3d 508, 520

(5th Cir. 2006) (stating that “ineffective assistance of counsel

cannot be created from the accumulation of acceptable decisions

and actions”); Campbell v. United States, 364 F.3d 727, 736 (6th

Cir. 2004); Hough v. Anderson, 272 F.3d 878, 907 n.14 (7th Cir.

2001). In those few instances where we assumed otherwise, we

found no prejudice. Even considering these instances of assumed

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deficient performance in the aggregate, we conclude that they do

not establish prejudice at the findings phase or penalty phase

of the trial. Therefore, we conclude that Appellant has not

provided us with a sufficient basis to apply the cumulative

error doctrine to the circumstances of his case, and we decline

to find ineffective assistance of counsel on the basis of this

doctrine. See Becker v. Luebbers, 578 F.3d 907, 914 n.5 (8th

Cir. 2009) (noting that even if some aspect of counsel’s

performance was deficient, prejudice must be limited to

constitutionally defective aspects of representation).

B. DuBay Hearing

Appellant asserts that, at a minimum, we should order a

post-trial fact-finding hearing in this case under United States

v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Our decision in

United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) sets forth

the proper standard to determine whether a DuBay hearing is

necessary to resolve ineffective assistance of counsel claims.

We have considered the five Ginn factors16 and conclude that the

issues in this case can be resolved on the record before us and

without a DuBay hearing.

16 These factors are whether: (1) the facts alleged would result in relief; (2) the alleged facts are conclusory or speculative; (3) the parties agree on the facts; (4) the record “compellingly demonstrate[s] the improbability of” the allegations; and (5) Appellant adequately explains why an allegation contradicts a matter within the guilty plea record. Ginn, 47 M.J. at 248.

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C. Victim-Impact Presentation

Appellant challenges two aspects of the Government’s

victim-impact presentation. First, he contends that

presentencing testimony from Government witnesses violated the

Eighth Amendment. Second, he challenges the propriety of trial

counsels’ sentencing argument. In making these claims,

Appellant correctly concedes that his trial defense counsel did

not raise objections to the witness testimony or to the trial

counsels’ argument during the court-martial. Therefore, we note

that he has “forfeit[ed] appellate review of [these issues]

absent plain error.” United States v. Eslinger, 70 M.J. 193,

197-98 (C.A.A.F. 2011); see also United States v. Frey, 73 M.J.

245, 247 n.1 (C.A.A.F. 2014) (sentencing argument); United

States v. Holt, 33 M.J. 400, 408-09 (C.M.A. 1991) (victim-impact

testimony). To prevail under the plain error standard,

Appellant has the burden of “establishing (1) error that is

(2) clear or obvious and (3) results in material prejudice to

his substantial rights.” United States v. Knapp, 73 M.J. 33,

36, reconsideration denied, 73 M.J. 237 (C.A.A.F. 2014).

We conclude that Appellant fails to meet the first prong of

the plain error standard. Victim impact testimony is admissible

in capital cases to inform the panel about “the specific harm

caused by the [accused].” Payne v. Tennessee, 501 U.S. 808, 825

(1991); United States v. Wilson, 35 M.J. 473, 476 n.6 (C.M.A.

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1992). Trial counsel may elicit evidence about (1) the victim’s

personal characteristics or (2) the emotional impact of the

murder on the victim’s family. See Payne, 501 U.S. at 827.

What is not permitted is evidence or argument about the family

members’ “opinions and characterizations of the crimes,” the

defendant, or the appropriate sentence. See Booth v. Maryland,

482 U.S. 496, 508-09 (1987), overruled on other grounds by

Payne, 501 U.S. at 830 n.2. Examples of this type of

impermissible victim-impact evidence include: an opinion from

the victim’s family members that the victims were “butchered

like animals”; a statement that the witness “doesn’t think

anyone should be able to do something like that and get away

with it”; and descriptions of the defendant as “vicious,” worse

than an animal, and unlikely to be rehabilitated. Booth,

482 U.S. at 508.

We conclude that the Government did not violate these

proscriptions in the course of eliciting witness testimony in

the instant case. Initially, we note that Appellant

mischaracterizes the victim testimony as equating Appellant to a

terrorist or traitor, or describing Appellant’s conduct as

treasonous, mutinous, or assisting the enemy.

During the Government’s sentencing case, trial counsel

posed questions concerning witnesses’ reaction upon learning

that a fellow servicemember was the alleged perpetrator of the

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Camp Pennsylvania attack. Such questions were appropriate

because they were designed to elicit testimony about the effect

this unique bit of information had on the victims. Moreover, it

was not improper for the Government witnesses, many of whom were

also victims of the attack, to express human responses,

including feeling “betrayed,” “disbelief,” “livid,” “angry,”

“shocked,” and “pissed.”17 This testimony placed Appellant’s

crime in context by describing how his actions affected the

victims of the attacks.

Also, COL Hodges’s testimony about “fraggings” during the

Vietnam War was made in the context of describing why he, as

commander of the battalion, was particularly psychologically

shaken by Appellant’s particular attack, and we do not deem such

testimony to be improper. Similarly, we conclude that COL

Hodges’s observations about the “very worst days for

17 Appellant supports his challenge to sentencing testimony by citing the testimony of the victims’ family members in United States v. Mitchell, 502 F.3d 931, 990 (9th Cir. 2007), and DeRosa v. Workman, 679 F.3d 1196, 1240 (10th Cir. 2012). We observe that much of the contested testimony in this case was made by the victims who were reporting their own reactions to the crime, so they did not constitute family member testimony about the crime or Appellant. We recognize that trial counsel elicited testimony by civilians about their reactions upon learning that a servicemember was responsible for the attacks. To the extent that this testimony by the civilians was improper, we find no prejudice because it was brief and unlikely had any impact on the panel where the victims properly testified about their reactions upon learning that the perpetrator was a servicemember. See United States v. Davis, 609 F.3d 663, 685 (5th Cir. 2010).

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the United States Army” were not inflammatory in intent or

effect. Instead, they reflected COL Hodges’s embarrassment and

dismay that Appellant’s attack occurred in the battalion he was

commanding, and COL Hodges’s comments were directly responsive

to trial counsels’ question about how Appellant’s attack had

affected him.

We also do not consider improper trial counsel’s sentencing

argument in which he characterized Appellant as “the enemy

within the wire” and asked for the imposition of the death

penalty in order to send a message about the value of innocent

life and the value of loyalty. Trial counsel “may strike hard

blows,” but “he is not at liberty to strike foul ones.” Berger

v. United States, 295 U.S. 78, 88 (1935); see also United States

v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013). He “may ‘argue the

evidence of record, as well as all reasonable inferences fairly

derived from such evidence.’” Halpin, 71 M.J. at 479 (quoting

United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). This

includes arguments in capital cases concerning “the human cost”

of an accused’s capital crime. Payne, 501 U.S. at 827. Under

the circumstances of this case, it was not a foul blow to

characterize Appellant as the enemy within the wire given his

act of tossing grenades and shooting officers within the

confines of Camp Pennsylvania at the start of Operation Iraqi

Freedom.

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Trial counsels’ request to send a message about the value

of life, loyalty, and the bond among the band of brothers was

essentially a general deterrence argument. Trial counsel may

make such general deterrence arguments when they are not the

Government’s only argument and when the military judge properly

instructs the members about conducting an individualized

consideration of the sentence. See United States v. Lania, 9

M.J. 100, 104 (C.M.A. 1980) (stating that “general deterrence is

suitable for consideration in sentencing and for instructions”).

Trial counsels’ argument was more than one of general deterrence

because it focused on Appellant’s motivation, his acts, and

their aftermath. Also, the military judge properly instructed

the panel as to general deterrence. Therefore, there was

nothing improper in asking the members to send a general

deterrence message.

Finally, Appellant challenges trial counsel’s two

references to “weighing life”:

• “What you must decide is what a life is worth; what two lives are worth; what a military career is worth; what the use of your legs are worth; what a little boy’s life without his father is worth.”

• “Weigh his life -- that is what you’re doing. You’re weighing his life against what he did, what he caused, and what he set in motion forever.”

These comments were made in the specific context of trial

counsel’s argument that the aggravating circumstances outweighed

the mitigating circumstances. This is “entirely consistent with

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Payne’s recognition that victim-impact evidence is properly

considered to ‘counteract’ the mitigating evidence in helping

the [fact-finder] evaluate moral culpability.” United States v.

Lawrence, 735 F.3d 385, 435 (6th Cir. 2013). Also, we note that

other federal courts have held that “to the extent that [Payne]

expressed disapproval of comparative worth arguments, it did so

only with regard to victim-to-victim comparisons, not victim-to

defendant comparisons.” United States v. Fields, 483 F.3d 313,

340–41 (5th Cir. 2007) (citing Humphries v. Ozmint, 397 F.3d

206, 224 n.8 (4th Cir. 2005)). Trial counsel in the instant

case did not make victim-to-victim characterizations. We

therefore find no error in his argument.18

Even if we were to assume that trial counsels’ arguments

were improper, we conclude that Appellant has demonstrated no

prejudice. In the plain error context, we determine whether the

cumulative effect of an improper sentencing argument impacted

“the accused’s substantial rights and the fairness and integrity

of his trial.” Halpin, 71 M.J. at 480 (quoting United States v.

Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007)). This inquiry

examines “whether trial counsel’s comments, taken as a whole,

were so damaging that we cannot be confident that the appellant

18 Since neither the victim testimony nor trial counsels’ sentencing argument was improper, we reject Appellant’s related ineffective assistance of counsel claims.

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was sentenced on the basis of the evidence alone.” Id. (quoting

Erickson, 65 M.J. at 224) (original alterations and internal

punctuation omitted). This case involved many aggravating

circumstances, including Appellant’s murder of two military

officers, his use of grenades, the extensive injuries to some

officers, and the impact of the attack on the unit as it

prepared for battle. Also, the fact that trial defense counsel

did not see fit to object to the argument is “some measure” that

the argument had “minimal impact.” United States v. Gilley,

56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v.

Carpenter, 51 M.J. 393, 397 (C.A.A.F. 1999)). Accordingly, we

do not conclude that trial counsel’s argument warrants reversal.

D. Sua Sponte Disqualification of Members

Appellant challenges the military judge’s failure to sua

sponte dismiss fourteen of the fifteen panel members on implied

and/or actual bias grounds. We note that “[i]t is clear that a

military judge may excuse a member sua sponte” under R.C.M.

912(f)(4). United States v. Strand, 59 M.J. 455, 458 (C.A.A.F.

2004). That rule permits a military judge to, “in the interest

of justice, excuse a member against whom a challenge for cause

would lie” even if neither party has raised such a challenge.

See R.C.M. 912(f)(4) (2005 ed.). However, in United States v.

McFadden the majority held that although “[a] military judge has

the discretionary authority to sua sponte excuse [a] member,

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[he] has no duty to do so.” 74 M.J. 87, 90 (C.A.A.F. 2015).

Moreover, even if the military judge had such a duty, he did not

abuse his discretion in failing to sua sponte remove any of the

members for the reasons that follow.

First, we are mindful of the essential fact that, as noted

above, trial defense counsel were using the ace of hearts

strategy during this voir dire process, and we note that the

military judge had been placed on notice that Appellant was

“seeking to maximize the panel size.” Second, the military

judge had afforded trial defense counsel great leeway in

determining how they would conduct voir dire, thereby obviating

the need for the military judge to take a more active role in

the process. Third, the military judge could observe that trial

defense counsel were not impassive in the voir dire process, as

evidenced not only by their questioning of potential panel

members but also by the fact that they sought and obtained the

removal of a member on implied bias grounds, did not object to

the Government’s challenge to three other members, and explained

their opposition to the Government’s challenges to three

additional panel members.

In regard to Appellant’s challenges to the service on the

panel of specific members, we make the following observations.

Appellant first states that the military judge should have sua

sponte disqualified COL GQ and COL PM because of their friendly

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relationship with COL Hodges, a victim and witness in

Appellant’s case. However, it is not an infrequent occurrence

in the military for a panel member to know a witness in a court

martial, and without more, we have not found implied bias in

such circumstances. Cf. United States v. Ai, 49 M.J. 1, 5

(C.A.A.F. 1998) (rejecting member challenge on implied bias

grounds where member held professional relationship with

witness, candidly disclosed the relationship, and unequivocally

denied influence).19 We similarly decline to do so here.

Second, Appellant states that the military judge should

have sua sponte dismissed LTC CF and LTC DL because another

panel member, COL PM, had a supervisory relationship over them.

Once again, it is not an infrequent occurrence in the military

to have panel members who have a supervisory relationship with

another panel member. And where, as here, all of the panel

members state openly that they will not feel constrained in

performing their court-martial duties, there is an insufficient

19 Appellant cites United States v. Harris, but the member in that case not only knew two victims but also rated the victims, was aware of the crimes, and chaired a committee to reduce the crime in question on base. 13 M.J. 288, 289 (C.M.A. 1982). Neither COL GQ’s nor COL PM’s relationship with COL Hodges is nearly as close as the member’s relationship with the victims in Harris. In United States v. Leonard, 63 M.J. 398, 403 (C.A.A.F. 2006), we found implied bias where a member had a relationship “of trust” with a victim in a case in which the victim’s credibility was an issue. The record does not reflect a similar relationship of trust in this case or that COL Hodges’s credibility was at issue.

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basis for the military judge to sua sponte remove them from the

panel. United States v. Castillo, 74 M.J. 39, 43 (C.A.A.F.

2015) (“[A] senior-subordinate/rating relationship does not per

se require disqualification of a panel member.”) (quoting United

States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)).

Third, Appellant argues that the military judge should have

sua sponte dismissed LTC WT from the panel because of his

relationships with his two older brothers. One brother was the

commanding general of the 101st Airborne Division, the unit to

which Appellant and some of the victims were assigned. The

other brother worked with a victim in this case and served as

the executive officer for the senior commanding general of the

convening authority in this case. However, LTC WT stated he did

not discuss the case with his brothers or feel any pressure to

vote in any particular manner in this case. We therefore

conclude that LTC WT’s fraternal relationships did not provide a

basis for the military judge to sua sponte dismiss LTC WT. See

Strand, 59 M.J. at 459 (finding military judge did not have a

sua sponte duty to dismiss for implied bias a member who was the

son of the commander). This is particularly true here because

both Appellant and his trial defense counsel specifically stated

that they did not want to excuse LTC WT for cause.

Fourth, Appellant generally challenges a number of members

-- SFC KD, MAJ DS, LTC TG, SFC JC, CSM MH, CSM RC, and MSG PC --

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on the basis that they had an inelastic predisposition to

adjudge a particular sentence. We note, of course, that

Appellant is “entitled to have his case heard by members who are

not predisposed or committed to a particular punishment, or who

do not possess an inelastic attitude toward the punitive

outcome.” United States v. Martinez, 67 M.J. 59, 61 (C.A.A.F.

2008) (citing United States v. James, 61 M.J. 132, 138 (C.A.A.F.

2004)); see also R.C.M. 912(f)(1)(N) Discussion. However, the

record reveals that each of these panel members agreed to follow

the military judge’s instructions and to appropriately consider

a full range of punishments in this case. Therefore, the voir

dire of these individual members disclosed no basis for the

military judge to sua sponte disqualify them.

Fifth, we have reviewed LTC TG’s views on Islam20 and share

some of Appellant’s concerns about his comments during voir

dire. However, we ultimately conclude that the military judge

should not have invoked his authority under R.C.M. 912(f) to

dismiss LTC TG sua sponte because LTC TG also expressed positive

views of Muslims, describing them as “very nice” and “very

friendly people,” and more importantly, because LTC TG stated

20 When specifically asked by trial defense counsel about his views on Islam, LTC TG stated that Islam was a “male oriented religion” and a “passionate religion,” by which he meant that “sometimes you can’t think clearly and you take certain views that are selfish -- for your own selfish pleasures, self-desire instead of the good of the man.”

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openly that he would not be influenced in the course of the

trial by any of his preconceptions about Muslims generally. See

Elfayoumi, 66 M.J. at 357 (noting that question of bias is not

whether a member has particular views but whether they can put

these views aside to evaluate the case on its merits).

Sixth, Appellant avers that the military judge should have

sua sponte dismissed SFC JC from the panel because he stated

that Appellant sounded guilty. We note that a member “must be

excused when he or she ‘[h]as []formed or expressed a definite

opinion as to the guilt or innocence of the accused as to any

offense charged.” Nash, 71 M.J. at 88 (quoting R.C.M.

912(f)(1)(M)). However, in the instant case SFC JC’s voir dire

responses “dispel[led] the possibility” of bias because he

stated that his initial opinion was not definite and that he

understood Appellant was presumed innocent. See id. at 89; see

also Irvin v. Dowd, 366 U.S. 717, 723 (1961). Therefore, we

conclude that the military judge did not abuse his discretion in

failing to sua sponte dismiss SFC JC.

Seventh, Appellant contends that the military judge should

have sua sponte excused CSM MH for ignoring the military judge’s

order to avoid exposure to any pretrial publicity about

Appellant’s case. We find this challenge meritless because

trial defense counsel specifically opposed MH’s removal. We

also find that although CSM MH admitted to reading about the MP

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stabbing incident in the newspaper, he stated he could put the

event out of his mind. Therefore, the military judge did not

err in failing to sua sponte disqualify MH.

Eighth, Appellant challenges ten other panel members

because of their knowledge of the March 30 stabbing incident.

We note, however, that panel members are not automatically

disqualified simply because they have learned facts about an

accused from outside sources. Cf. Murphy v. Florida, 421 U.S.

794, 799 (1975) (noting that defendant is not presumptively

deprived of his due process rights if juror is exposed “to

information about a state defendant’s prior convictions or to

news accounts of the crime with which he is charged”). These

ten challenged panel members, along with SGM MH, generally

reported learning something along the lines of Appellant

overpowering an MP, scuffling with an MP, or stabbing an MP.

However, to the extent that the members were asked, they

uniformly expressed their ability to lay aside their knowledge

of these events in rendering a verdict in this case, which

vitiates Appellant’s claim of actual bias. Cf. Murphy, 421 U.S.

at 800-01 (noting in finding no due process violation that no

jurors “betrayed any belief in the relevance of [the

defendant’s] past to the present case”); United States v.

McVeigh, 153 F.3d 1166, 1184 (10th Cir. 1998) (finding no actual

bias despite some members learning of appellant’s confession

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from news reports where jurors indicated they could keep an open

mind).

In terms of implied bias, we find none in this instance

because trial defense counsel made no attempt to have the

members excused based on their knowledge of the stabbing

incident, trial defense counsel adequately explored their

concerns during the voir dire process, and the members stated

that they would judge the case on the merits rather than decide

the case based on this incident. Therefore, the military judge

did not abuse his discretion by declining to sua sponte dismiss

these panel members.

Ninth, and finally, Appellant challenges seven members

because of their initial negative reactions to Appellant’s

attack. Specifically, these members expressed “shock” (or a

similar emotion) upon first learning about the events at Camp

Pennsylvania. However, we note the long-standing principle that

a member “is not disqualified just because he has been exposed

to pretrial publicity or even has formulated an opinion as to

the guilt or innocence of an accused on the basis of his

exposure.” United States v. Calley, 22 C.M.A. 534, 537,

48 C.M.R. 19, 22 (1973); see also United States v. Barraza,

576 F.3d 798, 803 (8th Cir. 2009) (“An initial impression about

a case does not disqualify a [member] if the [judge] accepts the

[member’s] assurances that he or she will set aside any

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preconceived beliefs and follow the court’s instructions.”);

United States v. Iribe-Perez, 129 F.3d 1167, 1171 n.4 (10th Cir.

1997) (noting that although “noteworthy trials” will “pique the

interest of the public” and will lead “many potential jurors

[to] have formed initial impressions about the case,” a juror

will not be disqualified unless he cannot set aside the initial

impressions).

We find the members’ initial reactions to Appellant’s

crimes to be neither unreasonable nor unexpected. Cf. Irvin,

366 U.S. at 722 (noting that an “important case can be expected

to arouse the interest of the public” so most jurors will have

“formed some impression or opinion as to the merits of the

case”). And importantly, the members’ voir dire responses

indicated that their initial reactions would not impact their

view of the case or affect their decisions in the course of the

court-martial. Therefore, the members’ initial reactions did

not provide the military judge with a sua sponte basis to

dismiss the challenged members. See Calley, 22 C.M.A. at 538,

48 C.M.R. at 23 (holding after careful consideration of voir

dire that “none . . . had formed unalterable opinions about

[appellant’s] guilt from the publicity”).

E. Venue

Appellant asserts that his trial venue should have been

moved because of pervasive pretrial publicity at Fort Bragg. We

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review this challenge for an abuse of discretion. Loving,

41 M.J. at 282. Servicemembers are entitled to have their cases

“adjudged by fair and impartial court-martial panels whose

evaluation is based solely upon the evidence,” not pretrial

publicity. United States v. Simpson, 58 M.J. 368, 372 (C.A.A.F.

2003). Pretrial publicity by itself is not enough, however, for

a change of venue. Curtis, 44 M.J. at 124. Instead, an accused

is entitled to a change of venue if the “pretrial publicity

creates ‘so great a prejudice against the accused that the

accused cannot obtain a fair and impartial trial.’” Loving,

41 M.J. at 254 (quoting R.C.M. 906(b)(11) Discussion).

Appellant’s change of venue argument is meritless. The

convening authority had already moved Appellant’s case to Fort

Bragg from Fort Campbell, the headquarters for Appellant’s unit.

Further, the military judge determined that the pretrial

publicity was not inflammatory and had not saturated the

community. In addition, as the above panel bias discussion

demonstrates, the voir dire process uncovered no fixed opinions

of Appellant’s case that rose to the level of actual prejudice.

See Simpson, 58 M.J. at 372 (defining actual prejudice).

Finally, Appellant’s position that the military community’s

knowledge of his notorious crimes, standing alone, served as a

basis for a change of venue would, if adopted, essentially have

precluded the military from conducting Appellant’s court-martial

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at any military installation. The military judge therefore did

not abuse his discretion in denying Appellant’s request to

change venue.

F. Conflict of Interest

Appellant raises a number of alleged conflicts of interest

in this case, but we find only one merits discussion -- trial

defense counsels’ working relationship with one of the victims,

CPT Andras Marton, who served with the Army Judge Advocate

General’s Corps. At an Article 39(a), UCMJ, hearing, MAJ

Brookhart and CPT Coombs informed the military judge about their

“strictly professional” relationship with CPT Marton. Counsel

explained that they had tried cases against CPT Marton, but did

not have further contact with him. Appellant acknowledged that

he was aware of the possible conflict and had the right to be

represented by conflict-free counsel, but he expressly wanted

MAJ Brookhart and CPT Coombs to continue representing him due to

his familiarity with counsel and their familiarity with his

case.

An accused has the right to conflict-free legal

representation. See United States v. Lee, 66 M.J. 387, 388

(C.A.A.F. 2008); United States v. Murphy, 50 M.J. 4, 10

(C.A.A.F. 1998). However, he may waive this right so long as it

is knowing and voluntary. United States v. Davis, 3 M.J. 430,

433 n.16 (C.M.A. 1977).

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Although trial defense counsels’ relationship with a victim

raises some obvious concerns, it does not establish reversible

error because Appellant knowingly and voluntarily waived the

issue. The military judge engaged in an open discussion with

Appellant about the potential conflict. Following this

discussion, Appellant informed the military judge that he wanted

to waive any conflict or potential conflict. The post-trial

affidavits alleging a conflict do not outweigh these

considerations because the affidavits are conclusory in nature

and are contradicted by trial defense counsel’s own statements

and by the record.

G. Trial Defense Counsel Assignments

Appellant complains about unlawful command influence and

prosecutorial misconduct stemming from the Government’s control

of trial defense counsels’ assignments. Indeed, the record

shows that the lead Government trial counsel arranged for MAJ

Brookhart and CPT Coombs to be placed in positions that would

not conflict with their roles as Appellant’s trial defense

counsel. However, because Appellant never objected at trial to

trial counsels’ role in these assignments, we review the

arguments for plain error. See Halpin, 71 M.J. at 479-80.

Appellant cites no case law, and we are aware of none,

finding prosecutorial misconduct under similar facts. Although

this point is not dispositive because this could be an issue of

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first impression, it does tend to show that trial counsels’

input into the trial defense counsels’ assignments does not

plainly or obviously constitute prosecutorial misconduct. See

United States v. Tarleton, 47 M.J. 170, 172 (C.A.A.F. 1997)

(noting that “the absence of controlling precedent favorable to

appellant demonstrates that the error, if any, was not plain

error”). But importantly, in reaching our decision on

Appellant’s prosecutorial misconduct argument and also his

unlawful command influence argument, we rely heavily on the fact

that Appellant has not demonstrated any unfairness in the

proceedings based on defense counsels’ assignments. See

Simpson, 58 M.J. at 373 (noting there is no unlawful command

influence claim where there is no evidence of unfairness in the

proceedings); United States v. Meek, 44 M.J. 1, 6 (C.A.A.F.

1996) (holding that prosecutorial misconduct claim reviewed for

prejudice); see also Smith v. Phillips, 455 U.S. 209, 219 (1982)

(noting that “touchstone of due process analysis in cases of

alleged prosecutorial misconduct is the fairness of the trial”).

Indeed, the record of trial indicates that trial counsels’

actions were intended to assist Appellant by ensuring that his

counsel remained available to him. We therefore see no basis

for concluding there was prosecutorial misconduct and/or

unlawful command influence in this case.

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H. Trial Defense Counsels’ Qualifications

Appellant and amicus raise three distinct arguments about

trial defense counsels’ qualifications, but as demonstrated

below, none of them provides a basis for relief. First,

Appellant contends that trial defense counsel did not have the

training or experience necessary to effectively defend him in

this case, and challenges the CCA’s conclusions that counsel

were “well-qualified.” However, after reviewing trial defense

counsels’ extensive legal experience as summarized at the

beginning of this opinion, we reject Appellant’s argument

outright and agree with the CCA’s conclusion that counsel were

“well-qualified.”

Second, in its brief, amicus curiae advocates that we adopt

and apply to the instant case the provisions of Guideline 5.1 of

the American Bar Association (ABA) Guidelines for the

Appointment and Performance of Counsel in Death Penalty Cases.

This guideline seeks to establish minimum qualifications for

counsel in capital cases. In addressing this issue, we take

particular note of the Supreme Court’s memorable observation in

Ring v. Arizona: “[D]eath is different.” 536 U.S. 584, 606

(2002). Congress has recognized as much in civilian federal

cases by requiring the services of at least one counsel “learned

in the law applicable to capital cases.” 18 U.S.C. § 3005

(2012). Congress has even extended this requirement of “learned

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counsel” to alleged terrorists being prosecuted in military

commissions. See 10 U.S.C. § 949a(b)(2)(C)(ii) (2012). We

further note that even in the absence of congressional action,

the judge advocates general could take unilateral steps to

improve the process by which trial litigators are selected in

capital cases, and to enhance their training and qualifications.

Indeed, LTC Hansen, who we pointedly note was summarily

dismissed by Appellant, serves as an example of someone who was

particularly well qualified to litigate a capital case.

However, as an Article I court, we also note that -- absent

constitutional implications in a particular case or

congressional authorization -- it is beyond our authority to

impose the learned counsel qualification advocated by amicus.

Indeed, in the past we have similarly considered and rejected

claims that learned counsel must participate in military capital

cases. See, e.g., Gray, 51 M.J. at 54; Curtis, 44 M.J. at 127;

Loving, 41 M.J. at 300. Nonetheless, “we remain vigilant as to

the quality of representation provided servicemembers in capital

cases in the military justice system.” Gray, 51 M.J. at 54.

Finally, Appellant and amicus argue that we should adopt

the ABA Guidelines in analyzing capital defense counsels’

performance. However, we instead adhere to the Supreme Court’s

guidance that “[n]o particular set of detailed rules for

counsel’s conduct can satisfactorily take account of the variety

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of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal

defendant.” Strickland, 466 U.S. at 688-89. We therefore do

not adopt the ABA Guidelines as the ultimate standard for

capital defense representation in the military. See Pinholster,

131 S. Ct. at 1407 (“It is ‘[r]are’ that constitutionally

competent representation will require ‘any one technique or

approach.’”) (quoting Richter, 562 U.S. at 89). Instead, we

examine whether “counsel [made] objectively reasonable choices”

based on all the circumstances of a case. Van Hook, 558 U.S. at

9 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)).

I. Mitigation Evidence

Appellant contends that the panel’s consideration of

mitigation evidence was unconstitutionally limited by the

prohibition against guilty pleas in capital cases, which is

contained in Article 45(b), UCMJ. This challenge is meritless

based on our prior case law. Gray, 51 M.J. at 49; Loving,

41 M.J. at 292; United States v. Matthews, 16 M.J. 354, 362-63

(C.M.A. 1983). It is also meritless under the facts of this

case. Appellant refused to allow his counsel to submit any

offers to plead guilty, so this potential mitigation evidence

would never have been available for him to present at trial.

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J. Exclusion of Occupational Branches

Appellant is correct that the exclusion of nine

occupational branches from court-martial service in this case

pursuant to Army Regulation (AR) 27-10 would have conflicted

with the statutorily defined criteria in Article 25, UCMJ, 10

U.S.C. § 825 (2012). See United States v. Bartlett, 66 M.J.

426, 429 (C.A.A.F. 2008). We conclude, however, that here there

was no impermissible selection of panel members.

It is true that the initial convening authority was advised

that he had to select the panel in accordance with AR 27-10.

However, when the succeeding convening authority made his

selections he was informed by the acting staff judge advocate:

(1) “[Y]ou must detail those members who, in your opinion, are

best qualified for the duty by virtue of their age, education, .

. . and judicial temperament”; and (2) “You may . . . choose

anyone in your general court-martial jurisdiction for service as

a court member provided you believe they meet the Article 25

criteria listed above.” We recognize that the succeeding

convening authority adopted his predecessor’s panel pool, but

the succeeding convening authority did not act pursuant to the

improper AR 27-10 instruction, but instead acted based on proper

legal advisement in accordance with Article 25, UCMJ, criteria.

Also, even if the panel was impermissibly selected pursuant

to AR 27-10, we conclude that the Government has met its burden

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of showing any error was harmless. As the Government

demonstrates, the six circumstances which this Court identified

and relied upon in deciding Bartlett, 66 M.J. at 431, as showing

harmless error are also present here: (1) there is no evidence

that the Secretary of the Army acted with an improper motivation

in promulgating AR 27-10; (2) the convening authority followed a

facially valid regulation without an improper motive; (3) the

convening authority had authority to convene a general-court

martial; (4) Appellant was sentenced by members who were

selected by the convening authority; (5) Appellant was sentenced

by members who met the Article 25, UCMJ, criteria; and (6) the

military judge noted that the panel had female and African

American representation. We therefore find no reversible error

in the convening authority’s selection of the panel’s venire.

K. CCA Ruling on Appellate Experts

Appellant claims that the CCA erred in denying his request

for appellate assistance by mental health experts. The CCA

concluded that Appellant had failed to sufficiently show that

the expert assistance was necessary. We review this decision

for an abuse of discretion. Gray, 51 M.J. at 20. An abuse of

discretion arises if the CCA’s factual findings are clearly

erroneous or if its decision is based on a misapplication of the

law. See United States v. Taylor, 47 M.J. 322, 325 (C.A.A.F.

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1997). Neither factor applies in this instance, and we find no

abuse of discretion in the CCA’s denial of expert assistance.

L. Military Judge’s Instructions

Appellant challenges two instructions by the military

judge: (1) the sentencing instruction relating to weighing

mitigating and aggravating factors; and (2) the instruction on

reconsidering the sentence. Ordinarily, we review the adequacy

of a military judge’s instructions de novo. United States v.

MacDonald, 73 M.J. 426, 434 (C.A.A.F. 2014). However, if an

appellant fails to object to the instruction at trial, we review

for plain error. United States v. Thomas, 46 M.J. 311, 314

(C.A.A.F. 1997); R.C.M. 1005(f).

1. Sentencing

The military judge instructed the panel that to impose a

death sentence, it had to unanimously determine, in relevant

part, (1) “beyond a reasonable doubt, that the aggravating

factor existed,” and (2) that “the extenuating and mitigating

circumstances are substantially outweighed by the aggravating

circumstances.” Appellant now argues that the military judge

should have instructed the members that they had to find that

the aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt. Appellant bases this

argument on his reading of the Supreme Court’s decisions in

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v.

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Arizona, 536 U.S. 584 (2002), which stand for the proposition

that a jury must find beyond a reasonable doubt aggravating

factors that are necessary to impose the death penalty. See

Ring, 536 U.S. at 609; Apprendi, 530 U.S. at 490. However,

contrary to Appellant’s assertion, these cases do not require

any particular standard of proof with regard to weighing the

aggravating and mitigating circumstances. United States v.

Gabrion, 719 F.3d 511, 533 (6th Cir. 2013) (en banc) (joining

six other federal circuits in concluding that decision weighing

aggravating and mitigating did not have to be proven beyond a

reasonable doubt); Lockett v. Trammel, 711 F.3d 1218, 1253 (10th

Cir. 2013).

Indeed, the Supreme Court itself has indicated that

the beyond a reasonable doubt standard is unnecessary in

weighing aggravating and mitigating factors. See Kansas v.

Marsh, 548 U.S. 163, 173 (2006) (noting that state could place

burden on defendant to prove mitigating circumstances outweighed

aggravating circumstances); id. at 174 (noting that states have

“a range of discretion in imposing the death penalty, including

the manner in which aggravating and mitigating circumstances are

to be weighed”). We therefore find no error in the military

judge’s sentencing instruction.