U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201500039
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.
                       PAUL E. COOPER
                Yeoman Second Class (E-5), U.S. Navy
                                 Appellant
                          _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary
       Military Judge: Captain Robert Blazewick, JAGC, USN.
DuBay Hearing Judge: Commander Marcus N. Fulton, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast, Naval
                   Air Station, Jacksonville, FL.
 Staff Judge Advocate’s Recommendation: Commander N.O. Evans,
                            JAGC, USN.
 For Appellant: Commander Donald R. Ostrom, JAGC, USN; Major
Benjamin A. Robles, USMC; Lieutenant Ryan W. Aikin, JAGC, USN.
  For Appellee: Lieutenant Commander Justin Henderson, JAGC,
            USN; Lieutenant James Belforti, JAGC, USN.
                        _________________________
                           Decided 7 March 2018
                            _________________________
    Before MARKS, JONES, and WOODARD, Appellate Military Judges
                            _________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
   MARKS, Senior Judge:
   A general court-martial composed of officer and enlisted members
convicted the appellant, contrary to his pleas, of three specifications of sexual
assault and one specification of abusive sexual contact, in violation of Article
                     United States v. Cooper, No. 201500039


120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012 ed.). 1
The members sentenced the appellant to five years’ confinement, forfeiture of
all pay and allowances, reduction to pay grade E-1, and a dishonorable
discharge. The convening authority (CA) approved the sentence and, with the
exception of the punitive discharge, ordered it executed.
    The appellant alleges ten assignments of error (AOE), four of which
involve ineffective assistance of counsel: (1) ineffective assistance of counsel
because trial defense counsel did not submit the appellant’s three requests
for individual military counsel (IMC), did not challenge the testimony of the
government’s key expert witness, and did not rebut that testimony with their
own expert witness; (2) legal and factual insufficiency; (3) the military judge’s
erroneous exclusion of hearsay evidence offered to prove the appellant’s
innocent state of mind; (4) deprivation of the appellant’s Sixth Amendment
right to counsel of choice and statutory right to IMC when trial defense
counsel failed to submit the appellant’s IMC requests; (5) improper admission
of testimony in violation of the appellant’s Sixth Amendment right to
confront witnesses against him; (6) unlawful command influence by the CA
for directing the Article 32, UCMJ, investigating officer not to consider any
evidence under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 412; (7) violation
of the Fifth Amendment and Article 32, UCMJ, for referral of charges to a
general court-martial after a wholly deficient Article 32, UCMJ,
investigation; (8) ineffective assistance of counsel for failing to move to
suppress a written statement seized from the appellant’s backpack; (9)
ineffectiveness for failure to question the victim about inconsistencies in her
testimony; and (10) ineffective assistance of counsel for cumulative error.2
   Finding merit in AOE 4, we set aside the findings and sentence.
Disagreeing with AOE 2, we find the evidence legally and factually sufficient
and authorize remand of the case with authority for a rehearing in our
decretal paragraph. Finally, we find no merit in AOEs 6 and 7, which address
the Article 32, UCMJ, hearing and the referral of charges.3
                                  I. BACKGROUND
   The appellant, a Navy Reservist, was mobilized in support of Joint Task
Force (JTF) Guantanamo Bay, Cuba, in August 2013. The afternoon of 27
October 2013, the appellant met Petty Officer Second Class (PO2) J.P. at a
chapel service and, afterward, they returned to the trailer where he was


   1  The appellant was acquitted of a single specification of sexual harassment, a
violation of Article 92, UCMJ, 10 U.S.C. § 892 (2012 ed.).
   2 AOEs 4-7, 9, and 10 are raised pursuant to United States v. Grostefon, 

(C.M.A. 1982).
   3   Setting aside the findings and sentence moots remaining AOEs 1, 3, 5, and 8-10.

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                  United States v. Cooper, No. 201500039


billeted. The appellant claimed they engaged in consensual sexual
intercourse and oral sex, but PO2 J.P. reported a sexual assault the next day.
    Early in November 2013, the appellant learned he was under
investigation for sexual assault. As he was assigned to duties in the office of
the staff judge advocate for JTF Guantanamo Bay, the appellant worked for
and in close proximity to a number of judge advocates from different branches
of the armed forces. Sometime in late 2013, Captain (CPT) T.N., California
Army National Guard, arrived and became the appellant’s direct supervisor.
In addition to their daily interactions in the office, CPT T.N. and the
appellant formed an attorney-client relationship for legal assistance matters.
    Charges were preferred against the appellant on 24 April 2014, and
Lieutenant (LT) J.B., United States Navy, was detailed as his defense
counsel. The appellant first spoke to LT J.B. by telephone on 30 April 2014,
as she was stationed near Jacksonville, Florida. LT J.B. represented the
appellant at an Article 32, UCMJ, investigative hearing in Florida on 28 May
2014. After the Article 32, UCMJ, hearing, the appellant decided to exercise
his statutory right to request representation by IMC.
    The appellant identified three attorneys as potential IMC. His first choice
was Commander (CDR) G.M., United States Navy Reserve. The appellant
discussed his desire to request CDR G.M. with LT J.B. After conducting some
research, LT J.B. learned that CDR G.M. would be unavailable as an IMC
based on his pending transition off of active duty. The appellant agreed not to
pursue CDR G.M. further. Still concerned about his legal representation at
his upcoming court-martial, the appellant identified Captain (Capt) J.N.,
United States Marine Corps as his choice for IMC. Capt J.N. had left
Guantanamo Bay for a position as a trial counsel; thus, LT J.B. informed the
appellant that Capt J.N. too was unavailable. At some point between
identifying CDR G.M. and Capt J.N., the appellant also identified CPT T.N.
(California Army National Guard), his supervisor and legal assistance
counsel, as an IMC. He understood from LT J.B. that CPT T.N. was also
unavailable. LT J.B. and an assistant detailed defense counsel, Lieutenant
Commander (LCDR) N.G., ultimately defended the appellant at court-
martial.
    Following his conviction at court-martial and the start of post-trial
confinement, the appellant contacted CPT T.N., since demobilized, in his
civilian capacity for assistance with post-trial matters. In the course of
reviewing the case file requested and received from LT J.B. and LCDR N.G.,
CPT T.N. discovered that LT J.B. had not submitted any IMC requests on the
appellant’s behalf. While there were records of LT J.B.’s inquiries into the
availability of CDR G.M. and Capt J.N., there was nothing regarding CPT
T.N.

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                     United States v. Cooper, No. 201500039


   On appeal, this court ordered the production of affidavits from trial
defense counsel responding to the allegations of ineffective assistance of
counsel and failure to request IMC. In her responsive post-trial affidavit, LT
J.B. denied that the appellant ever broached requesting CPT T.N. as an IMC.
Presented with these conflicting claims, this court ordered a hearing
pursuant to United States v. DuBay, 

(C.M.A. 1968).4 The
DuBay judge concluded that the appellant had asked LT J.B. to request CPT
T.N. as an IMC, and CPT T.N. would have been reasonably available to
represent the appellant at his court-martial.
                                     II. DISCUSSION
A. Deprivation of the statutory right to IMC
    The appellant alleges that he was deprived of his Sixth Amendment right
to counsel of choice and his statutory right to IMC when his initial trial
defense counsel (TDC), LT J.B., failed to submit his requests for IMC.
   1. Sixth Amendment right to assistance of counsel
    “In all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. The Sixth
Amendment right to assistance of counsel has been interpreted not just as a
single right but as a source of multiple rights criminal defendants and
military accused enjoy with regard to legal representation. From case law,
our superior court has named four elements of this constitutional right to
assistance of counsel, “as applied in the civilian context.” United States v. Lee,

, 388 (C.A.A.F. 2008). First is “‘the right of a defendant who does
not require appointed counsel to choose who will represent him.’” 

States v. Gonzalez-Lopez, 

, 144 (2006)). Second is the
right to “‘reasonably effective assistance’” from counsel. 

v. Washington, 

, 687 (1984)). Third is the “‘right to
representation that is free from conflicts of interest.’” 

v.
Georgia, 

, 271 (1981)). The fourth and final element is the
determination that “where assistance of counsel has been denied entirely,
‘the likelihood that the verdict is unreliable is so high that a case-by-case
inquiry is unnecessary.’” 

v. Taylor, 

, 166
(2001) (additional citation omitted)).
   a. Effective assistance of counsel and its denial
    The distinctions among these elements of the Sixth Amendment right to
assistance of counsel manifest even more clearly when analyzing whether one
of them has been denied. What constitutes a deprivation of the right? Must
an act or omission result in adversity or impairment, and must that

   4   Appellate Exhibit (AE) I-A.

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                   United States v. Cooper, No. 201500039


impairment amount to some articulable prejudice? The Supreme Court
established the seminal test for gauging deprivation of the right to effective
assistance of counsel in Strickland. An appellant alleging ineffective
assistance of counsel must show “that counsel’s representation fell below an
objective standard of reasonableness” and that “any deficiencies in counsel’s
performance must be prejudicial to the defense[.]”466 U.S. at 688, 692. Before
announcing the extent of prejudice required for ineffectiveness, the
Strickland Court summarized the standards applied in other contexts. “In
certain Sixth Amendment contexts, prejudice is presumed. Actual or
constructive denial of the assistance of counsel altogether is legally presumed
to result in prejudice.” 

where legal representation is “burdened
by an actual conflict of interest,” an ineffectiveness claim “warrants a similar,
though more limited, presumption of prejudice.” 

v. Sullivan,

, 345-50 (1980) (holding that “a defendant who shows that a
conflict of interest actually affected the adequacy of his representation need
not demonstrate prejudice in order to obtain relief”) (citation omitted)); see
also United States v. Hale, 

, 729 (N-M. Ct. Crim. App. 2017)
(requiring no further showing of prejudice when the appellant’s counsel
suffered an actual conflict of interest and the conflict adversely affected the
appellant’s representation), aff’d, __ M.J. __, 2017 CAAF LEXIS 1166
(C.A.A.F. Dec. 20, 2017) .
    For claims of ineffective assistance of counsel other than conflicts of
interest, the Strickland Court required the appellant to show something
more. Demonstrating that counsel error “impaired the presentation of the
defense” was 

(internal quotation marks and
citation omitted). “[I]t provides no way of deciding what impairments are
sufficiently serious to warrant setting aside the outcome of the proceeding.”

turned to tests for the materiality of an impairment, such as
“materiality of exculpatory information not disclosed to the defense by the
prosecution . . . and in the test for materiality of testimony made unavailable
to the defense by the Government deportation of a witness[.]” 

(citing United States v. Agurs, 

, 104, 112-13 (1976); United States
v. Valenzuela-Bernal, 

, 872-74 (1982)). To filter out all but
material impairments to representation, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” 

the standard of prejudice required to find that
counsel’s error deprived the defendant of the right to effective legal
representation and necessitated setting aside the conviction.




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                  United States v. Cooper, No. 201500039


   b. United States v. Gonzalez-Lopez and denial of counsel of choice
   More than twenty years later, the Supreme Court addressed the right to
counsel of choice, the Sixth Amendment element missing from Strickland, in

. The Court made clear that the elements of
the Sixth Amendment right to assistance of counsel were not amenable to a
one-size-fits-all approach.
    At the trial level, the District Court had barred Gonzalez-Lopez’s civilian
counsel of choice from participating in his defense, joining him and his
substitute counsel at counsel table, or contacting them. 

The
debarment arose from the desired counsel’s alleged violations of rules of court
and professional conduct. 

On appeal, the Eighth Circuit Court
of Appeals ruled that the District Court had misinterpreted the relevant rule
of professional conduct, vacated Gonzalez-Lopez’s conviction for violation of
his “Sixth Amendment right to paid counsel of his choosing,” and held that
the “violation was not subject to harmless-error review.” 

(citations omitted).
    The Supreme Court affirmed, dismissing the government’s argument that
Strickland controlled. The right to effective assistance of counsel was derived
from the Due Process Clause of the Constitution and the Court’s “perception
that representation by counsel ‘is critical to the ability of the adversarial
system to produce just results.’” 

(quoting 

). “The right to select counsel of one’s choice, by contrast, has never been
derived from the Sixth Amendment’s purpose of ensuring a fair trial. It has
been regarded as the root meaning of the constitutional guarantee.” 

-48 (citing Wheat v. United States, 

, 159 (1988); Andersen v.
Treat, 

(1898) (additional citations omitted)) (emphasis added).
“Deprivation of the right is ‘complete’ when the defendant is erroneously
prevented from being represented by the lawyer he wants, regardless of the
quality of the representation he received.” 

Consequently, the right
to choice of counsel is not conditioned upon the effectiveness of substitute
counsel. “Where the right to be assisted by counsel of one’s choice is wrongly
denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice
inquiry to establish a Sixth Amendment violation.” 

went on to explain why deprivation of the right to counsel of
choice, unlike other elements of the Sixth Amendment, constituted a
“structural defect” and needed no demonstration of prejudice. 

of constitutional dimension were “‘trial error[s;]’” they “‘occurred during
presentation of the case to the jury’ and their effect may ‘be quantitatively
assessed in the context of other evidence presented in order to determine
whether [they were] harmless beyond a reasonable doubt.’” 

v. Fulminante, 

, 307-08 (1991)). On the other hand,

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                  United States v. Cooper, No. 201500039


“‘structural defects . . . defy analysis by harmless error standards because
they affect the framework within which the trial proceeds,’ and are not
‘simply an error in the trial process itself.’” 

(quoting

) (internal quotations and alterations
omitted)). With “little trouble,” the Court concluded “that erroneous
deprivation of the right to counsel of choice, ‘with consequences that are
necessarily unquantifiable and indeterminate, unquestionably qualifies as
structural error.’” 

(quoting Sullivan v. Louisiana, 

, 282
(1993) (internal quotation marks omitted)). “Harmless-error analysis in such
a context would be a speculative inquiry into what might have occurred in an
alternate universe.” 

summed up its comparison of ineffective
assistance of counsel and denial of counsel of choice by declaring that the
“difficulties of conducting the two assessments of prejudice are not remotely
comparable.” 

    The Court acknowledged that the Sixth Amendment right to counsel of
choice is not unlimited. A civilian defendant who requires appointment of
counsel because of indigence does not also enjoy the right to choice of counsel.

(citing 

; Caplin & Drysdale v. United States,

, 624, 626 (1989)). Nor is there a right to representation by
someone who is not a member of the bar or who is burdened by a conflict the
client cannot waive. 

Courts also have the right to balance the right
to choice of counsel against fairness, the enforcement of rules or standards of
practice, and maintenance of a calendar. 

Gonzalez-Lopez
Court distinguished a court’s discretion to limit who appears before it from a
denial of choice of counsel. 

civilian counterparts, military accused have the right to hire
counsel of their choice, within similar limits and at no expense to the United
States. But this case deals not with that right but rather the statutory right
to IMC unique to the military justice system. We decline the appellant’s
invitation to include the right to IMC within the Sixth Amendment right to
counsel and, for purposes of this opinion, consider the right to be rooted only
in statute.
   2. Statutory right to IMC at courts-martial
    When facing a general or special court-martial, service members’
statutory rights to counsel are “broader than those available to their civilian
counterparts.” United States v. Spriggs, 

, 237 (C.A.A.F. 2000).
Regardless of indigence, a military accused has the right to representation by
detailed military counsel plus the right to hire civilian counsel at no expense
to the government and “to select a particular military counsel in limited
circumstances[,]” the right to IMC. 

The justification for such
expansive rights is “the unique nature of military life, in which members are

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                    United States v. Cooper, No. 201500039


subject to worldwide assignment and involuntary deployment under
circumstances when civilian counsel are not readily available.” 

accused’s right to choice of reasonably available IMC goes
back more than a century—before the enactment of the UCMJ and the right
to representation by an attorney before courts-martial. United States v.
Gnibus, 

, 5-7 (C.M.A. 1985). In 1916, Congress amended Article 17
of the Articles of War to grant a military accused “the right to be represented
before the court by counsel of his own selection for his defense, if such counsel
be reasonably available[.]” 64 P.L. 242, § 3, 39 Stat. 619, 653, 64 Cong. Ch.
418 (1916). Four years later, Article 17 was amended to incorporate the right
to appointment of defense counsel, but the accused retained “the right to be
represented before the court by counsel of his own selection, civil counsel if he
so provides, or military if such counsel be reasonably available, otherwise by
the defense counsel duly appointed for the court[.]” 66 P.L. 242, §52, 41 Stat.
759, 790, 66 Cong. Ch. 227 (1920). When Congress enacted the UCMJ in
1950, the new Article 38, UCMJ, afforded an accused “the right to be
represented in his defense before a general or special court-martial by civilian
counsel if provided by him, or by military counsel of his own selection if
reasonably available, or by the defense counsel duly appointed pursuant to
Article 27.”5 Art. 38, UCMJ (1951). Pending the appellant’s court-martial, his
right to IMC, as well as his right to counsel at courts-martial generally, still
resided in Article 38(b), UCMJ:
       (1) The accused has the right to be represented in his defense
           before a general or special court-martial or at an
           investigation under section 832 of this title ([A]rticle 32) as
           provided in this subsection.
       (2) The accused may be represented by civilian counsel if
           provided by him.
       (3) The accused may be represented—
           (A) by military counsel detailed under section 827 of this
               title ([A]rticle 27); or
           (B) by military counsel of his own selection if that counsel is
               reasonably available (as determined under regulations
               prescribed under paragraph (7)).
10 U.S.C. § 838(b) (2012 ed.) (emphasis added).



   5  Article 27, UCMJ, addresses the appointment or detail of judge advocates as
trial and defense counsel and directs their minimum qualifications and certification
for competence.

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                  United States v. Cooper, No. 201500039


   Article 38, UCMJ, is further implemented in RULE FOR COURTS-MARTIAL
(R.C.M.) 506, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.):
       (a) In general. The accused has the right to be represented
           before a general or special court-martial by civilian counsel
           if provided at no expense to the Government, and either by
           the military counsel detailed under Article 27 or military
           counsel of the accused’s own selection, if reasonably
           available. The accused is not entitled to be represented by
           more than one military counsel.
R.C.M. 506(b) delineates those who are not reasonably available to serve as
IMC by virtue of their duties or positions, such as trial counsel. Service
secretaries may further define availability based on other factors; however,
       [a] person who is a member of an armed force different from
       that of which the accused is a member shall be reasonably
       available to serve as [IMC] for such accused to the same extent
       as that person is available to serve as [IMC] for an accused in
       the same armed forces as the person requested.
R.C.M. 506(b)(1). The procedures for requesting an IMC are also subject to
secretarial prescription, but requests shall be made by an accused or detailed
defense counsel and routed through trial counsel to the CA. R.C.M. 506(b)(2).
In the Navy, “[d]efense counsel shall ensure IMC requests are forwarded per
R.C.M. 506(b) . . . . All IMC requests will be submitted in writing. IMC
requests for courts-martial will be routed via the trial counsel to the [CA].”6
CAs shall deny the request “[i]f the requested person is among those not
reasonably available under subsection (b)(1) of this rule or under regulations
of the Secretary concerned[.]” R.C.M. 506(b)(2). But if the accused claims to
have an attorney-client relationship with the requested counsel regarding a
charge in question, or if the requested counsel “is not among those so listed as
not reasonably available, the [CA] shall forward the request to the
commander . . . to which the requested person is assigned.” 

counsel’s command “shall make an administrative determination whether the
requested person is reasonably available in accordance with the procedure
prescribed by the Secretary concerned.” 

for IMC must pass through multiple hands, creating multiple
opportunities for failure. Having explored how the Supreme Court assesses
deprivation of the Sixth Amendment right to choice of counsel, we turn now
to how military courts have assessed deprivation of our statutory right to
IMC.

   6 Commander Naval Legal Service Command Instruction (CNLSCINST) 5800.1G
§ 1006a (24 Feb 2013).

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                  United States v. Cooper, No. 201500039


   3. Deprivation of the right to IMC and presumptive prejudice
    Long before the Supreme Court found denial of the Sixth Amendment
right to choice of counsel presumptively prejudicial in Gonzalez-Lopez, our
superior court reached a similar conclusion in response to denial of the right
to request IMC. In United States v. Hartfield, a staff legal officer improperly
denied Chief Petty Officer Hartfield’s request for “individual counsel,”
determining the requested counsel was unavailable and failing to refer the
request to the CA. 

, 68 (C.M.A. 1967). Without demonstration of
harm or prejudice, the Court of Military Appeals (C.M.A.) found “the failure
to refer accused’s request for counsel to the [CA] for action to have been
prejudicially erroneous.” 

v. United States, 

, 76
(1942), our superior court concluded that “[t]he right to have the assistance of
counsel is too fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its denial.” 

true that cases like Cuyler and Strickland have superseded Glasser, but we
highlight the Hartfield court’s adoption of Glasser for a different reason.
Albeit tacitly, the C.M.A. equated the statutory right to IMC to the
constitutional right to assistance of counsel and held that the standard of
prejudice protecting the constitutional right extended to the statutory right.
    Twenty years later, the C.M.A. explicitly held that deprivation of the
statutory right to IMC was presumptively prejudicial. In United States v.
Beatty, our superior court found that a military judge erred when he ruled
that an accused was not entitled to request an additional IMC when facing
new charges at a rehearing. 

, 316 (C.M.A. 1987). Seaman Recruit
Beatty’s original IMC “performed ably at trial. However, deprivation of a
statutory right to request counsel cannot be analyzed in terms of specific
prejudice but, instead, mandates automatic reversal.” 

    In United States v. Allred, this court presumed prejudice in a case that
combined severance of the attorney-client relationship without good cause
and improper denial of an IMC request. 

, 801 (N-M. Ct. Crim.
App. 1999). Private (Pvt) Allred formed an attorney-client relationship with
Capt A. in anticipation of an administrative separation proceeding and later
a court-martial. 

When Pvt Allred was evacuated to the United
States for a medical emergency and subsequent treatment, the court-martial
charges were withdrawn and dismissed. 

this withdrawal and
dismissal and Capt A.’s pending transfer to a new duty station, Capt A.’s
chain of command deemed his attorney-client relationship with Pvt Allred
terminated. 

were re-preferred against Pvt Allred, he
requested Capt A. as his IMC. 

Finding no existing attorney-client
relationship between Capt A. and Pvt Allred, Capt A.’s new commander
denied the IMC request based on Capt A.’s workload and distance from the
site of trial. 

This court subsequently found error in the failure to

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                    United States v. Cooper, No. 201500039


recognize a continuing attorney-client relationship between Capt A. and Pvt
Allred and abuse of discretion in denial of Pvt Allred’s IMC request. 

of Pvt Allred’s attorney-client relationship with
Capt A., “without good cause and without his consent,” resulted in “denial of
his statutory right to counsel of his own selection.” 

59(a),
UCMJ—our authority to reverse “on the ground of an error that materially
prejudices the substantial rights of an accused”—this court presumed
prejudice “arising from the denial of” the right to IMC. 

case law regarding deprivation of these constitutional and
statutory rights to counsel in mind, we turn to the DuBay judge’s findings of
fact and conclusions of law with regard to deprivation of the appellant’s
statutory right to IMC.
   4. Deprivation of the appellant’s right to IMC
   In his post-trial clemency submission and on appeal, the appellant has
averred deprivation of his right to counsel under the Sixth Amendment and
Article 38, UCMJ, stemming from LT J.B.’s failure to submit three IMC
requests. We decline to characterize the right to IMC as constitutional and
limit our analysis to potential deprivation of a statutory right.
   At the request of the government, this court ordered affidavits from the
appellant’s two TDC addressing, inter alia, their “alleged failure to submit
requests for [IMC] on the appellant’s behalf.”7 Both trial defense counsel
submitted affidavits rebutting this allegation.8 Nevertheless, one factual
dispute remained—whether the appellant informed his trial defense counsel
that he wanted to request CPT T.N. as an IMC.9 Seeking additional facts to
resolve this dispute, we ordered a hearing pursuant to United States v. Ginn,

, 248 (C.A.A.F. 1997) and United States v. DuBay, 

(C.M.A. 1967).
   We begin with the DuBay judge’s findings of fact, which we review “under
a clearly erroneous standard[.]” United States v. Wean, 

, 463
(C.A.A.F. 1997). We also “necessarily defer to the DuBay judge’s
determinations of credibility in this regard.” 

States v.
Williams, 

, 357 (C.M.A. 1993); United States v. White, 

, 287 (C.M.A. 1993)).


   7   NMCCA Order of 14 Oct 2015 at 1.
   8Appellee’s Response of 28 Oct 2015, Appendix 2 at 2; Appellee’s Corrected
Response of 30 Oct 2015, Appendix 1 at 2-9.
   9 Lead trial defense counsel LT J.B. wrote, “[a]t no time prior to contacting CPT
[T.N.] did YN2 Cooper ask me to have him as IMC.” Appellee’s Corrected Response,
Appendix 1 at 7.

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                       United States v. Cooper, No. 201500039


   a. Did the appellant request CPT T.N. as an IMC?
    The first question posed to the DuBay judge was, “[d]id the appellant ask
his trial defense counsel to request [CPT T.N.], California Army National
Guard, as an [IMC]?” The DuBay judge answered in the affirmative, making
the findings of fact below. We agree with the factual support the DuBay judge
cited in the record and conclude that his findings were not clearly erroneous.
Thus we adopt the findings below, adding our own numbering scheme.
         1. The [sexual assault] allegations came to the appellant’s
         attention around 1 November 2013. The appellant went to
         [Region Legal Service Office] Southeast’s office at Guantanamo
         Bay to seek defense services. A service member at the office,
         however, told him that he was not eligible for defense services.
         [The DuBay judge] credited the appellant’s uncontradicted
         account: “I was trying to get an attorney and trying to get help
         with the case. They [the Navy legal office] couldn’t provide any
         assist—the only thing they could really tell me is that, you
         know, an attorney will be provided to me if charges are
         preferred.”10
    The record provides additional relevant facts. A Naval Criminal
Investigative Service (NCIS) agent attempted to interrogate the appellant on
6 November 2013. The appellant acknowledged his Article 31(b), UCMJ,
rights and “indicated he did not wish to answer questions and was going to
seek legal counsel.”11 The appellant went to Region Legal Service Office
Southeast’s (RLSO SE) Guantanamo Bay Detachment in pursuit of legal
counsel. RLSO SE was responsible for providing prosecution and command
services to tenant commands and legal assistance to Sailors for civil, not
criminal, legal matters. There was no judge advocate in Guantanamo Bay
authorized to consult with Sailors on criminal matters. When the appellant
requested legal advice for a criminal matter, such as being the subject of an
active criminal investigation, RLSO SE personnel should have connected him
to Defense Service Office Southeast (DSO SE) in Jacksonville, Florida, and
facilitated a private telephonic consultation with a military defense
attorney.12 For unknown reasons, that did not happen in this case.



    10 DuBay Judge’s Findings of Fact and Conclusions of Law, at 2 (quoting DuBay

record at 66).
   11   AE IV at 11.
   12  CNLSCINST 5800.1G §§ 0602 and 1312.b provide for delivery of legal services,
including consultation with defense counsel, to Navy personnel serving in remote
locations.

                                        12
                    United States v. Cooper, No. 201500039


         2. CPT [T.N.] worked closely with the appellant within the
         [Freedom of Information Act] office. He also provided legal
         assistance to the appellant in two separate legal matters; one
         involving visitation rights with the appellant’s son, and the
         other relating to a car accident. 13
                                       ....
         3. CPT [T.N.] was aware that the appellant, in CPT [T.N.]’s
         words “had no one else to talk to, no one else to give him any
         guidance at all,” and broadened his consultations with the
         appellant to include his military justice issues.14
         4. On 30 April 2014, the appellant had his first meeting with
         his assigned a [sic] Navy defense counsel, LT [J.B.], JAGC,
         USN. The meeting occurred by telephone, since LT [J.B.] was
         stationed in Mayport, Florida, and the appellant was still
         stationed in Guantanamo. By then charges had been preferred,
         and the appellant was facing an Article 32[, UCMJ]
         investigation. The appellant was willing to have LT [J.B.] serve
         as his counsel for the Article 32 investigation. After the
         hearing, however, he wanted different counsel.15
         5. The appellant’s first choice of IMC was then-CDR [G.M.],
         JAGC, USNR. . . . LT [J.B.] recalls the appellant’s request for
         CDR [G.M.]. LT [J.B.] discussed the request with her [Officer-
         in-Charge] . . . and determined that CDR [G.M.] was not a
         viable choice for IMC because he was a reservist. LT [J.B.] and
         the appellant agreed that LT [J.B.] would take no further steps
         to secure CDR [G.M.] as an IMC.16
         6. After declining to pursue CDR [G.M.] the appellant crossed
         paths with CPT [T.N.] at the Windjammer, a base facility
         onboard Naval Station Guantanamo Bay. The appellant told
         CPT [T.N.] that his Article 32 hearing had gone poorly, and
         that he would not be able to have CDR [G.M.] as his IMC. CPT
         [T.N.] told the appellant that he was available and willing to be




   13 DuBay Judge’s Findings of Fact and Conclusions of Law at 2 (quoting DuBay
record at 237).
   14   

   16   

States v. Cooper, No. 201500039


      the appellant’s IMC. The appellant wanted CPT [T.N.] to be his
      IMC, and CPT [T.N.] told him to make the request.17
      7. The appellant testified that he told LT [J.B.] that he wanted
      CPT [T.N.] to be his IMC, and LT [J.B.] testified that he had
      not. Both witnesses appeared credible on the stand. [The
      DuBay judge] conclude[d] that the appellant did make the
      request because there is sufficient circumstantial evidence
      supporting the appellant’s version to convince [the DuBay
      judge] of the fact by a preponderance of the evidence.18
      8. [CPT T.N.’s] testimony about his [telephone] conversation
      with LT [J.B.], and in particular the fact that she was aware of
      the conversation between the appellant and CPT [T.N.] at the
      Windjammer tended to corroborate the appellant’s testimony
      and contradict LT [J.B.]’s recollection.19
      9. At some point the appellant clearly came to believe that he
      could not have CPT [T.N.] as an IMC, and he made yet another
      request for an attorney that he had worked with in
      Guantanamo Bay, Capt [J.N.], USMC. . . . Capt [J.N.]
      understood that the appellant was asking him because the
      appellant’s requests for [CDR G.M.] and [CPT T.N.] had been
      denied. [The DuBay judge] find[s] that [Capt J.N.] and the
      appellant exchanged the Facebook messages contained in
      Appellate Exhibit XXX-A, which convince [the DuBay judge]
      that the appellant was keen to get an IMC involved in the case,
      and that he was requesting attorneys he had worked with in
      Guantanamo Bay. These Facebook messages, which [the
      DuBay judge] considered as prior consistent statements of the
      appellant, tend to show that the appellant was under the
      impression that he could not have CPT [T.N.] as his IMC
      because [CPT T.N.] was still in Guantanamo Bay. While these
      messages do not directly corroborate the appellant’s assertion
      that he had asked LT [J.B.] to request [CPT T.N.], they are at
      least corroborative of his desire to have an IMC from
      Guantanamo Bay, and that he would have liked to have had
      CPT [T.N.] as his IMC. In light of this evidence, it would have
      been odd if the appellant hadn’t asked LT [J.B.] to request CPT
      [T.N.]—particularly since CPT [T.N.] had already been the

17   

18   

19   

States v. Cooper, No. 201500039


         appellant’s legal assistance attorney and had discussed the
         sexual assault allegations with him in some depth.20
   As the record supports these findings, and they are not clearly erroneous,
we also conclude that the appellant communicated to LT J.B. his desire to
request CPT T.N. as an IMC, and LT J.B. responded in a way that led the
appellant to believe CPT T.N. was not available.
   b. Was CPT T.N. available?
    Secondly, the DuBay judge was ordered to determine: “[w]as [CPT T.N.]
‘reasonably available’ to serve as [IMC] for YN2 Cooper in accordance with
Article 38, UCMJ; R.C.M. 506; JAGMAN § 0131; and any regulations
applicable to California National Guard judge advocates?”21 This second
question called for findings of fact and conclusions of law. We review the
conclusions of law de novo. 

.
   With regard to this second question, the DuBay judge first found that:
         10. For CPT [T.N.], a National Guard attorney executing orders
         under Title 10, the regulation defining ‘reasonably available’ is
         Army Regulation (AR) 27-10.
         AR 27-10 § 5-7 starts with a presumption that all Army judge
         advocates certified in accordance with Article 27(b), UCMJ are
         reasonably available unless they are excluded by law or
         regulation. AR 27-10 § 5-7.c. contains a list of judge advocates
         not reasonably available under the regulation, such as general
         officers, instructors, etc. CPT [T.N.] was not in any status at
         the time of the IMC request that would have made him not
         reasonably available.
         As CPT [T.N.] was not per se unavailable under AR 27-10 § 5-
         7.c., the commander of the organization to which he is assigned
         would have made a reasonable-availability determination upon
         consideration of all relevant factors, including a non-exclusive
         list of factors listed in paragraph 5-7d.(1)-(8) of the regulation.22
    We find the DuBay judge correctly identified the regulation governing
CPT T.N.’s availability to serve as an IMC. We agree that CPT T.N. was not
in one of the positions considered per se unavailable under R.C.M. 506(b)(1)
or AR 27-10. Thus “the commander or head of the organization, activity, or

   20   

   21 NMCCA Order of 6 Apr 2016. The JAGMAN refers to Judge Advocate General
Instruction 5800.7F (26 Jun 2012).
   22   DuBay Judge’s Findings of Fact and Conclusions of Law, at 4-5.

                                          15
                      United States v. Cooper, No. 201500039


agency to which [CPT T.N. was] assigned . . . [must] make [the]
administrative determination whether [CPT T.N.] is reasonably available in
accordance with the procedure prescribed by the Secretary concerned.”
R.C.M. 506(b)(2).
    The DuBay judge found that Lieutenant Colonel (LTC) J.L.C., California
Army National Guard, “who was CPT [T.N.]’s commander . . . would have
actually made the availability determination had a request for CPT [T.N.]
been forwarded.”23 When the DuBay judge analyzed the availability factors in
AR 27-10 § 5-7.d., he considered LTC J.L.C.’s affidavit as well as testimony
from CPT T.N., but he did not consider affidavits from CPT T.N.’s legal chain
of command at JTF Guantanamo Bay. The record indicates that JTF
Guantanamo Bay leadership disagreed sharply with LTC J.L.C. and CPT
T.N. about at least one of the factors—the impact of CPT T.N.’s absence on
the ability of his office to perform its required mission. JTF Guantanamo Bay
likely would have challenged LTC J.L.C.’s authority to make the availability
determination. It is likely there would have been a dispute as to CPT T.N.’s
availability. With that said, the record also revealed that CPT T.N. left JTF
Guantanamo Bay a month before the appellant’s court-martial but remained
on active duty. Failing to anticipate this complicated factual scenario, this
court required the DuBay judge to determine CPT T.N.’s availability. The
DuBay judge found that CPT T.N. would have been declared available. As the
factual findings supporting the DuBay judge’s determination of CPT T.N.’s
availability are not clearly erroneous, we can find no fault in that legal
conclusion.
     The DuBay judge also made findings of fact and conclusions of law as to
the attorney-client relationship between the appellant and CPT T.N. As the
DuBay judge mentioned, the existence of an attorney-client relationship is
relevant to the availability determination, in accordance with AR 27-10 § 5-
7.e.
         Notwithstanding the provisions [regarding persons not
         reasonably       available     and     reasonable     availability
         determination], if an attorney-client relationship exists
         between the accused and the requested counsel regarding
         matters that relate solely to the charges in question, the
         requested counsel will ordinarily be considered available to act
         as [IMC]. The Chief, [United States Army Trial Defense
         Service] . . . will review all claims asserting the existence of a
         prior attorney-client relationship.24

   23   

   24   AR 27-10 § 5-7.e.

                                        16
                      United States v. Cooper, No. 201500039


   The DuBay judge found that an attorney-client relationship between the
appellant and CPT T.N., related solely to the charges in question, existed and
continued to exist at the time of the appellant’s IMC request for CPT T.N. 25
The appellant confided in CPT T.N. about the matter under investigation,
and CPT T.N. offered advice about the appellant’s rights and motions that
could be filed at a subsequent court-martial. As to CPT T.N.’s intent in
forming such a relationship with the appellant, the DuBay judge found that
“CPT T.N. intentionally formed an attorney-client relationship with the
appellant because he did not believe that the appellant’s interests were being
served by Navy legal channels after the appellant was told that he would
receive counsel after charges were referred.”26 We agree with the DuBay
judge that CPT T.N. initially formed an attorney-client relationship with the
appellant for legal assistance matters but later expanded it to include the
military justice matters at issue in the court-martial.
    The DuBay judge went on to conclude that the attorney-client
relationship would have warranted CPT T.N.’s availability “notwithstanding
the factors listed in AR 27-10 § 5-7.d. (1)-(8).”27 The availability of a requested
counsel is weighed against the government’s duty not to sever an attorney-
client relationship without good cause or the consent of the client. 

. When considering the nature of an attorney-client relationship
for the specific purpose of determining whether a per se unavailable counsel
should be made available as an IMC, the relationship requires more than
confidential communications about the charges in question. 

  DuBay Judge’s Findings of Fact and Conclusions of Law at 7.
    26Id. The appellant’s trial defense counsel was detailed upon preferral, not
referral. This appears to be the DuBay judge’s typographical error and not reflective
of a misunderstanding on the part of CPT T.N. In the context of formation of an
attorney-client relationship for legal assistance and military justice matters, the
DuBay judge asked CPT T.N., “was there something different about this case that
made you feel like, you know, you really had to occupy both fields [legal assistance
and military justice] in that way?” DuBay record at 236-37. CPT T.N. replied:
          It’s because that at JTF [Guantanamo Bay], they have no defense
          attorneys there. They had—I—I think they might have had somebody
          over on the [Naval Station] side that would dabble in some of that
          stuff, if memory serves, but they always told JTF troopers no, so they
          were—they didn’t help JTF troopers, whether they were Sailors or in-
          service, it didn’t matter, and it was—he had no one else to talk to, no
          one else to give him any guidance at all, and so under those
          circumstances, which were very unique to [Guantanamo Bay], I felt
          that it was necessary under those circumstances.

    27   DuBay Judge’s Findings of Fact and Conclusions of Law at 8.

                                            17
                   United States v. Cooper, No. 201500039


communications do not support the existence of an ongoing attorney-client
relationship unless they reflect a bilateral understanding between an
attorney and a client as to the ongoing nature of the services to be provided.”

The DuBay judge did not cite Spriggs, nor did he find
facts demonstrating “both a bilateral understanding as to the nature of
future representation and active engagement by the attorney in the
preparation and pretrial strategy of the case.” 

Had CPT T.N.’s
command declared him unavailable, the command and the Chief of Army
Trial Defense Services would then have had to consider the potential
severance of his attorney-client relationship. Without a bilateral
understanding about future representation at the appellant’s trial, the
command and defense chief could legitimately have found that the
relationship between CPT T.N. and the appellant did not overcome CPT
T.N.’s unavailability.
    But in light of the specific facts of this case, the exact nature of the
attorney-client relationship for purposes of CPT T.N.’s availability is not
dispositive. Even if JTF Guantanamo Bay had prevailed upon CPT T.N.’s
chain of command in the California Army National Guard and deemed him
unavailable and the nature of the attorney-client relationship had not
necessitated availability, CPT T.N. left JTF Guantanamo Bay and redeployed
to the United States in August 2013, one month before the court-martial. He
remained on active duty and, theoretically, would have been available to
represent the appellant at his court-martial. Perhaps more important, the
existence of an attorney-client relationship between the appellant and a
requested attorney who was not per se unavailable further compelled the
detailed defense counsel to submit a written request for IMC to the requested
counsel’s command via trial counsel and the CA. Determination as to
availability, and whether an attorney-client relationship necessitated it, “is a
matter within the sole discretion of” the requested counsel’s command.
R.C.M. 506(b)(2).
    We find that in light of the military judge’s findings of fact, which are not
clearly erroneous, his conclusions of law and determination that CPT T.N.
was available as an IMC were correct. We further conclude that the
appellant’s understanding that CPT T.N. was unavailable was erroneous,
and the possibility that he might have been found unavailable neither
excused nor mooted LT J.B.’s failure to draft and submit an IMC request.
   c. Waiver of the appellant’s right to IMC
    The government challenges the DuBay judge’s finding that the appellant
wanted CPT T.N. as his IMC with the appellant’s words at trial. At
arraignment, the military judge properly advised the appellant of his “right
to be represented by military counsel of [his] own selection, provided that the

                                       18
                       United States v. Cooper, No. 201500039


counsel [he] request[s] is reasonably available.”28 The appellant
acknowledged that he understood and when asked whom he wanted to
represent him, the appellant responded, “[LT J.B.], sir.”29 The military judge
repeated the colloquy at a subsequent session of court when the appellant’s
assistant detailed defense counsel, LCDR N.G., first appeared. When asked
whether any other counsel had been requested in the case, LCDR N.G.
responded, “[n]o, your honor.”30 The appellant remained silent.
    The government argues that the appellant’s acknowledgement of his right
to IMC, expression of his desire that LT J.B. represent him, and failure to
contradict counsel’s statements that no other counsel had been requested in
the case render the DuBay judge’s finding of fact clearly erroneous. And
arguably, the appellant waived his right to IMC during these colloquies with
the military judge. But such arguments fail to account for the requirement
that a waiver of the statutory right to IMC be knowing and intelligent. See
United States v. Mott, 

, 327 (C.A.A.F. 2013) (citing Edwards v.
Arizona, 

, 484 (1981)) (requiring that an accused’s waiver of
constitutional and statutory rights to counsel “be knowing and intelligent,
and not merely voluntary”). The appellant knowingly, intelligently, and
voluntarily waived his right to request CDR G.M. and Capt J.N. as IMC.
There is no dispute that the appellant advised his counsel of his desire to
request CDR G.M. and Capt J.N., that both were per se unavailable under
R.C.M. 506(b), and that the appellant properly understood and agreed to the
futility of requesting them.
   To the extent the appellant waived his right to request CPT T.N. as an
IMC, he relied on an erroneous representation of CPT T.N.’s unavailability.
When asked why he named LT J.B. and not another attorney as his choice to
represent him, the appellant testified:
         I had no reason to, like they had all been denied, you know.
         That was the last person I had, and after they asked who I
         wanted to be represented by. I didn’t know to bring up other—
         other IMCs that had been denied, so at that time, like, I
         wanted [LT J.B.] to represent me because my other requests
         had been denied.31
Based on the fallacy of the appellant’s belief, his waiver was not knowing or
intelligent. We find no valid waiver of the appellant’s express wish to request


   28   Record at 5.
   29   

   30   

   31   DuBay record at 58.

                                        19
                  United States v. Cooper, No. 201500039


CPT T.N. as an IMC. LT J.B.’s failure to draft and submit an IMC request for
CPT T.N. on the appellant’s behalf constituted a deprivation of his statutory
right to IMC.
   5. Assessing the prejudice of the appellant’s loss of his right to IMC
    Having determined that the appellant suffered deprivation of his
statutory right to IMC, we must determine how to assess the prejudice, if
any.
   a. Choice of counsel, not effective assistance of counsel
    First, we disagree with framing deprivation of IMC as ineffective
assistance of counsel or applying the Strickland test. Even though we do not
find a Sixth Amendment right to IMC, Gonzalez-Lopez is relevant and
persuasive on this point. The Gonzalez-Lopez Court highlighted the separate
and distinct origin of the right to choice of counsel and its independence from
the right to effective 

. Congress has preserved the
right to IMC for service members even after guaranteeing representation by
detailed defense counsel before general and special courts-martial, regardless
of financial need. The right to IMC is independent of the right to competent,
effective detailed defense counsel. To enforce the right to IMC only if and
when detailed defense counsel’s performance is ineffective is to hollow out the
right to IMC.
    An appellant alleging ineffective assistance of counsel must not only
allege a deficiency but also demonstrate “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.” United States v.
Akbar, 

, 371 (C.A.A.F. 2015) (quoting 

). If defense counsel’s error resulted in an IMC’s absence from the trial
defense team, the appellant would be required to demonstrate a reasonable
probability that the missing IMC would have won a different result. Finding
the difficulty of such a speculation “not remotely comparable” to the difficulty
of assessing the prejudice of a trial error, the Gonzalez-Lopez Court declined
to require such speculation from an 

.
   b. Error incapable of assessment
    The Gonzalez-Lopez Court held that the opportunity cost associated with
denial of counsel of choice defies calculation. 

. Without CPT T.N. on
his trial defense team, the appellant faced consequences just as
“‘unquantifiable and indeterminate’” as those faced by Gonzalez-Lopez. 

508 U.S. at 282). Whether the entitlement to counsel
derives from the Constitution or statute, a “[h]armless-error analysis in such
a context would be a speculative inquiry into what might have occurred in an
alternate universe.” 

after Strickland, our superior court

                                      20
                    United States v. Cooper, No. 201500039


foreshadowed this holding in Gonzalez-Lopez. Relying on earlier Supreme
Court analysis of the Sixth Amendment and Article 59(a), UCMJ, this court
and the C.M.A. found deprivation of the right to IMC presumptively
prejudicial. See 

(holding that the right to IMC “cannot
be analyzed in terms of specific prejudice”); 

(declining to “indulge in nice calculations as to the amount of prejudice
arising from” the denial of IMC) (citation and internal quotation marks
omitted); 

(presuming prejudice “arising from the denial
of” the right to IMC).
    Deprivation of a right to IMC and the difficulty, if not impossibility, of
quantifying the prejudice suffered is distinguishable from the more
quantifiable prejudice suffered from interference with a right to counsel. In
Wiechmann, the CA refused to recognize one of the detailed defense counsel,
prohibited his participation in the Article 32, UCMJ, hearing, and excluded
him from pretrial 

. The Court of Appeals for the
Armed Forces (CAAF) recognized that the CA “burdened [counsel’s]
representation of Appellant” and “adversely affected” and “restricted”
Wiechmann’s rights. 

But Wiechmann waived much of the error
when he entered into a pretrial agreement and “had the benefit of [counsel’s]
unrestricted assistance during the subsequent negotiations, completion of the
agreement, entry of pleas, and other trial and post-trial proceedings.” 

The CAAF found that the CA’s actions did not “constitute the type of
error that is incapable of assessment[.]” 

548 U.S.
at 148-49; United States v. Brooks, 

, 224 (C.A.A.F. 2008)).32
    In United States v. Hutchins, the CAAF reached for the approach used in
Wiechmann and cases “involving errors that produced an interference with
the attorney-client relationship.” 

, 292 (C.A.A.F. 2011) (citing
Wiechmann, 

; United States v. Rodriguez, 

(C.A.A.F.
2004)). One member of Sergeant Hutchins’ trial defense team terminated his
attorney-client relationship and representation shortly before trial. A
majority of our court found improper severance of the attorney-client
relationship and concluded that “any attempt to assess prejudice would be
speculative.” United States v. Hutchins, 

, 631 (N-M. Ct. Crim.
App. 2010). The CAAF disagreed, finding instead “oversights and omissions
in addressing the issue of 

. These were “trial errors


    32 “The infringement of Appellant’s rights in this case constituted a trial error

that can be ‘quantitatively assessed in the context of other evidence.’” 

(quoting 

) (internal quotation marks
omitted). Assuming without deciding that the interference violated Wiechmann’s
Sixth Amendment rights, the CAAF assessed it for harmlessness beyond a
reasonable doubt. 

States v. Morrison, 

, 364 (1981)).

                                         21
                  United States v. Cooper, No. 201500039


that can be evaluated under the standard formula for assessing prejudice
against the defense” and required the defense to “establish that the error
produced material prejudice to the substantial rights of the accused.” 

59(a), UCMJ; United States v. Acton, 

, 336-37
(C.M.A. 1993)).
    Unlike the errors in Hutchins and Wiechmann, non-submission of the
appellant’s IMC request for CPT T.N. cannot be recast as a mere interference
with or restriction upon his right to IMC. CPT T.N. was not forced to
represent the appellant under some kind of handicap. Instead, the appellant’s
requested IMC was prevented from representing him at all. When the
government is responsible for IMC’s absence, as in Beatty, Hartfield, and
Allred, the effect of the IMC’s absence is not susceptible to quantification or
assessment in context. Had the government deprived the appellant of CPT
T.N.’s representation, precedent would support a finding of presumptive
prejudice.
    But the deprivation occurred within the appellant’s attorney-client
relationship with LT J.B. Although we can sometimes pierce the attorney-
client privilege to investigate alleged errors, there are risks inherent in
presuming prejudice from errors arising between attorney and client. See, e.g.

(finding no prejudice in an attorney’s improper
unilateral withdrawal from representation after the client fired him).
Therefore we must balance harm to the appellant that defies quantification
against circumstances arising in a protected relationship and outside the
government’s control.
   c. Material prejudice
    Assuming without deciding that a presumption of prejudice is
inappropriate in this case, we assess for material prejudice to the appellant’s
substantial rights to request an IMC. Art. 59(a), UCMJ. From the record of
trial and the DuBay hearing, we find the following.
    The appellant did not receive the level of legal services statutorily
afforded to every Sailor, anywhere in the world. When the appellant learned
he was suspected of sexual assault in November 2013 he was deployed to
Guantanamo Bay, Cuba—exactly the kind of isolated location that prompted
the creation of the right to IMC. See 

. He tried to
schedule a telephone consultation with a judge advocate at DSO SE, as was
his right. A representative of RLSO SE—the prosecution and command
services command—turned him away. In the ensuing five months before
charges were preferred and detailed defense counsel was assigned, the
appellant turned to the attorneys in his office, including CPT T.N., for help.
Troubled by the appellant’s inability to obtain legal advice from the Navy,
CPT T.N. exceeded the boundaries of his legal assistance relationship with

                                      22
                  United States v. Cooper, No. 201500039


the appellant and advised him on the investigation and possible charges
against him. CPT T.N. formed an attorney-client relationship with the
appellant about the matters at issue to fill the Navy’s gap.
    Five months after the appellant left his NCIS interview to seek legal
counsel, LT J.B. was detailed to represent him. Their attorney-client
relationship was mostly a long-distance one. There is no indication in the
record that either detailed defense counsel ever visited Guantanamo Bay as
part of their pretrial preparation.
   Dismayed by the course of his Article 32, UCMJ, investigative hearing at
the end of May, the appellant identified three different attorneys as possible
IMC. Two were per se unavailable, but CPT T.N. was not. While the available
record does not reveal how the misunderstanding arose between the
appellant and LT J.B., the appellant requested CPT T.N. as his IMC. Only
CPT T.N.’s chain of command could have declared CPT T.N. unavailable.
Nevertheless, the appellant relied on the misperception that CPT T.N. was
unavailable.
   CPT T.N.’s attorney-client relationship with the appellant preceded the
appellant’s relationship with LT J.B. and LCDR N.G. by months. CPT T.N.
and the appellant had talked extensively about the case, in person, about the
case since 2013. Finally, unlike LT J.B. and LCDR N.G., CPT T.N. was in
Guantanamo Bay.
    We need not and do not opine on the effectiveness of LT J.B. or LCDR
N.G. Our superior courts have declared the folly of trying to compare the
legal representation an accused might have received with desired counsel to
the representation the accused actually received. But mindful of the risk of
presuming prejudice from a detailed defense counsel’s failure to submit an
IMC request, we look further. In this case we find that a member of an agent
of the government—RLSO SE—frustrated the appellant’s right to legal
advice early in the case. We find formation of an attorney-client relationship
regarding the facts of this case in direct response to that frustration. And
finally, we find deprivation of representation by that attorney, with whom the
relationship was shared, through no fault of the appellant. The facts of this
case lead us to conclude the appellant suffered material prejudice when his
IMC request for CPT T.N. was never drafted and forwarded to CPT T.N.’s
chain of command for consideration and possible approval.
    Finding material prejudice to the appellant’s substantial, statutory right
to IMC, both from the incalculable prejudice suffered from deprivation of his
right to request CPT T.N. as an IMC and the actual harm suffered, we find
reversible error. Art. 59(a), UCMJ.



                                     23
                     United States v. Cooper, No. 201500039


B. Legal and factual sufficiency
   Before we can return the record of this trial to the Judge Advocate
General for remand to the CA with authority to order a rehearing, we must
address AOE 2 and the legal and factual sufficiency of the sexual assault
convictions.
    We review the legal and factual sufficiency of evidence de novo. Art. 66(c),
UCMJ; United States v. Washington, 

, 399 (C.A.A.F. 2002). The
test for the legal sufficiency of evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 

, 324-25 (C.M.A. 1987) (quoting Jackson v.
Virginia, 

, 319 (1979)). In resolving questions of legal sufficiency,
“we are bound to draw every reasonable inference from the evidence of record
in favor of the prosecution.” United States v. Barner, 

, 134
(C.A.A.F. 2001) (citations omitted).
    “For factual sufficiency, the test is whether, after weighing the evidence
in the record of trial and making allowances for not having personally
observed the witnesses, the members of the [appellate court] are themselves
convinced of the accused’s guilt beyond a reasonable doubt.” 

. “Such a review involves a fresh, impartial look at the evidence, giving
no deference to the decision of the trial court on factual sufficiency beyond the
admonition in Article 66(c), UCMJ, to take into account the fact that the trial
court saw and heard the witnesses.” 

. “By
‘reasonable doubt’ is not intended a fanciful or ingenious doubt or conjecture,
but an honest, conscientious doubt suggested by the material evidence or lack
of it in this case. . . . The proof must be such as to exclude not every
hypothesis or possibility of innocence, but every fair and rational hypothesis
except that of guilt.” United States v. Loving, 

, 281 (C.A.A.F.
1994).
    The government’s case against the appellant is not overwhelming. The
day after the assault, the victim, PO2 J.P., went to the chapel to speak with a
Religious Program Specialist (RP) who also happened to be a friend of the
appellant. The RP testified that “[s]he said that she’d been—she may have
been assaulted and wanted to file a complaint.”33 When the RP asked her if
the encounter had been consensual, she replied yes, it was consensual. She
also told the RP that she had made a mistake, but it was unclear to him what
she considered to be her mistake.




   33   Record at 379.

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                  United States v. Cooper, No. 201500039


    PO2 J.P. was in the appellant’s quarters voluntarily, and neither she nor
the appellant had consumed any alcohol. She offered no reason for remaining
in the appellant’s bed, despite ample opportunity to flee, other than tonic
immobility. The expert witness’s testimony about tonic immobility was more
informational and theoretical. There was no forensic evidence suggesting lack
of consent, and the appellant’s own statements implied his perception of a
consensual encounter.
   However, neither the record nor the appellant offers a credible motive for
PO2 J.P. to fabricate her allegation of sexual assault. Although the evidence
was not well-developed, PO2 J.P. did testify to a history of tonic immobility.
Reviewing PO2 J.P.’s and the appellant’s testimony, we find her to be the
more credible party. The members, who were able to observe both PO2 J.P.
and the appellant on the stand, apparently shared our assessment. While we
do not defer to the members’ findings, we do consider their opportunity to
observe the witnesses in person.
   Having given the evidence a fresh and impartial look, we are convinced
beyond a reasonable doubt of the appellant’s guilt.
C. Article 32, UCMJ, hearing
   Finally, we address AOEs 6 and 7 regarding the appellant’s Article 32,
UCMJ, investigative hearing. The appellant alleges UCI and a lack of due
process stemming from a lack of evidence against him and ineffective
assistance of counsel. Finding no merit in AOEs 6 and 7, there is no need for
a new Article 32, UCMJ, investigative hearing or new legal advice to the CA
pursuant to Article 34, UCMJ. Thus we need not vacate referral of his
charges to court-martial in addition to authorizing a rehearing.
   The appellant first raises UCI on appeal, but contrary to the
government’s brief, UCI is never waived. See United States v. Riesbeck, 

, 2018 CAAF LEXIS 50, *28, n.5 (C.A.A.F. 2018).
   The prohibition against UCI originates in Article 37, UCMJ:
       No authority convening a general, special, or summary court-
       martial, nor any other commanding officer, may censure,
       reprimand, or admonish the court or any member, military
       judge, or counsel thereof, with respect to the findings or
       sentence adjudged by the court, or with respect to any other
       exercises of its or his functions in the conduct of the
       proceedings. No person subject to this chapter may attempt to
       coerce or, by any unauthorized means, influence the action of a
       court-martial or any other military tribunal or any member
       thereof, in reaching the findings or sentence in any case, or the


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                    United States v. Cooper, No. 201500039


        action of any convening, approving, or reviewing authority with
        respect to his judicial acts.
Art. 37(a), UCMJ. UCI may be actual, resulting in actual prejudice to an
accused, or apparent, with no discernible impact on an accused but resulting
in a loss of confidence in the fairness of our military justice system.
    An accused has the burden of raising a claim of UCI and must “(1) show
facts which, if true, constitute [UCI]; (2) show that the proceedings were
unfair; and (3) show that [UCI] was the cause of the unfairness. United
States v. Biagase, 

, 150 (C.A.A.F. 1999) (citing United States v.
Stombaugh, 

, 213 (C.M.A. 1994)). “[I]n an appellate context,” this
burden is not met “until the defense produces evidence of proximate
causation between the acts constituting [UCI] and the outcome of the court-
martial.” 

States v. Reynolds, 

, 202 (C.M.A.
1994)). If the appellant meets this burden, the burden shifts to the
government to rebut “by persuading the appellate court [beyond a reasonable
doubt] that the [UCI] had no prejudicial impact on the court-martial.” 

    Alternatively, an appellant may raise a claim of apparent UCI by showing
“‘some evidence’”34 of “facts, which if true, constitute [UCI]” and that “this
[UCI] placed an ‘intolerable strain’ on the public’s perception of the military
justice system because ‘an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant doubt about the
fairness of the proceeding.’” United States v. Boyce, 

, 249 (C.A.A.F
2017) (citing United States v. Lewis, 

, 415 (C.A.A.F. 2006)
(internal quotation marks omitted) (citation omitted)). If an appellant
presents some evidence, the burden shifts to the government to rebut the
allegations beyond a reasonable doubt by proving the proffered facts do not
exist, that they do not constitute UCI, or that they do not place an intolerable
strain on public perception of the fairness of the proceeding. 

constituting UCI, the appellant proffers that “the [CA] directed
the [Article 32, UCMJ,] investigating officer not to consider evidence falling
under [MIL. R. EVID.] 412 or to hold any closed hearing to consider the
admissibility of evidence under any exception to that rule.”35 He produces no
“evidence of proximate causation between the acts constituting [UCI] and the
outcome of the court-martial.” 

. In fact there is no

   34 United States v. Boyce, 

, 249 (C.A.A.F 2017) (quoting United States
v. Stoneman, 

, 41 (C.A.A.F. 2002) (internal quotation marks omitted)
(additional citation omitted)).
    Appellant’s Brief and Assignment of Error of 17 Sep 2015 at 54 (citing
   35

Commander, Navy Region Southeast memo of 22 May 2014).

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                      United States v. Cooper, No. 201500039


indication in the record that the appellant ever tried to admit evidence under
MIL. R. EVID. 412. Having failed to meet the burden of demonstrating some
evidence of actual UCI, we will only consider whether the facts demonstrate
some evidence of an appearance of UCI. We begin by considering a CA’s
authority with regard to Article 32, UCMJ, investigative hearings.
      1. R.C.M. 405
  As to who may direct a preliminary hearing in accordance with Article 32,
UCMJ, R.C.M. 405(c) states:
         Unless prohibited by regulations of the Secretary concerned, a
         preliminary hearing may be directed under this rule by any
         court-martial [CA]. That authority may also give procedural
         instructions not inconsistent with these rules.
   An Article 32, UCMJ, hearing—a prerequisite to referral of charges to
general court-martial—necessarily precedes referral. “Because a military
judge is not appointed to conduct proceedings until charges are referred to a
court-martial,” the CA, not a military judge, “exercises responsibility for
pretrial matters that would otherwise be litigated before a judge in civilian
proceedings[.]” 

. Among pretrial matters is
production of witnesses and evidence. With a handful of exceptions, the
Military Rules of Evidence do not apply to pretrial investigations. R.C.M.
405(i) (2012 ed.). MIL. R. EVID. 412 is one of those exceptions.
      2. MIL. R. EVID. 412
      A rule of exclusion, MIL. R. EVID. 412 directs that:
         The following evidence is not admissible in any proceeding
         involving an alleged sexual offense except as provided in
         subdivisions (b) and (c):
         (1) Evidence offered to prove that any alleged victim engaged
             in other sexual behavior.
         (2) Evidence offered to prove any alleged victim’s sexual
             predisposition.
Subdivision (b) details exceptions to this exclusion. Subdivision (c) describes
the procedures by which military judges conduct closed hearings to consider
excepted evidence and determine its admissibility. MIL. R. EVID. 412(c)
(emphasis added).
      In this case, the CA directed the Article 32, UCMJ, investigating officer
to:
         comply with the provisions of Articles 31 and 32, UCMJ, Rule
         for Court-Martial [sic] 405 and JAGMAN 0143. This includes

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                   United States v. Cooper, No. 201500039


        the requirements of [MIL. R. EVID.] 412, which I am explicitly
        directing prohibits you from considering evidence falling under
        that Rule or holding any closed hearing to consider the
        admissibility of such evidence under any exception contained in
        that rule.36
We find the CA’s direction not inconsistent with the Rules for Courts-Martial
or Military Rules of Evidence. The CA acted within his authority prescribed
by R.C.M. 405. Thus his direction is not some evidence of UCI. Even in the
context of apparent UCI, the appellant has not met his initial burden.
   3. Deficiencies in Article 32, UCMJ, hearing
    Finally, the appellant alleges that a witness gave “largely and verifiably
false” testimony at the Article 32, UCMJ, hearing, and both the investigating
officer and his trial defense counsel failed to challenge the witness on the
claims. Having reviewed the record and briefings, we find no merit in the
appellant’s claim that he was denied his right to a thorough investigation
under the Fifth Amendment and Article 32, UCMJ. See United States v.
Clifton, 

, 81 (C.A.A.F. 1992).
   Finding neither UCI nor other error in the appellant’s Article 32, UCMJ,
hearing we need not vacate the original referral of his charges or order a new
Article 32, UCMJ, hearing.
                               III. CONCLUSION
   The findings and sentence are set aside, and the record is returned to the
Judge Advocate General of the Navy for remand to an appropriate CA with
authority to order a rehearing.
   Judge JONES and Judge WOODARD concur.
                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




   36Commander, Navy Region Southeast memo of 22 May 2014. JAGMAN 0143
governs spectators at proceedings, including Article 32, UCMJ, investigations.

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