United States v. BURGESS

Before KORN, FLINTOFT, and MOSLEY Appellate Military Judges _________________________ UNITED STATES Appellee v. Christopher J. BURGESS II Gunnery Sergeant (E-7), U.S. Marine Corps Appellant No. 202400485 _________________________ Decided: 23 October 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Matthew M. Harris Sentence adjudged 1 May 2024 by a special court-martial tried at Ma- rine Corps Air Station Miramar, California, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-6. For Appellant: Erik M. Kopka Kimberly D. Barnes For Appellee: Lieutenant Michael G. Osborn, JAGC, USN Commander John T. Cole, JAGC, USN  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court Judge MOSLEY delivered the opinion of the Court, in which Chief Judge KORN and Senior Judge FLINTOFT joined. _________________________ This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ MOSLEY, Judge: Appellant was convicted, contrary to his pleas, of three specifications of vi- olating a lawful general order in violation of Article 92, Uniform Code of Mili- tary Justice (UCMJ), and of two specifications of maltreatment, in violation of Article 93, UCMJ.1 Appellant raises two assignments of error (AOEs): I. Were Appellant’s trial defense counsel ineffective be- cause they failed to investigate the charges against Appellant? II. Was Appellant’s right to speedy post-trial processing violated when the Government took 272 days from sentencing to send him a notice of his right to appeal? We find no prejudicial error and affirm. I. BACKGROUND Appellant was a drill instructor stationed at Marine Corps Recruit Depot San Diego in 2022. In December 2022, Appellant entered a squad bay occupied by female recruits and made physical contact with a female recruit by touching her on the head. Another drill instructor witnessed Appellant make physical contact with the recruit and subsequently questioned additional female re- cruits regarding any prior interactions they had with Appellant. Several fe- male recruits reported that Appellant had made unwelcome physical contact with them. Two recruits described Appellant having grabbed their war belts 1 10 U.S.C. § 893. The military judge conditionally dismissed Specification 2 of Charge II after findings due to an unreasonable multiplication of charges. 2  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court while they were wearing them. Another recruit described Appellant having wiped his hands on her back and grabbed the nametag on her chest in a way she perceived as improper. Additionally, female recruits stated that Appellant had made demeaning or inappropriate comments. Based on these reports, the command conducted an investigation, which led to the Government referring charges against Appellant to a special court-martial. The case was referred to a special court-martial consisting of a military judge sitting alone pursuant to Article 16(c)(2)(A), UCMJ. Before trial, Appel- lant was detailed two trial defense counsel (TDC). The military judge presided over two Article 39(a) sessions to litigate pretrial motions, one on 27 March 2024, and another on 29 April 2024, which was also the first day of trial. Dur- ing the 27 March 2024 motions hearing, TDC explained to the military judge the investigative steps they had undertaken in the case.2 During the 29 April 2024 motions hearing, TDC argued a motion to con- tinue the trial for 21 days. Three days prior, TDC visited the Naval Criminal Investigative Service (NCIS) field office to review the case file. TDC discovered 50 pages of notes in the NCIS file that had not been previously provided to Defense in discovery; as a result, TDC requested a continuance to allow for sufficient time to review. The military judge questioned why TDC had not re- viewed the NCIS file earlier, resulting in the following exchange: DC: [I]t’s not our duty to go out and find exculpatory -- poten- tially exculpatory documents and information in order to prove our case. MJ: Well, I’ll stop you there. The government absolutely has a duty to disclose exculpatory information to you, an affirmative duty, even if you’re just sitting on your hands. That said, you would be failing in your duty of competent representation if you did not go look at the NCIS file. So I’m glad you did that. . . . So you said you didn’t have a duty. I disagree with that. That’s separate from the government’s affirmative duty to provide you with exculpatory information. DC: Correct, Your Honor, I think I misspoke, and my apologies. Yes, I agree. We do have a duty to continue our investigation.3 2 TDC informed the military judge that they conducted their own investigation, which included reviewing nearly 600 pages of documents, several hundred pages of medical records, seven hours of video testimony from seven witnesses, interviewing additional witnesses, and completing two additional site visits. R. at 18-19. 3 R. at 107-08. 3  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court Trial defense counsel further explained to the military judge additional in- vestigative steps taken. During argument, TDC pivoted from a request for a continuance to a request for the Government to produce two witnesses for trial. The military judge denied the oral motion to produce the two witnesses, stat- ing: The defense motion to compel the production of [two witnesses] [is] extremely untimely. The only reason the Court is having to address this issue now is because of the defense’s lack of dili- gence in pursuing those witnesses. The Court denies the motion to compel both witnesses on this basis alone.4 After denying the defense motion, the military judge made the following statement to the Government, I encourage the government in the strongest possible terms to produce Lance Corporal [I.M.]5 for trial to ensure that the de- fense counsel’s failures do not prejudice the substantial rights of the accused who has risen to the rank of gunnery sergeant, who wears campaign ribbons from both Iraq and Afghanistan, and who is personally blameless in this delay.6 At trial, TDC cross-examined nine Government witnesses, called six De- fense witnesses, including Lance Corporal (LCpl) I.M., and introduced 11 pieces of documentary evidence. Appellant was found guilty of making unau- thorized physical contact with three recruits. He was also found guilty of using unprofessional language with recruits. Appellant’s court-martial adjourned 1 May 2024. On 9 May 2024, TDC sub- mitted a clemency request that the convening authority (CA) subsequently de- nied on 4 June 2024. While reviewing the record, the military judge discovered that TDC’s clem- ency request improperly relied on R.C.M. 1110 rather than 1109 and requested relief the CA was not empowered to grant.7 The CA did not address this error in the CA’s Action. The military judge therefore reopened the court-martial on 4 R. at 194-95. 5 LCpl I.M. was a recruit in boot camp during the period of time when Appellant was the drill instructor. R. at 620-622. 6 R. at 196; The military judge stated, “Even if the Court were to consider the motion to compel Lance Corporal C. [the second witness requested], the Court would deny it as the defense has not demonstrated even the relevance, much less the necessity of her testimony.” R. at 195. 7 R. at 84-85; The clemency submission requested the CA disapprove the two maltreat- ment specifications and the findings be dismissed. 4  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court 13 September 2024 to discuss the clemency request. The post-trial Article 39(a) session was held 135 days after the announcement of the sentence.8 The military judge offered Appellant the option to resubmit the clemency request, but advised Appellant that submitting a revised clemency request would create additional delay: . . . I’m giving you and your team another bite at the apple for your clemency submission. I don’t have to do that if you don’t want me to. That’s going to delay the post-trial processing of your case. Meaning it’s not going to be up at the appellate courts as quickly. And you can’t make any appeal that you might want to make as quickly because this is being done, okay?9 Appellant discussed the issue with TDC, and TDC stated, “we would like the time to resubmit clemency . . . .”10 The military judge ordered the Defense team to resubmit a clemency request to the CA that same day. Later that day, TDC submitted a revised request. The CA denied the cor- rected clemency request on 14 November 2024, and the Entry of Judgment was subsequently signed on 22 November 2024 by the military judge. Additional facts for both AOEs are included below. II. DISCUSSION A. Trial Defense Counsel Were Not Ineffective. 1. Standard of Review and Applicable Law We review ineffective assistance of counsel claims de novo.11 Under Strick- land v. Washington, an appellant bears the burden of demonstrating that (a) defense counsel’s performance was deficient, and (b) this deficient performance was prejudicial.12 To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy both prongs of the Strickland v. Washington test. First, to demonstrate that counsel’s performance was deficient requires showing that counsel made errors so serious that counsel was not functioning as the counsel 8 R. at 801. The announcement of sentence was on 1 May 2024, and the post-trial Ar- ticle 39(a) session was held on 13 September 2024, which was 135 days later. 9 R. at 807. 10 R. at 808. 11 United States v. Suarez, 86 M.J. 65, 73 (C.A.A.F. 2025) (citing United States v. Metz, 84 M.J. 421, 428-29 (C.A.A.F. 2024)). 12 See Strickland v. Washington, 466 U.S. 668 (1984). 5  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court guaranteed the defendant by the Sixth Amendment.13 This means that an ap- pellant “must show that counsel’s representation fell below an objective stand- ard of reasonableness.”14 Judicial scrutiny of counsel’s performance must be highly deferential, and this Court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assis- tance . . . .”15 Second, an appellant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.16 An appellant 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 prob- ability sufficient to undermine confidence in the outcome.17 2. Analysis Appellant asserts that TDC were ineffective because they: (1) failed to thor- oughly and adequately investigate the allegations and attack the credibility of several witnesses; (2) failed to raise the possibility of an alibi defense; and (3) failed to raise the defense of impossibility of some allegations.18 We disagree. “Counsel has a duty to make reasonable investigations or to make a rea- sonable decision that makes particular investigations unnecessary.”19 “The Sixth Amendment imposes on counsel a duty to investigate, because reasona- bly effective assistance must be based on professional decisions and informed legal choices can be made only after investigation of options.”20 a. TDC did not fail to thoroughly and adequately investigate the allega- tions. 13 Id. at 687. 14 Id. at 688. 15 Id. at 689. 16 Id. at 687. 17 Id. at 694. 18 Appellant also argues that TDC were not equipped to represent him because “[T]he publicity, his years of dedicated service, the number of accusers and specific allegations within each charge. . . .” Appellant’s Brief at 12. TDC were properly qualified and sworn in accordance with Articles 27(b) and 42(a), UCMJ. We are aware of no addi- tional requirements for a case such as Appellant’s—which we do not find particularly complex, nor does appellate defense counsel cite any. We therefore decline to further address this argument. 19 Strickland, 466 U.S. at 691. 20 Id. at 680. 6  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court Appellant’s argument that TDC failed to thoroughly investigate the allega- tions focuses on two main areas: (1) a comment TDC made to the military judge during the 29 April 2024 Article 39(a) motions hearing about TDC’s role in conducting their own defense investigation; and (2) Appellant’s belief that TDC should have attacked the credibility of several Government witnesses due to collusion and another Government witness due to her bias. (1) TDC’s comment on 29 April 2024. Three days before the start of trial, TDC visited the NCIS field office to review the case file and found handwritten notes of the NCIS agent that TDC was previously unaware of. This discovery prompted TDC to file for a continu- ance to review those notes and to compel the discovery of any additional notes.21 The motion for continuance was heard on the first day of trial. The military judge was concerned that TDC waited until three days before trial to review the case file. Appellant argues that TDC’s statement to the military judge that “it is not our duty to go out and find exculpatory . . . information . . . .”22 is evidence that TDC did not understand their duty to thoroughly and adequately investigate the allegations. However, Appellant’s account omits the remainder of the ex- change. TDC informed the military judge that they had misspoken and af- firmed their responsibility to investigate.23 We do “not assess trial defense counsels’ performance through the prism of appellate hindsight” or apply a subjective view of how we think they should have acted.24 The standard is not whether counsel conducted a perfect investi- gation, it is “whether counsel made a good faith and substantive effort” to rea- sonably inform their strategic and tactical decisions.25 The record demonstrates that TDC did investigate the case. As early as the 27 March 2024 motions hearing, TDC articulated some of the investigation ef- forts, including: reviewing hundreds of pages of documents; watching seven hours of video testimony from seven witnesses;26 visiting the Edson Range at Camp Pendleton and Marine Corps Recruit Depot San Diego; and interviewing numerous witnesses. TDC’s visit to the NCIS field office to review the case file three days before trial was a part of “final pretrial preparation . . . to review 21 R. at 139. 22 Appellant’s Brief at 15. 23 R. at 107-08. 24 United States v. Akbar, 74 M.J. 364, 386 (C.A.A.F. 2015). 25 Id. at 381. 26 R. at 18-19. 7  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court any additional notes that [NCIS] may have . . . .”27 Although TDC could have reviewed the case file sooner, failing to do so did not cause TDC’s representa- tion to fall below an objective standard of reasonableness. (2) Failure to attack the credibility of Recruit T.W. Appellant’s second area of focus is TDC’s alleged failure to challenge the credibility of several witnesses based on purported collusion and to challenge Recruit T.W.’s credibility based on alleged bias. Nothing in the record lends support to Appellant’s claim of collusion; therefore, we limit our analysis to his claim concerning Recruit T.W.’s credibility based on bias. Appellant argues that Recruit T.W. had a motive to fabricate her allegations and contends that TDC were deficient for failing to use available information to attack her credi- bility at trial. Even assuming the record supported a basis on which TDC could have explored potential bias, the decision not to pursue that line of impeach- ment does not fall below an objective standard of reasonableness. Instead, TDC pursued a different strategy to attack Recruit T.W.’s credibility. During the Defense case, TDC called a witness whose testimony directly contradicted Re- cruit T.W. Specifically, the Defense witness testified that she was present dur- ing the alleged incident and did not see Appellant grab a Marine recruit’s hand as Recruit T.W. had testified. TDC’s decision to focus on demonstrating that the alleged conduct did not occur, rather than pursuing an uncertain theory of Recruit T.W.’s potential bias, was a reasonable tactical choice falling well within the range of professionally competent assistance. b. The record provides no basis for the claim that TDC failed to raise the possibility of an alibi or impossibility defense. After a comprehensive review of the entire record, we find no evidentiary basis to support Appellant’s claim regarding an unraised alibi theory or a de- fense of impossibility. The record does not substantiate these claims or permit any reasonable inference that such defenses were available. c. As we have found TDC’s performance was not constitutionally defi- cient, we do not need to address the second prong of Strickland. However, if we were to do so, we would also find that any deficient perfor- mance by TDC was not prejudicial to Appellant. The issues Appellant com- plains of are extremely minor. Whatever minimal information TDC may have obtained through additional investigation, Appellant has failed to establish a reasonable probability that such information would have altered the outcome of the proceeding. Similarly, although Appellant’s proposed approach to chal- lenging T.W.’s credibility was not mutually exclusive of the approach employed 27 R. at 139. 8  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court by TDC, Appellant has not demonstrated that abandoning TDC’s chosen strat- egy in favor of his proposed approach would have yielded a more favorable re- sult. Appellant has failed to establish prejudice because the record does not support a reasonable probability of a different result but for the alleged errors. B. Appellant Did Not Suffer a Violation of the Right to Speedy Post- Trial Processing. 1. Applicable Law Appellant seeks relief due to an alleged failure to timely process his case after trial. In particular, he asks this Court to set aside the trial court’s find- ings and sentence with prejudice.28 We review Appellant’s claim to relief for post-trial delay de novo.29 Our analysis of whether post-trial delay constitutes a due process violation is guided by the four factors announced by the Supreme Court in Barker v. Wingo: “(1) the length of the delay; (2) the reasons for the delay; (3) the appel- lant’s assertion of the right to timely review and appeal; and (4) prejudice [to the appellant].”30 “No single factor is required for finding a due process viola- tion and the absence of a given factor will not prevent such a finding.”31 In Moreno, the Court of Appeals for the Armed Forces adopted the three types of cognizable prejudice identified by the Supreme Court in Barker, in the context of pretrial speedy trial rights and applied them to an appellant’s due process right to timely post-trial review: (1) oppressive incarceration; (2) “par- ticularized” anxiety and concern “that is distinguishable from the normal anx- iety experienced by prisoners awaiting an appellate decision”; and (3) impair- ment of the appellant’s grounds for appeal or ability to present a defense at a rehearing.32 “Of those, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire sys- tem.”33 In addition, where an appellant has not shown prejudice from the delay, we cannot find a due process violation unless the delay is so egregious as to 28 Appellant’s Brief at 37. 29 United States v. Anderson, 82 M.J. 82, 85 (C.A.A.F. 2022) (citing United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006)). 30 Moreno, 63 M.J. at 135 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). 31 Id. at 136 (citing Barker, 407 U.S. at 533). 32 See Id. at 138-40. 33 Barker, 407 U.S. at 532. 9  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court “adversely affect the public’s perception of the fairness and integrity of the mil- itary justice system.”34 2. Analysis “Post-trial review begins by determining whether there is a facially un- reasonable delay sufficient to trigger a due process analysis.”35 In total, 272 days elapsed between the military judge’s announcement of sentence and Ap- pellant receiving notice of his right to appeal. On day 135, the military judge held a post-trial Article 39(a) session because of concerns with Appellant’s clemency request. In the post-trial Article 39(a) session, the military judge of- fered Appellant the option to submit another clemency request to the CA under the correct R.C.M. or continue the post-trial process. The military judge ex- plained to Appellant that submitting a new clemency request would delay Ap- pellant’s eventual appeal. After consulting with Appellant, TDC informed the military judge that Appellant affirmatively requested correction of the clem- ency issue stating, “we would like the time to resubmit clemency.”36 Appellant now argues that the 272 days between the military judge’s an- nouncement of sentence and his notice of right to appeal is presumptively un- reasonable. Specifically, Appellant asks this Court to dismiss Appellant’s case with prejudice because the 272 days are facially unreasonable and the Barker factors weigh in his favor.37 Assuming without deciding that the 272-day delay between the military judge’s announcement of sentence and Appellant receiving notice of his right to appeal is facially unreasonable, we turn to the Barker factors. Under the first Barker factor, the length of the delay weighs in Appellant’s favor based on our assumption that the 272-day period was facially unreason- able. 272 days elapsed between announcement of the sentence and his notice of right to appeal. The reason for the delay is neutral, as both the Government and Appellant contributed to the delay. Regarding the third factor, Appellant acknowledges that he did not assert his right to a timely review and appeal. Finally, as to prejudice, we find he suffered no prejudice approaching any of the three cognizable forms recognized by the Supreme Court and adopted by 34 Anderson, 82 M.J. at 87-88 (citing United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)). 35 Anderson, 82 M.J. at 86 (citing Moreno, 63 M.J. at 136). 36 R. at 808. 37 See Appellant’s Brief at 26-37. 10  United States v. Burgess, NMCCA No. 202400485 Opinion of the Court Moreno for an appellant’s right to timely post-trial review. We therefore con- clude the Barker factors do not weigh in Appellant’s favor. As no due process violation occurred, Appellant is not entitled to relief. III. CONCLUSION After careful consideration of the record and briefs of appellate counsel, we have determined that the findings are correct in law, the sentence is correct in law and fact, and that no error materially prejudicial to Appellant’s substantial rights occurred.38 The findings and sentence are AFFIRMED. FOR THE COURT: MARK K. JAMISON Clerk of Court 38 Articles 59 & 66, UCMJ. 11