Filed: Sep. 12, 2018
Latest Update: Mar. 03, 2020
Summary: The convening authority approved, the adjudged sentence. 1, Appellant raises a single issue on appeal: whether Appellant was denied, effective assistance of counsel at her trial., At the Governments request, this court ordered affidavits from all four of, Appellants trial defense counsel.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39284
________________________
UNITED STATES
Appellee
v.
Mia Donte T. KNOX
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 12 September 2018
________________________
Military Judge: Christina M. Jimenez.
Approved sentence: Bad-conduct discharge, confinement for 1 year, pay
a fine of $22,970.25, and reduction to E-1. Sentence adjudged 3 March
2017 by GCM convened at Wright-Patterson Air Force Base, Ohio.
For Appellant: Captain Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Mi-
chael T. Bunnell, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge DENNIS and Judge LEWIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
JOHNSON, Senior Judge:
Appellant, in accordance with her pleas pursuant to a pretrial agreement,
was found guilty by a military judge of one specification of attempted larceny
of over $500.00 on divers occasions, one specification of negligent dereliction of
duty, seven specifications of larceny of over $500.00, and 11 specifications of
United States v. Knox, No. ACM 39284
wrongfully using personal identifying information to the prejudice of good or-
der and discipline, in violation of Articles 80, 92, 121, and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 880, 892, 921, 934. A general court-
martial composed of officer members sentenced Appellant to a bad-conduct dis-
charge, confinement for one year, a fine of $22,970.25 payable to the United
States, and reduction to the grade of E-1. The convening authority approved
the adjudged sentence. 1
Appellant raises a single issue on appeal: whether Appellant was denied
effective assistance of counsel at her trial. 2 We find she was not, and we affirm
the findings and sentence. However, we also address certain discrepancies in
the post-trial process, some of which require corrections to the court-martial
order.
I. BACKGROUND
Appellant was a force management apprentice assigned to the force support
squadron at Wright-Patterson Air Force Base, Ohio. In that position, Appellant
had access to the personally identifiable information (PII) of other Airmen, in-
cluding dates of birth and social security numbers. Between approximately 21
April 2015 and 27 August 2015, Appellant used the PII of 11 other individu-
als—mostly Airmen who were acquaintances of Appellant—and other false in-
formation to apply online for unsecured personal loans from Pioneer Services,
a division of MidCountry Bank. 3 These individuals had not authorized Appel-
lant to do so and were at the time unaware their identities were being exploited
in this way. Some of these applications were successful; others were denied or
voided for various reasons. Appellant stole a total of $22,970.25 from MidCoun-
try Bank and attempted to steal $20,500.00 more. Appellant did not intend to
repay the loans and, as of the time of her court-martial, had made no repay-
ment or restitution to MidCountry Bank.
Eventually, the bank conducted an investigation into Appellant’s fraudu-
lent activities, which led them to her. The Air Force Office of Special Investi-
gations (AFOSI) became aware of the investigation and secured a search au-
thorization for Appellant’s on-base residence. There, in a duffel bag, AFOSI
1The pretrial agreement provided the convening authority would not approve confine-
ment in excess of 36 months and thus did not affect the adjudged sentence.
2Appellant personally raises this issue pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
3 In addition to her duty-related access to PII, Appellant gained access to the PII of
certain individuals through personal contact outside of her military duties.
2
United States v. Knox, No. ACM 39284
agents discovered official documents Appellant had wrongfully removed from
her workplace containing the PII of an additional 12 Air Force members.
Appellant was represented by Major (Maj) RVM and Maj SH 4 at the initial
session of her court-martial, an arraignment and motions hearing held on 1–2
November 2016. Thereafter, Appellant released Maj RVM and retained two
civilian defense counsel, KS and GG. Maj SH also continued to represent Ap-
pellant. The new defense team negotiated a pretrial agreement with the con-
vening authority, in accordance with which Appellant pleaded guilty and was
sentenced as described above in proceedings conducted from 28 February 2017
until 3 March 2017.
II. DISCUSSION
A. Ineffective Assistance of Counsel
1. Law
The Sixth Amendment guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington,
466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic,
466 U.S. 648, 658 (1984).
See
Gilley, 56 M.J. at 124 (citing United States v. Grigoruk,
52 M.J. 312, 315
(C.A.A.F. 2000)). Accordingly, we “will not second-guess the strategic or tacti-
cal decisions made at trial by defense counsel.” United States v. Mazza,
67 M.J.
470, 475 (C.A.A.F. 2009) (internal quotation marks and citation omitted). We
review allegations of ineffective assistance de novo. United States v. Gooch,
69
M.J. 353, 362 (C.A.A.F. 2011) (citing
Mazza, 67 M.J. at 474).
We utilize the following three-part test to determine whether the presump-
tion of competence has been overcome:
1. Are [A]ppellant’s allegations true; if so, “is there a reasonable
explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s level of advo-
cacy “fall measurably below the performance . . . [ordinarily ex-
pected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable prob-
ability that, absent the errors,” there would have been a differ-
ent result?
4 Maj SH was a captain at the time and throughout Appellant’s court-martial.
3
United States v. Knox, No. ACM 39284
Gooch, 69 M.J. at 362 (second alteration in original) (quoting United States v.
Polk,
32 M.J. 150, 153 (C.M.A. 1991)).
2. Analysis
Appellant submitted a short declaration expressing her dissatisfaction with
her “legal team,” without naming or identifying any particular counsel. She
states they added to her “stress” and to her sense of being “very overwhelmed”
at her trial. She continues, “I had the feeling as if they were telling more than
asking me what I wanted . . . . I noticed information and issues I was sharing
to them were not being addressed [or] mentioned ever.” However, Appellant
specifically describes only one such issue:
Early on I informed my lawyers of my now ex husband[’s] role;
however it became on[e] of those things they tried to brush off,
but I kept pushing the issue. They never attempted to locate my
ex and gave me the explanation of, “it isn[’]t in [sic] a good idea
since he could paint you in a bad way.” I take full responsibility
100% but I left that court feeling as if the most important and
major part of my case was ignored.
At the Government’s request, this court ordered affidavits from all four of
Appellant’s trial defense counsel. Accordingly, all four counsel signed declara-
tions responding to Appellant’s allegation of ineffective assistance. Their state-
ments are generally consistent with one another. Trial defense counsel were
aware Appellant’s ex-husband moved out of the shared residence in August
2015 and the couple went through an acrimonious divorce in 2016 before Ap-
pellant’s trial. Maj RVM and Maj SH unsuccessfully attempted to contact Ap-
pellant’s ex-husband via a contact number included in the AFOSI report of in-
vestigation (ROI). Appellant either could not or would not provide better con-
tact information for him. However, trial defense counsel considered this no
great loss because they had no reason to believe he would have been of any
assistance at trial. There was no indication in the ROI or evidence that he was
directly involved in Appellant’s crimes. He was apparently on poor terms with
Appellant and there was no reason to believe he would be motivated to assist
her. In fact, information in the ROI suggested he may have damaging infor-
mation about additional uncharged misconduct by Appellant. For these rea-
sons, trial defense counsel did not seek the Government’s assistance in locating
the ex-husband. As KS put it, Appellant’s defense team “did not want him an-
ywhere near this court-martial.”
To the extent there is a contradiction between Appellant’s declaration and
those of her trial defense counsel—specifically, Appellant’s claim that her
counsel “never attempted” to locate her ex-husband—we have considered
4
United States v. Knox, No. ACM 39284
whether a post-trial evidentiary hearing is required to resolve a factual dis-
pute. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997); United States
v. DuBay,
37 C.M.R. 411, 413 (C.M.A. 1967). We are convinced such a hearing
is unnecessary. The appellate filings and the record as a whole “compellingly
demonstrate” Maj RVM and Maj SH attempted to contact Appellant’s ex-hus-
band with the limited information they had available. See
Ginn, 47 M.J. at 248.
More importantly, even if we resolved this contradiction in Appellant’s favor,
her allegations would not result in relief. See
id.
Applying the test for ineffective assistance of counsel articulated in Polk
and Gooch, we find there is a reasonable explanation for trial defense counsel’s
failure to contact Appellant’s ex-husband. First, they attempted to do so but
were unable with the limited information available to them. Second, their de-
cision not to request the Government’s assistance in locating him was reason-
able in light of the indications that his involvement in the case would be of no
substantial help to Appellant, and in fact could lead the Government to addi-
tional damaging information. Therefore, it follows that trial defense counsel’s
performance did not fall measurably below that ordinarily to be expected of
defense attorneys. See
Gooch, 69 M.J. at 362.
Finally, Appellant has entirely failed to demonstrate that absent the al-
leged error the result of her court-martial would have been more favorable. See
id. Appellant does not explain what her ex-husband’s “role” in fact was or how
his testimony or involvement would have influenced her trial. At trial, Appel-
lant’s guilty plea colloquy with the military judge and her unsworn statement
to the court members contained only very vague references to a “bad relation-
ship” and a “horrible situation,” which shed no light on how her ex-husband’s
involvement would have been helpful. Accordingly, we find no basis to conclude
Appellant was denied effective assistance of counsel.
B. Post-Trial Discrepancies
Although not raised by Appellant, we address several discrepancies in the
post-trial processing of Appellant’s case. First, Rule for Courts-Martial
(R.C.M.) 1107(f)(4)(C) requires the convening authority’s action on a court-
martial sentence to “designate the place of confinement” if the convening au-
thority orders any sentence of confinement into execution. Customarily in the
Air Force, the action in such a case where the accused has not yet completed
the term of confinement would include the direction that the “Air Force Cor-
rections System is designated for the purpose of confinement and the confine-
ment will be served therein” or elsewhere as directed by the Air Force Security
Forces Center, or words to that effect. See Manual for Courts-Martial, United
States (2016 ed.), App. 16, at A16–1; Air Force Instruction 51-201, Administra-
tion of Military Justice, Figure A8.13 (8 Dec. 2017). However, in Appellant’s
5
United States v. Knox, No. ACM 39284
case the convening authority’s action states: “The Air Force Corrections Sys-
tem is designed for the purpose of confinement, and the confinement will be
served therein or elsewhere as directed by Headquarters, Air Force Security
Forces Center, Corrections Division.” (Emphasis added.) Although unorthodox,
we find this language compliant with R.C.M. 1107(f)(4)(C), notwithstanding
the absence of the term “designate.”
Second, the report of result of trial (RRT) attached to the staff judge advo-
cate’s recommendation to the convening authority omits certain language from
four of the specifications. Specifically, the term “on or about” is omitted from a
portion of the date range alleged in these specifications. 5 We find no colorable
showing of possible prejudice from the error, and therefore no basis for relief.
See United States v. Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005). However,
these omissions are repeated in the court-martial order. 6
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED. 7
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
5The specifications in question are Specification 1 of Charge I and Specifications 1, 2,
and 5 of Charge IV.
6The court-martial order also repeats the RRT’s misspelling of “MidCountry Bank” in
Charge III, Specification 7.
7 We direct the publication of a corrected court-martial order to remedy the errors iden-
tified in this opinion.
6
