Petition for Writ of Certiorari — Rafael Verdejo Ruiz, Petitioner v. Derek Edge, Warden

Supreme Court briefMay 28, 2021

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APPENDIX

Hmteb Hbtateb Court of Appeals;

for tlje Jffftf) Circuit

United States Court of Appeals

Fifth Circuit

FILED

April 6, 2021

No. 19-40277

Summary Calendar .

Lyle W. Cayce

Clerk

Rafael Verdejo Ruiz,

Petitioner—Appellant,

versus

Derek Edge, Warden^ Federal Correctional Institution^ Texarkana,

Respondent—Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:18-CV-22

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

Rafael Verdejo Ruiz, federal prisoner # 17670-035, appeals the

dismissal of his 28 U.S.C. § 2241 petition as procedurally barred. Ruiz filed

the § 2241 petition to challenge his military court convictions and sentences

for rape of a person between the ages of 12 and 16; carnal knowledge with a

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

No. 19-40277

person between the ages of 12 and 16; and sodomy of a person between the

ages of 12 and 16. The district court dismissed the petition based on its

determination that Ruiz failed to exhaust the following § 2241 claims in the

military courts: (1) Ruiz’s constitutional rights were violated by the trial

court’s failure to instruct the jurors on the Government’s burden to disprove

the affirmative defense of mistake as to the victim ’ s age beyond a reasonable

doubt; (2) Ruiz’s adjudged sentence is not being honored thereby causing his

approved sentence to be enhanced; (3) trial counsel rendered ineffective

assistance by not objecting to the issues raised in claims one and two; (4)

appellate counsel rendered ineffective assistance by not raising issues one and

two on appeal; and (5) appellate counsel rendered ineffective assistance with

respect to Ruiz’s supplemental assignment of error with the Air Force Court

of Criminal Appeals in which he sought to raise ineffective assistance of trial

counsel claims. On appeal, Ruiz contends that he established cause and

prejudice to excuse the procedural default of those claims. He further

contends that the district court abused its discretion in dismissing his § 2241

petition without conducting an evidentiary hearing.

Federal courts have jurisdiction pursuant to § 2241 over petitions for

habeas corpus filed by individuals challenging military convictions. See Burns

v. Wilson, 346 U.S. 137,139 (1953). Before a petitioner convicted in military

court raises habeas claims before this court, he must exhaust his military

remedies. See Fletcher v. Outlaw, 578 F.3d 274, 276-77 (5th Cir. 2009);

Wickham v. Hall, 706 F.2d 713, 715 (5th Cir. 1983) (citing Schlesinger v.

Councilman, 420 U.S. 738, 758 (1975)). A district court’s dismissal of a

§ 2241 petition for failure to satisfy the exhaustion requirement is reviewed

for an abuse of discretion. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994).

Based on our review of the record and submissions, we are

unpersuaded that Ruiz demonstrated an excuse for the procedural default of

his claims based on ineffectiveness of appellate counsel, see Murray v. Carrier,

No. 19-40277

477 U.S. 478, 488 (1986), the purported loss of his trial record, see Saahir v.

Collins, 956 F.2d 115, 118 (5th Cir. 1992), actual innocence, see Reed v.

Stephens* 739 F.3d 753, 767 (5th Cir. 2014), or Martinez v. Ryan, 566 U.S. 1,

16-17 (2012). We are likewise unpersuaded by Ruiz’s arguments regarding

the forfeiture component of his sentence. See 10 U.S.C. § 858b.

Accordingly, Ruiz has failed to show that the district court abused its

discretion in dismissing his § 2241 petition for failure to exhaust his military

remedies without conducting an evidentiary hearing. See Fletcher, 578 F.3d

at 276-77; Fuller, 11 F.3d at 62; United States v. Bartholomew, 974 F.2d 39, 41

(5th Cir. 1992).

We will not review the plethora of new claims Ruiz has raised for the

first time in the many briefs and motions he has filed before this court. See

Fillingham v. United States, 867 F.3d 531, 539 (5th Cir. 2017). Accordingly,

the district court’s dismissal of Ruiz’s § 2241 petition is AFFIRMED. With

the exception of Ruiz’s motion to supplement his reply brief, which is

GRANTED, all outstanding motions are DENIED.

APPENDIX

UNITED STATES v. Technical Sergeant RAFAEL VERDEJO-RUIZ. United States Air Force

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

2013 CCA LEXIS 680

ACM 37957

July 18, 2013, Decided

Notice:

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL RELEASE.

Editorial Information: Subsequent History

Motion granted by United States v. Verdeio-Ruiz. 73 M.J. 45, 2013 CAAF LEXIS 1048 (C.A.A.F., Sept.

9, 2013)Review dismissed by, Without prejudice, Motion granted by, Motion denied by, As moot United

States v. Verdeio-Ruiz. 2013 CAAF LEXIS 1335 (C.A.A.F., Nov. 12, 2013)Decision reached on appeal

by, On reconsideration by United States v. Verdeio-Ruiz. 2014 CCA LEXIS 607 (A.F.C.C.A., Aug. 14,

2014)Review denied by United States v. Verdeio-Ruiz, 74 M.J. 328, 2015 CAAF LEXIS 902 (C.A.A.F.,

Mar. 26, 2015)Magistrate's recommendation at, Habeas corpus proceeding at Ruiz v. Warden Edge,

2018 U.S. Dist. LEXIS 222281 (E.D. Tex., Dec. 13, 2018)

Editorial Information: Prior History

Sentence adjudged 25 February 2011 by GCM convened at Tyndall Air Force Base, Florida. Military

Judge: W. Thomas Cumbie. Approved Sentence: Dishonorable discharge, confinement for 25 years, and

reduction to E-1.

For the Appellant: Major Shane A. McCammon (argued); Major Scott W.

Counsel

Medlyn.

For the United States: Major Daniel J. Breen (argued); Colonel .

Don M. Christensen; Lieutenant Colonel C. Taylor Smith; and Gerald R. Bruce, Esquire.

Judges: Before GREGORY, HARNEY, and SOYBEL, Appellate Military Judges.

CASE SUMMARYServicemember’s confession to sexual conduct with a child was voluntary and thus

properly admitted since investigators' promises not to reveal the conduct to his wife were not promises to

keep his statements in confidence, and a prohibition of visitation by the servicemember's children did not

constitute cruel and unusual punishment.

OVERVIEW: HOLDINGS: [1]-A servicemember's confession to sexual conduct with a child was voluntary

and thus properly admitted since investigators' promises not to reveal the conduct to his wife were not

promises to keep his statements in confidence, the servicemember was advised that the statements

could be used against him at trial, and there was no evidence of any coercion; [2]-A specification

charging the servicemember with indecent acts upon a child under Unif. Code Mil. Justice art. 134, 10

U.S.C.S. § 934, failed to allege the terminal element that the conduct was prejudicial to good order and

discipline or service discrediting, and nothing in the record provided any notice of the element; [3]-A

prohibition of visitation by the servicemember's children did not constitute cruel and unusual punishment

milcase

and terms and conditions of the Matthew Bender Master Agreement.

since the partial restriction was in accordance with brig rules concerning child sex offenders.

OUTCOME: Findings set aside in part and affirmed in part, and sentence affirmed.

LexisNexis Headnotes

Military & Veterans Law > Military Justice > Motions > Suppression

Military & Veterans Law > Military Justice > Evidence > Admissions & Confessions

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

A military appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of

discretion. Whether a confession was voluntary is a question of law that the court reviews de novo. A

military judge's findings of fact are reviewed for clear error.

Military & Veterans Law > Military Justice > Evidence > Admissions & Confessions

A servicemember’s confession is involuntary, and thus inadmissible, if it was obtained in violation of the

self-incrimination privilege or due process clause of the Fifth Amendment to the Constitution of the

United States, Unif. Code Mil. Justice art. 31,10 U.S.C.S. § 831, or through the use of coercion, unlawful

influence, or unlawful inducement. The prosecution bears the burden of establishing a voluntary

confession by a preponderance of the evidence.

Military & Veterans Law > Military Justice > Evidence > Admissions & Confessions

To determine the lawfulness of a confession, a military appellate court must examine the totality of the

surrounding circumstances. In assessing whether a servicemember's will was over-borne in a particular

case, the court assesses the totality of all the surrounding circumstances-both the characteristics of the

accused and the details of the interrogation. Some factors taken into account in determining

voluntariness have included the youth of the servicemember, his lack of education, his low intelligence,

the lack of advice on his constitutional rights, the length of detention, the repeated and prolonged nature

of the questioning, and the use of physical punishment such as the deprivation of food or sleep. The

court must determine the factual circumstances surrounding the confession, assess the psychological

impact on the servicemember, and evaluate the legal significance of how the servicemember reacted.

Military & Veterans Law > Military Justice > Evidence > Admissions & Confessions

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

If a servicemember's confession is found involuntary, a military appellate court must set aside the

conviction unless it is determined that the error in admitting the confession was harmless beyond a

reasonable doubt.

Military & Veterans Law > Military Justice > Evidence > Admissions & Confessions

Promises are considered only a factor in the equation; they are not of themselves determinative of

involuntariness of a servicemember’s confession.

Military & Veterans Law > Military Justice > Evidence > Weight & Sufficiency

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

Under Unif. Code Mil. Justice art. 66(c), 10 U.S.C.S. § 866(c), a military appellate court reviews issues of

milcase

and terms and conditions of the Matthew Bender Master Agreement.

legal and factual sufficiency de novo. The test for factual sufficiency is whether, after weighing the

evidence in the record of trial and making allowances for not having personally observed the witnesses,

the court is itself convinced of a servicemember's guilt beyond a reasonable doubt. Review of the

evidence is limited to the entire record, which includes only the evidence admitted at trial and exposed to

the crucible of cross-examination. § 866(c).

Military & Veterans Law > Military Offenses > General Article > Categories of Offenses > General

Overview

Military & Veterans Law > Military Justice > Pretrial Proceedings > Charges

Notice of the terminal element of an offense under Unif. Code Mil. Justice art. 134, 10 U.S.C.S. § 934,

i.e., that conduct is prejudicial to good order and discipline or service-discrediting, is an essential part of

due process as a servicemember must know and fully understand the offenses against which he must

defend.

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

The law requires a military appellate court to evaluate the fairness of a servicemember’s trial using the

cumulative error doctrine. The court is required to evaluate the errors against the background of the case

as a whole, paying particular weight to factors such as: the nature and number of the errors committed;

their interrelationship, if any, and combined effect; how the trial court dealt with the errors as they arose

(including the efficacy of any remedial efforts); and the strength of the government's case.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual

Punishment

Military & Veterans Law > Military Justice > Sentencing > Cruel & Unusual Punishment

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

A military appellate court reviews de novo whether alleged facts constitute cruel and unusual

punishment. The Eighth Amendment prohibits two types of punishments: (1) those incompatible with the

evolving standards of decency that mark the progress of a maturing society; or (2) those which involve

the unnecessary and wanton infliction of pain.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual

Punishment

Military & Veterans Law > Military Justice > Sentencing > Cruel & Unusual Punishment

A violation of the Eighth Amendment is shown by demonstrating: (1) an objectively, sufficiently serious

act or omission resulting in the denial of necessities; (2) a culpable state of mind on the part of prison

officials amounting to deliberate indifference to a servicemember's health and safety; and (3) that the

servicemember has exhausted the prisoner-grievance system and that he has petitioned for relief under

Unif. Code Mil. Justice art. 138, 10 U.S.C.S. § 938.

Military & Veterans Law > Military Justice > Sentencing > General Overview

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

Before reassessing a sentence, A military appellate court must be confident that, absent any error, the

sentence adjudged would have been of at least a certain severity. Ultimately, a sentence can be

reassessed only if the court confidently can discern the extent of the error's effect on the sentencing

authority's decision. If the court cannot determine that the sentence would have been at least of a certain

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and terms and conditions of the Matthew Bender Master Agreement.

magnitude, the court must order a rehearing.

Opinion

PER CURIAM:

At a general court-martial comprised of officer and enlisted members, the appellant was convicted,

contrary to his pleas, of one specification each of: rape of a person between the ages of 12 and 16,

carnal knowledge with a person between the ages of 12 and 16, sodomy of a person between the

ages of 12 and 16, and indecent acts upon the body of a female under the age of 16, in violation of

Articles 120, 125, 134, UCMJ, 10 U.S.C. 920, 925, 934. He was sentenced to a dishonorable

discharge, confinement for 25 years, forfeiture of all pay and allowances, and reduction to the grade

of E-1.

On appeal, the appellant raises eight issues:1 (1) The military judge erred by denying his motion to

suppress involuntary statements made after law enforcement agents promised him confidentiality;

(2) His convictions are factually insufficient; (3) The Article 134, UCMJ, specification fails to state an

offense; (4) Trial counsel committed reversible error by making false assertions of material fact and

prosecutorial misconduct; (5) His Fifth2 and Fourteenth Amendments rights were violated when the

alleged victim committed perjury and fraud on the court during her testimony; (6) The findings and

sentence should be set aside under the cumulative error doctrine; (7) The U.S. Disciplinary Barracks'

refusal to allow him visitation with his children is illegal considering (a) he did not commit any offense

against his own children, (b) he was issued a meritless no-contact order, and (c) the U.S. Disciplinary

Barracks' administrative system improperly lists him as single with no dependents; and (8) His

court-martial wrongfully included charges of carnal knowledge and indecent acts.

Background

In July 2004, CL was thirteen years old. During that time, she visited family in Oklahoma, including

her step-father's cousin and cousin-in-law, Mrs. Verdeio and the appellant. CL became close with

Mrs. Verdeio and spent a lot of time with her and the appellant watching movies, visiting, and going

to the pool. CL claimed that, during this visit, the appellant committed the acts that led to the charges

against him. These acts occurred in the house, either when Mrs. Vedejo was sleeping or not at home,

and once in a car.

CL did not tell anyone about these acts until approximately six years later when she told a friend.

The Air Force Office of Special Investigations (OSI) investigated and interviewed the appellant on 9

September 2010. The resulting confession is the subject of his first issue on appeal.

The interview was videotaped and transcribed. The agents read the appellant his Article 31, UCMJ,

10 U.S.C. § 831, rights from a printed card and allowed him to read along. The appellant

acknowledged his rights, declined a lawyer, and agreed to answer questions. After a rapport building

session, the agents confronted the appellant about an allegation that he sexually assaulted CL. The

appellant initially maintained that he didn't remember doing anything sexual with CL because it was a

long time ago, but eventually admitted that he "did commit a stupid action" in that he "was going to

sleep with somebody." The appellant eventually stated that he cheated on his wife but couldn't

remember with whom.

After more questioning, the appellant admitted that he’had sex with someone in his Cadillac, and it

was either CL or a Senior Airman named Amanda. Eventually, after some more prodding, the

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and terms and conditions of the Matthew Bender Master Agreement.

appellant admitted that it was CL who he had sex with in his car. In his post-interview written

statement, the appellant wrote that he "ran out in [his] car with [CL] and had brief intercourse inside

the car." He also admitted that he was going to tell his wife about the incident until he learned of CL's

age. The appellant only admitted to having sex with CL on the one occasion in his car. Other than

that, he only admitted to kissing her a few times.

At trial, the defense motioned to suppress the confessions because they’d been given under a

promise of confidentiality by the two OSI agents. The appellant points to five specific instances

during the interview to exemplify where one or the other agent made the promises:

"Like I said, what you say here stays with us. We don’t go around telling everyone what you say

and everything else.”

"You don't have to worry about anything you say with us. Like I said, we are not trying to throw

you up by a stake or anything else."

"Everything that stays in this room, stays in this room."

"I am not going to tell your wife about it either, you know.... I am not going to tell anybody. . . .’’

"See, the thing about our office here is when we talk to people, we don't share information with

other people.”

On the motion to suppress, the appellant testified that he believed these comments convinced him

that no matter what he said to the OSI agents, they would keep it to themselves. He further testified

that he believed that the OSI agents would only submit a report to his commander indicating whether

he was being honest or not, and nothing more. According to the appellant, he also believed that the

agents promised him confidentiality, so he merely agreed with their allegations in order to leave the

interview and get on with his life.

The military judge denied the motion and made findings of facts. Regarding the appellant's

testimony, the military judge stated, "[t]he court finds this testimony to be totally, completely, and

unequivocally without merit." The military judge went on to acknowledge the possibility that the

agents' statements, standing alone and taken out of context, might have reasonably implied a

promise of confidentiality, but not when taken in the context of the entire conversation and under the

totality of the circumstances. Pointing out that three of the statements were made in response to the

appellant's concern about his wife learning of the details of his infidelity with CL, the military judge

did not construe from them a promise of confidentiality. Additionally, he viewed the other two

statements as "tiny snippets of a lengthy discourse by the agents, which given the context of the

conversation, could not reasonably be construed as a promise of confidentiality." Ultimately, the

military judge concluded that "the defense [] cherry picked five very short innocuous statements . . .

[which].. . taken individually, or collectively, cannot reasonably be construed as a promise of

confidentiality."

-v

Appellant's Motion to Suppress Involuntary Statements

We review a military judge's ruling on a motion to suppress for an abuse of discretion. United States

v. Freeman, 65 M.J. 451,453 (C.A.A.F. 2008). Whether a confession was voluntary is a question of

law that we review de novo. Arizona v. Fulminante, 499 U.S. 279, 287,111 S. Ct. 1246, 113 L. Ed.

2d 302 (1991); United States v. Bresnahan, 62 M.J. 137, 141 (C.A.A.F. 2005); United States v.

Bubonics, 45 M.J. 93, 94 (C.A.A.F. 1996); United States v. Martinez, 38 M.J. 82, 86 (C.M.A. 1993). A

military judge's findings of fact are reviewed for clear error. United States v. Alameda, 57 M.J. 190,

198 (C.A.A.F. 2002).

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and terms and conditions of the Matthew Bender Master Agreement.

Freeman is instructive on the issue of whether a confession is voluntary. The Freeman Court stated

that "a confession is involuntary, and thus inadmissible, if it was obtained 'in violation of the

self-incrimination privilege or due process clause of the Fifth Amendment to the Constitution of the

United States, Article 31, or through the use of coercion, unlawful influence, or unlawful

inducement."' Id. at 453 (citing Mil. R. Evid. 304(a), (c)(3); Article 31(d), UCMJ). The prosecution

bears the burden of establishing a voluntary confession by a preponderance of the evidence. Id.

(citing Bubonics, 45 M.J. 93).

To determine the lawfulness of a confession, we must examine "the totality of the surrounding

circumstances." Freeman, 65 M.J. at 453 (citing Bubonics, 45 M.J. at 95). In assessing whether a

defendant's will was "over-borne in a particular case," the Court assesses "the totality of all the

surrounding circumstances-both the characteristics of the accused and the details of the

interrogation." Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed.

2d 854 (1973)). Some factors taken into account in determining voluntariness have included the

youth of the accused, his lack of education, his low intelligence, the lack of advice on his

constitutional rights, the length of detention, the repeated and prolonged nature of the questioning,

and the use of physical punishment such as the deprivation of food or sleep. Id. (citations omitted).

The Court must determine the factual circumstances surrounding the confession, assess the

psychological impact on the accused, and evaluate the legal significance of how the accused

reacted. Id. See also Schneckloth, 412 U.S. at 226.

If a confession is found involuntary, the Court must set aside the conviction unless it is determined

that the error in admitting the confession was harmless beyond a reasonable doubt. Freeman, 65

M.J. at 453 (citing Fulminante, 499 U.S. at 285).

Further, the Court in Freeman stated that there has been considerable controversy over the

treatment of threats and promises in assessing the voluntariness of a confession. Id. at 455. Before

Fulminante, a confession "'obtained by any direct or implied promises, however slight,"' was not

voluntary. Id. (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 42 L. Ed. 568

(1897)).

Since Fulminante, though, "promises are considered only a factor in the equation; they are not of

themselves determinative of involuntariness." Id. (citing United States v. Gaskin, 190 Fed. Appx.

204, 206 (3d Cir. 2006); United States v. Jacobs, 431 F.3d 99, 109 (3d Cir. 2005)).

We have reviewed both the video recording of the confession and its transcript. These items as well

as our review of the record convince us the military judge did not abuse his discretion when he

denied the appellant's motion to suppress his confession.

It is clear that the OSI agents' statements were made in response to the appellant's express concerns

about his wife finding out about his actions. In the context of the interview, it is obvious the OSI

agents' comments were limited to that specific concern and were not general commitments that they

would forever keep his statements in confidence, never to be revealed to anyone. The military judge

, also rejected, as do we, the appellant's stated belief that the OSI agents would only submit a report

to his commander indicating whether the appellant was being honest or not and nothing more. Not

only did the agents read the appellant his Article 31, UCMJ, rights at the beginning of the interview,

they also had him read along. Moreover, they had him read and initial those same rights on the

written statement form as well, and had him hold up his hand and swear that the written statements

were the truth before he signed it. Both times he was advised that he could remain silent and any

statement he made could be used against him in a trial or other disciplinary or administrative forum.

He said he understood both warnings. Additionally, towards the end of the interview he asked if he

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and terms and conditions of the Matthew Bender Master Agreement.

would be facing a court-martial because of what he confessed to. This question conflicts with his

assertion at trial that he thought everything he said during the interview would be kept confidential.

Further, the appellant was a Technical Sergeant with 10 years of active duty experience and had an

excellent performance record. The entire interview lasted approximately three and one half hours

and the appellant was offered breaks, food, and water. He was never handcuffed and, in fact, was

merely asked to come to the OSI office on his own. He was not escorted or told he could not leave.

He was allowed to type his own written statement and was left alone while he did so. At the end of

the interview he even complimented the OSI agents for not being rude or overbearing.4 These facts

simply do not square with his assertions at trial and now on appeal that he thought anything he said

during his OSI-conducted interview would remain confidential and his confession was involuntary.

Given the context in which the OSI agents made the statements at issue, we are convinced they did

not overcome the appellant's will or cause him to provide his statement involuntarily. They were

limited in nature to assure the appellant that the agents would not tell his wife what he told them

during the interview. Applying the standards cited above, we agree with the military judge's ruling.

We find that the appellant's will was not overborne and his confession was voluntarily given.

Factual Sufficiency

The appellant also avers that his convictions for rape, carnal knowledge, forcible sodomy, and

indecent acts with a child are factually insufficient.

Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of legal and factual sufficiency de

novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual sufficiency

is "whether, after weighing the evidence in the record of trial and making allowances for not having

personally observed the witnesses, [we] are [ourselves] convinced of the accused's guilt beyond a

reasonable doubt." Turner, 25 M.J. at 325. Review of the evidence is limited to the entire record,

which includes only the evidence admitted at trial and exposed to the crucible of cross-examination.

Article 66(c), UCMJ; United States v. Bethea, 22 C.M.A. 223, 46 C.M.R. 223, 224-25 (C.M.A. 1973).

Having reviewed the entire record, including the appellant's confession and the victim's testimony,

we are convinced the appellant's convictions are factually sufficient.5 The victim provided detailed

testimony of the events that transpired. The defense tried to show these events were implausible, but

in the end the members, who heard all of the witnesses, believed the victim's account. Her

testimony, and the appellant's confession, provided sufficient facts to support the conviction.

Failure to State an Offense

Notice of the terminal element of an Article 134, UCMJ, offense is an essential part of due process

as an accused must know and fully understand the offenses against which he must defend. See

United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012); United States v. Ballan, 71 M.J. 28

(C.A.A.F. 2012); United States v. Foster, 70 M.J. 225 (C.A.A.F. 2011).

Charge III and its Specification alleged a violation of Article 134, UCMJ, in that the appellant

committed indecent acts upon the victim, a female under the age of 16, not his wife, by committing

certain acts upon her with the intent to gratify his sexual desires. The Specification did not allege one

of the three possible terminal elements: prejudice to good order and discipline, service discrediting;

or a crime or offense not capital. The appellant did not contest this specification at trial.

The only mention of any of the terminal elements during the trial was by the prosecutor during

closing arguments when, after recounting the facts alleged in the Specification, he argued to the jury

that, "It should take you about five seconds to realize that committing these horrible acts on an Air

Force Installation on a 13-year-old child is prejudicial to good order and discipline in the United

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and terms and conditions of the Matthew Bender Master Agreement.

States Air Force." The defense did not address this point during their argument.

The Government argues that the prosecution cited the terminal element during its closing argument,

which "was simply understood to be necessarily inherent in an offense where a military member

sexually assaults a 13-year-old civilian on base and against her will." It also argues that the appellant

had notice because the Article 32, UCMJ, investigator spelled out the elements and the evidence

used to support them. However, the Article 32, UCMJ, report states that the conduct involved "was to

the prejudice of good order and discipline or of a service discrediting nature." (Emphasis added.). It

never focused on one theory or the other. We do not believe this constitutes notice of the terminal

element for an Article 134, UCMJ, offense as our superior court requires in Humphries, Foster, and

Ballan. Further, the Government does not explain why the "prejudicial to good order and discipline"

element is any more "necessarily inherent" than the "service discrediting nature" element.

Under Humphries, notice of the missing element must be "somewhere extant in the trial record, or [ ]

the element [must] be 'essentially uncontroverted.'" Humphries, 71 M.J. at 215-216 (citing United

States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002); Johnson v. United States,

520 U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)). Here, the appellant pled not guilty. This

left the Government to prove all of the elements of the offense, including the terminal element. But

the question left open was which terminal element should the appellant defend against? The

Government relies on the prosecutor’s mention of the terminal element in the closing argument to

show that notice is "extant on the record." However, as this was addressed only after the close of

evidence during closing argument, it is hard to see how this can constitute notice. Notice is a due

process device that enables the preparation of a defense. As our superior court alluded to in

Humphries, it is impossible to accept an argument that mentioning the terminal element for the first

time after the evidence has been submitted to the members enabled the appellant to know which

Clause he had to defend against. Id. at 216 n.9.

Under the guidance provided by our superior court, we hold it was plain and obvious error to omit the

terminal element from the Specification alleging indecent acts under Article 134, UCMJ, and that

error prejudiced the appellant's substantial right to notice. See Id. at 213-17 (citations omitted).

Accordingly, we must dismiss the finding of guilty for Charge III and its Specification.

Prosecutorial Misconduct & Perjury

We have considered the appellant's fourth and fifth assigned errors, raised pursuant to United States

v. Grostefon, 12 M.J. 431 (C.M.A 1982), and find them meritless.

We have reviewed the appellant's claim of prosecutorial misconduct under the standards of United

States v. Hatpin, 71 M.J. 477 (C.A.A.F. 2013), United States v. Edmond, 63 M.J. 343, 347 (C.A.A.F.

2006), and United States v. Argo, 46 M.J. 454, 457 (C.A.A.F. 1997). In doing so we have examined

the fairness of the trial and not the culpability of the prosecutor. We have paid special attention to

the "overall effect of counsel's conduct on the trial, and not counsel's personal blameworthiness."

United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003). Having examined the prosecutor's

conduct as well as the fairness of this trial, we find the appellant's claim to be meritless.

Regarding the victim's testimony, the appellant claims she committed perjury by pointing to

statements in the Article 32, UCMJ, investigation which he claims could be used to contradict her. He

then relates this back to his argument that the evidence was insufficient to support a conviction. We

have already addressed the issue of factual sufficiency above and there is no need to rehash it a

second time. The members heard the testimony of all of the witnesses including any

cross-examination by the opposing side. It was their duty to determine the facts and that is what they

did. See United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); United States v. Garwood, 20 M.J.

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148 (C.M.A. 1985), Rule for Courts-Martial 502(a)(2). The appellant's essentially argues that the

victim should not be believed because she was lying. However, at trial the defense subjected her to

a fierce and tough cross-examination. The members simply believed her. We find no merit to the

appellant's claim.

Cumulative Error

The appellant avers that the cumulative errors that occurred at trial should compel us to set aside the

findings and sentence. In this argument, the appellant raises eight errors, some with several

subparts, which were made during the trial.

As our sister court observed, the law "requires us to evaluate the fairness of the appellant's trial using

the cumulative error doctrine." United States v. Parker 71 M.J. 594, 630 (N.M. Ct. Crim. App. 2012)

(citing United States v. Dollente, 45 M.J. 234, 242 (C.A.A.F. 1996); United States v. Banks, 36 M.J.

150, 171 (C.M.A. 1992)). As the Parker court stated, Dollente requires us to evaluate the errors

"against the background of the case as a whole, paying particular weight to factors such as the

nature and number of the errors committed; their interrelationship, if any, and combined effect; how

the [trial] court dealt with the errors as they arose (including the efficacy-of any remedial efforts); and

the strength of the government's case.” Id.

Some of the errors alleged by the appellant include supposed errors by the military judge in his

instructions, misstatements of the evidence by the prosecutor, the denial of the right to an educated

jury due to the prosecutor's failure to present expert testimony on child behavior that would favor the

appellant's case, and that a testifying OSI agent was allowed to give human lie detector testimony.

We have reviewed the appellant's allegations and find no error, but merely rulings and decisions

made well within the sound discretion of the military judge, which the appellant would have made

differently had he been the judge. There was ample evidence of the appellant's guilt, and there were

no errors that materially prejudiced his substantial rights. Under these circumstances and applying

the law as discussed above, the appellant was not denied a fair trial and the cumulative error

doctrine is not applicable. United States v. Pope, 69 M.J. 328, 335 (C.A.A.F. 2011); Dollente, 45 M

.J. at 242.

Visitation Rights

Citing United States v. Ouimette, 52 M.J. 691 (C.G. Ct. Crim. App. 2000), the appellant claims the

Fort Leavenworth Disciplinary Barracks' (USDB) refusal to allow him visitation rights with his children

was illegal as constituting a "harsher, excessive sentence and punishment" because (1) he did not

commit any offense against his own children, (2) he was issued a meritless no-contact order, and (3)

the USDB administrative system improperly lists him as single with no dependents. The appellant

has submitted documents indicating he is under a blanket restriction from having any visitation and

from making any contact with his own children (even indirectly through contact via his wife).6 He

sent a request to the Commandant for an exception to this policy but was denied. He filed a

complaint with the Inspector General, and although he states he has filed a complaint pursuant to

Article 138, UCMJ, 10 USC § 938, the record lacked any other indication or evidence of this

assertion.7

We review de novo whether alleged facts constitute cruel and unusual punishment. United States v.

Lovett, 63 M.J. 211 (C.A.A.F. 2006). As our superior court in Lovett noted, "the Eighth Amendment

prohibits two types of punishments: (1) those 'incompatible with the evolving standards of decency

that mark the progress of a maturing society' or (2) those 'which involve the unnecessary and wanton

infliction of pain.' We apply the Supreme Court's interpretation of the Eighth Amendment in the

absence of any legislative intent to create greater protections in the UCMJ." Id. at 215 (citations

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omitted). Except for specific situations not applicable to this case, Article 55, UCMJ, 10 U.S.C. §

855, is coterminous with the Eighth Amendment,8 and we will apply that standard to both provisions.

United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007); United States v. Matthews, 16 M.J. 354 (C.M.A.

1983):

A violation of the Eighth Amendment is shown by demonstrating: "(1) an objectively, sufficiently

serious act or omission resulting in the denial of necessities; (2) a culpable state of mind on the part

of prison officials amounting to deliberate indifference to [the appellant's] health and safety; and (3)

that he has exhausted the prisoner-grievance system ... and that he has petitioned for relief under

Article 138, UCMJ." Lovett, 63 M.J. at 215 (omission in original) (citations omitted).

Applying these standards, we find no violation of the Eighth Amendment or Article 55, UCMJ. The

appellant's complaint does not amount to a serious act or omission resulting in a denial of

necessities. Typically, these are things such as denial ,of needed medical attention, proper food, or

sanitary living conditions. Physical abuse may also qualify. See United States v. Avila, 53 M.J. 99,

101 (C.A.A.F. 2000). The appellant's deprivation is not of the caliber that triggers Eighth Amendment

protection. It is more akin to routine conditions associated with punitive or administrative segregation

such as restriction of contact with other prisoners, of exercise outside a cell, of visitation privileges,

of telephone privileges, and/or of reading material. Id. at 102. We also note that not all visitation or

outside contact was withheld from the appellant, just a certain segment of it. This partial, rather than

full, restriction on the appellant's ability to communicate with friends and family also supports the

[GJovernment's case. See Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987);

Henderson v. Terhune, 379 F.3d 709 (9th Cir. 2004). Also, the appellant has not shown the

Commanding Officer acted with a culpable state of mind. The commander did not arbitrarily select

the appellant and deny him contact with minors. He was acting pursuant to, and enforcing, the Brig

rules.

We emphasize that the USDB rules about visitation with children are enforced for the protection of

minors. That the appellant has to undergo a strict screening policy before being granted permission

to visit his children is an administrative safeguard to protect minor juveniles from those convicted of

child sex crimes. It is not an additional punishment or a method of enhancing the sentence already

adjudged. Accordingly, we find no merit to the appellant's claim.

Propriety of Charges

The appellant argues that the offenses of carnal knowledge and indecent acts were improperly

charged and should be dismissed because the legal actions to bring him to trial on these offenses

occurred after 1 October 2007. According to the appellant, Executive Order 13447 and the 2006

National Defense Authorization Act amended the Manual for Courts Martial (MCM), United States,

and eliminated these two offenses. He argues that because the Executive Order states that nothing

in the amendments would invalidate certain legal actions, to include investigations and referral of

charges, that began prior to 1 October 2007, and the legal actions that preceded the appellant's trial

occurred after that date, they were rendered invalid by the Executive Order because they occurred

too late.

This argument is without merit. Executive Order 13447 and the 2006 National Defense Authorization

Act did not eliminate these two offenses in the sense that no one could be prosecuted for them if

legal action began after 1 October 2007. The Executive Order merely incorporated the amendments

to Article 120, UCMJ, and other provisions. It did not bar prosecution of violations of the law as it was

written prior to the amendments and the Executive Order.

These offenses were all alleged as perpetrated against a child between the ages of 14 and 16 years

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old. As such, each has a 25 year statute of limitation and may be prosecuted any time with in that

period. Cf. United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). See Article 43, UCMJ, 10

U.S.C. § 843; Drafter's Analysis, MCM, A21-57, A27 (2012 ed.). The language cited by the appellant

in the Executive Order does not bar the offense from being prosecuted.

Sentence Reassessment

Having dismissed the Specification under Charge III, we must determine whether we are able to

reassess the sentence. Applying the analysis set forth in United States v. Buber, 62 M.J. 476

(C.A.A.F. 2006), United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), and United States v. Sales, 22

M.J. 305 (C.M.A. 1986), and carefully considering the entire record, we conclude that there has not

been a "dramatic change in the 'penalty landscape.'" United States v. Riley, 58 M.J. 305, 312

(C.A.A.F. 2003). At time of the appellant's conviction, the maximum sentence was life in

confinement, forfeiture of all pay and allowances, and reduction to E-1. Our dismissal of the Charge

and Specification does not change the maximum sentence.

Before reassessing a sentence, this Court must be confident "that, absent any error, the sentence

adjudged would have been of at least a certain severity." United States v. Sales, 22 M.J. 305, 308

(C.M.A. 1986). Ultimately, a sentence can be reassessed only if we "confidently can discern the

extent of the error's effect on the sentencing authority's decision." United States v. Reed, 33 M.J. 98,

99 (C.M.A. 1991). If we "cannot determine that the sentence would have been at least of a certain

magnitude," we must order a rehearing. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000); see

also United States v. Poole, 26 M.J. 272, 274 (C.M.A. 1988). Because the change to the appellant's

charges or sentencing landscape is not dramatic, we are confident in our ability to reassess the

sentence. The dismissed Charge and Specification carried the smallest maximum punishment of the

four with which the appellant was charged: seven years. Even with the dismissed Charge and

Specification the appellant is still guilty of rape, forcible sodomy, and carnal knowledge, all with a

child between the ages of 12 and 16. These offenses carried the same maximum punishment even

without the dismissed offense: a dishonorable discharge, confinement for life, forfeiture of all pay

and allowances, and reduction to the grade of E-1.

We are confident that the convening authority would have approved the same sentence.

Furthermore, we find, after considering the appellant's character, the nature and seriousness of his

offenses, and the entire record, that the reassessed sentence is appropriate,

Conclusion

We set aside and dismiss Charge III and its Specification and affirm the remaining findings and the

sentence as approved by the convening authority. The approved findings, as rfiodified, and the

sentence are correct in law and fact, and no error prejudicial to the substantial rights of the appellant

regarding the affirmed charges and specifications occurred. Articles 59(a) and 66(c), UCMJ, 10

U.S.C. §§ 859(a), 866(c). Accordingly, the findings, as modified, and the sentence, are

AFFIRMED.

Footnotes

Issues 4, 5, 6, and 8 were raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A 1982).

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U.S. Const, amend. V.

U.S. Const, amend. XIV.

These were not the exact words used by the appellant, but they convey his sentiment.

Though not specifically raised, we also find that the appellant’s convictions are legally sufficient. See

United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25

M.J. 324 (C.M.A. 1987)).

The Fort Leavenworth Disciplinary Barracks' regulations prevent him from seeing any children

without first obtaining an "exception to policy."

Even assuming he has submitted an Article 138, UCMJ, 10 U.S.C. § 938, complaint, our opinion

addressing the other issues remain the same.

U.S. Const, amend. VIII.

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APPENDIX

UNITED STATES v. Technical Sergeant RAFAEL VERDEJO-RUIZ. United States Air Force

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

2014 CCA LEXIS 607

ACM 37957 (recon)

August 14, 2014, Decided

Notice:

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL RELEASE.

Editorial Information: Subsequent History

Motion granted by United States v. Verdeio-Ruiz, 74 M.J. 82, 2014 CAAF LEXIS 1118 (C.A.A.F., Nov.

18, 2014)Motion denied by United States v. Verdeio-Ruiz, 74 M.J. 327, 2015 CAAF LEXIS 758

(C.A.A.F., Mar. 25, 2015)Motion denied by United States v. Verdeio-Ruiz. 75 M.J. 3, 2015 CAAF LEXIS

533 (C.A.A.F., June 4, 2015)Review denied by Verdeio-Ruiz v. United States, 75 M.J. 375, 2016 CAAF

LEXIS 547 (C.A.A.F., June 22, 2016)

Editorial Information: Prior History

Sentence adjudged 25 February 2011 by GCM convened at Tyndall Air Force Base, Florida. Military

Judge: W. Thomas Cumbie. Approved Sentence: Dishonorable discharge, confinement for 25 years, and

reduction to E-1.United States v. Verdeio-Ruiz. 2013 CCA LEXIS 680 (A.F.C.C.A., July 18, 2013)

For the Appellant: Major Shane A. McCammon (argued); Major Scott W.

Medlyn; and Captain Michael A. Schrama.

For the United States: Major Daniel J. Breen (argued); Colonel

Don M. Christensen; Lieutenant Colonel C. Taylor Smith; and Gerald R. Bruce, Esquire.

Judges: Before ALLRED, MITCHELL, and WEBER, Appellate Military Judges.

Counsel

CASE SUMMARYMilitary judge did not err when he denied appellant's motion to suppress his confession

because there was no promise of confidentiality made by Air Force Office of Special Investigations

agents; most if not all of the agents' statements were made in response to appellant's concerns about his

wife finding out about his actions with 13-year-old girl.

OVERVIEW: HOLDINGS: [1]-The military judge did not err when he denied appellant's motion to

suppress his confession because there was no promise of confidentiality made by the Air Force Office of

Special Investigations agents; when taken in the context of the totality of the circumstances, most if not

all of the agents' statements were made in response to appellant’s concerns about his wife finding out

about his actions; [2]-Appellant's convictions were factually sufficient because the victim provided

detailed and believable testimony about the events that transpired, and appellant's confession

corroborated some of her testimony; the defense was not able to establish any material contradictions or

inaccuracies in her testimony; [3]-lt was plain and obvious error to omit the terminal element from the

specification alleging indecent acts under Unif. Code Mil. Justice art. 134, U.S.C.S. § 934.

OUTCOME: Dismissed in part and affirmed in part.

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LexisNexis Headnotes

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

Military & Veterans Law > Military Justice > Motions > Suppression

A military judge's decision to deny a motion to suppress evidence is reviewed for an abuse of discretion.

"Abuse of discretion" is a term of art applied to appellate review of the discretionary judgments of a trial

court. An abuse of discretion occurs when the trial court's findings of fact are clearly erroneous or if the

court's decision is influenced by an erroneous view of the law. Further, the abuse of discretion standard

of review recognizes that a judge has a range of choices and will not be reversed so long as the decision

remains within that range.

Military & Veterans Law > Military Justice > Evidence > Admissions & Confessions

Military & Veterans Law > Military Justice > Pretrial Proceedings > Self-Incrimination Privilege

Generally, a confession is not admissible unless it has been made voluntarily, considering the totality of

the circumstances surrounding the confession. Mil. R. Evid. 304(a), Manual Courts-Martial. Military

justice jurisprudence holds that a statement made in response to a promise of confidentiality by law

enforcement agents may be inadmissible, because the promise of confidentiality nullifies the rights

advisement under Unif. Code Mil. Justice art. 31, 10 U.S.C.S. § 831. A rights advisement followed by a

promise of confidentiality amounts to no warning, as the assurance could only be interpreted to mean

that the statement would not be used in a subsequent trial. Statements made in response to a promise of

confidentiality are inadmissible, despite the provision of a rights advisement, where the promise induces

a belief in the mind of the accused that his disclosure will not be made the basis for a criminal

prosecution. Even an implied promise of confidentiality may render a confession inadmissible if it is the

causative factor for later confessions.

Military & Veterans Law > Military Justice > Pretrial Proceedings > Self-Incrimination Privilege

Military & Veterans Law > Military Justice > Evidence > Admissions & Confessions

Promises of confidentiality are substantially similar to promises of testimonial immunity. If an official with

either express or apparent authority promises a suspect that no prosecution will result if the suspect

confesses, courts will not hesitate to enforce that promise. Promises of confidentiality or immunity made

without authority are forms of unlawful inducement. A confession is involuntary, and thus inadmissible, if

it was obtained through the use of unlawful inducement. Mil. R. Evid. 304(a), (c)(3) Manual

Courts-Martial. Unif. Code Mil. Justice art. 31(d), 10 U.S.C.S. § 831(d). Under Freeman, promises are

considered only a factor in the equation; they are not of themselves determinative of involuntariness. In

determining whether an accused's will was over-borne in a particular case, a court assesses the totality

of all the surrounding circumstances, both the characteristics of the accused and the details of the

interrogation. Factors taken into account in determining voluntariness include the accused's age, level of

education, and intelligence, along with any advice provided to the accused concerning his constitutional

rights, the length of detention, the nature of the questioning, and the use or absence of physical

punishment such as the deprivation of food or sleep.

Military & Veterans Law > Military Justice > Evidence > Weight & Sufficiency

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

Under Unif. Code Mil. Justice art. 66(c), 10 U.S.C.S. § 866(c), an appellate court reviews issues of legal

and factual sufficiency de novo. The test for factual sufficiency is whether, after weighing the evidence in

the record of trial and making allowances for not having personally observed the witnesses, the appellate

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court is convinced of the accused's guilt beyond a reasonable doubt. Review of the evidence is limited to

the entire record, which includes only the evidence admitted at trial and exposed to the crucible of

cross-exam i nation.

Military & Veterans Law > Military Justice > Pretrial Proceedings > Charges

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of

Protection

Notice of the terminal element of a Unif. Code Mil. Justice art. 134, 10 U.S.C.S. § 934, offense is an

essential part of due process, as an accused must know and fully understand the offenses against which

he must defend. Whether a charge and specification state an offense and the remedy for such error are

questions of law that an appellate court reviews de novo. A specification states an offense if it alleges,

either expressly or by necessary implication, every element of the offense, so as to give the accused

notice and protection against double jeopardy. R.C.M. 307(c)(3), Manual Courts-Martial.

Military & Veterans Law > Military Justice > Pretrial Proceedings > Charges

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

When an appellant does not object to a missing terminal element at trial, an appellate court analyzes the

case for plain error. The failure to allege a terminal element is plain and obvious error that is forfeited

rather than waived. In the context of a plain error analysis of defective indictments, the appellant has the

burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error

materially prejudiced a substantial right of the appellant. In the plain error context, a defective

specification alone is insufficient to constitute substantial prejudice to a material right. Therefore,

reviewing courts look to the record to determine whether notice of the missing element is somewhere

extant in the trial record, or whether the element is essentially uncontroverted. If this is the case, the

charging error is considered cured and material prejudice is not demonstrated.

Military & Veterans Law > Military Justice > Pretrial Proceedings > Charges

Military & Veterans Law > Military Justice > Trials > Arguments on Findings

Identifying a theory of criminality during closing argument alone does not constitute sufficient notice to

find a lack of prejudice from omission of the terminal element on the charge sheet.

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

An appellate court reviews an appellant's claim of prosecutorial misconduct under the standards of

Halpin, Edmond, and Argo. The appellate court pays special attention to the overall effect of counsel's

conduct on the trial, and not counsel's personal blameworthiness.

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

An appellate court evaluates the fairness of an appellant's trial using the cumulative error doctrine.

Dollente requires the appellate court to evaluate the errors against the background of the case as a

whole, paying particular weight to factors such as the nature and number of the errors committed; their

interrelationship, if any, and combined effect; how the trial court dealt with the errors as they arose; and

the strength of the government's case.

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

Military & Veterans Law > Military Justice > Sentencing > Cruel & Unusual Punishment

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and terms and conditions of the Matthew Bender Master Agreement.

An appellate court reviews allegations of cruel and unusual punishment de novo.

Military & Veterans Law > Military Justice > Sentencing > Cruel & Unusual Punishment

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual

Punishment

The Eighth Amendment to the United States Constitution, U.S. Const, amend. VIII, prohibits two types of

punishments: (1) those incompatible with the evolving standards of decency that mark the progress of a

maturing society or (2) those which involve the unnecessary and wanton infliction of pain. An appellate

court applies the United States Supreme Court's interpretation of the Eighth Amendment in the absence

of any legislative intent to create greater protections in the Uniform Code of Military Justice. Unif. Code

Mil. Justice art. 55, 10 U.S.C.S. § 855, is coterminous with the Eighth Amendment, and courts apply that

standard to both provisions.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual

Punishment

Military & Veterans Law > Military Justice > Sentencing > Cruel & Unusual Punishment

A violation of the Eighth Amendment to the United States Constitution, U.S. Const, amend. VIII, is shown

by demonstrating: (1) an objectively, sufficiently serious act or omission resulting in the denial of

necessities; (2) a culpable state of mind on the part of prison officials amounting to deliberate

indifference to the appellant's health and safety; and (3) that he has exhausted the prisoner-grievance

system and that he has petitioned for relief under Unif. Code Mil. Justice art. 138, 10 U.S.C.S. § 938.

Military & Veterans Law > Military Justice > Sentencing > Cruel & Unusual Punishment

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual

Punishment

For the purpose of the Eighth Amendment to the United States Constitution, U.S. Const, amend. VIII,

serious acts or omissions include matters such as denial of needed medical attention, proper food,

sanitary living conditions, or even physical abuse.

Military & Veterans Law > Military Justice > Evidence > Privileges > Psychotherapist-Patient

Privilege

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a

confidential communication made between the patient and a psychotherapist or an assistant to a

psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was

made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.

Mil. R. Evid. 513(a), Manual Courts-Martial. However, no such privilege exists when the records are

constitutionally required. To prevent unnecessary disclosure of evidence of a patient's records or

communications, the military judge may issue protective orders or may admit only portions of the

evidence. Mil. R. Evid. 513(e)(4).

Military & Veterans Law > Military Justice > Evidence > Evidentiary Rulings

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

An appellate court reviews a military judge's decision to admit or exclude evidence for an abuse of

discretion.

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Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

Military & Veterans Law > Military Justice > Trials > Instructions > General Overview

Whether a military judge properly instructed the members is a question of law an appellate court reviews

de novo. However, where there is no objection to an instruction at trial, the appellate court reviews for

plain error.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Speedy Trial

Military & Veterans Law > Military Justice > Speedy Trial

Military & Veterans Law > Military Justice > Postconviction Proceedings > General Overview

Military & Veterans Law > Military Justice > Appeals & Reviews > Standards of Review

An appellate court reviews de novo whether an appellant has been denied his due process right to a

speedy post-trial review and whether any constitutional error is harmless beyond a reasonable doubt. A

presumption of unreasonable delay arises when appellate review is not completed and a decision is not

rendered within 18 months of the case being docketed before the appellate court. The Moreno standards

continue to apply as a case remains in the appellate process. The Moreno standard is not violated when

each period of time used for the resolution of legal issues between the appellate court and the superior

court is within the 18-month standard. However, when a case is not completed within 18 months, such a

delay is presumptively unreasonable and triggers an analysis of the four factors elucidated in Barker and

Moreno. Those factors are (1) the length of the delay; (2) the reasons for the delay; (3) whether the

appellant made a demand for a speedy trial; and (4) prejudice to the appellant. When there is no showing

of prejudice under the fourth factor, an appellate court will find a due process violation only when, in

balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the

public's perception of the fairness and integrity of the military justice system.

Military & Veterans Law > Military Justice > Postconviction Proceedings > General Overview

Military & Veterans Law > Military Justice > Speedy Trial

The Moreno speedy-trial standards continue to apply as a case continues through the appellate process.

The Moreno standard is not violated when each period of time used for the resolution of legal issues

between the appellate court and the superior court is within the 18-month standard.

Military & Veterans Law > Military Justice > Speedy Trial

Military & Veterans Law > Military Justice > Postconviction Proceedings > General Overview

Unif. Code Mil. Justice art. 66(c), 10 U.S.C.S. § 866(c), empowers appellate courts to grant sentence

relief for excessive post-trial delay without the showing of actual prejudice required by Unif. Code Mil.

Justice art. 59(a), 10 U.S.C.S. § 859(a). A non-exhaustive list of factors is considered in evaluating

whether art. 66(c) relief should be granted for post-trial delay. Among the non-prejudicial factors are the

length and reasons for the delay; the length and complexity of the record; the offenses involved; and the

evidence of bad faith or gross negligence in the post-trial process.

Opinion

Opinion by:

WEBER

Opinion

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OPINION OF THE COURT UPON RECONSIDERATION

WEBER, Judge:

At a general court-martial composed of officer and enlisted members, the appellant was convicted,

contrary to his pleas, of one specification each of rape of a person between the ages of 12 and 16;

carnal knowledge with a person between the ages of 12 and 16; forcible sodomy of a person between

the ages of 12 and 16; and indecent acts upon the body of a female under the age of 16, in violation

of Articles 120, 125, and 134, UCMJ, 10 U.S.C. 920, 925, 934. He was sentenced to a dishonorable

discharge, confinement for 25 years, forfeiture of all pay and allowances, and reduction to E-1. The

convening authority did not approve the adjudged forfeitures, but otherwise approved the sentence

as adjudged. 1

On appeal, the appellant raises 11 issues: (1) the military judge erred by denying his motion to

suppress involuntary statements made after law enforcement agents promised him confidentiality;

(2) his convictions are factually insufficient; (3) the Article 134, UCMJ, specification fails to state an

offense; (4) trial counsel committed reversible error by making false assertions of material fact and

by prosecutorial misconduct; (5) his Fifth2 and Fourteenths Amendment rights were violated when

the alleged victim committed perjury and fraud on the court during her testimony; (6) the findings and

sentence should be set aside under the cumulative error doctrine; (7) the United States Disciplinary

Barracks' (USDB) refusal to allow him visitation with his children is illegal considering (a) he did not

commit any offense against his own children, (b) he was issued a meritless no-contact order, and (c)

the USDB administrative system improperly lists him as single with no dependents; (8) his

court-martial wrongfully included charges of carnal knowledge and indecent acts; (9) the

Government and the military judge improperly denied the defense the ability to review the victim's

mental health and medical records; (10) the military judge's findings instructions erroneously stated

the burden of proof required to demonstrate force; and (11) he is entitled to relief for untimely

appellate review.4

Procedural History

On 25 June 2013, the Secretary of Defense, "[pjursuant to [his] authority under title 5, United States

Code, section 3101 et seq.," issued a memorandum that "appointed] Mr. Laurence M. Soybel, a

civilian employee of the Department of the Air Force, to serve as appellate military judge on the Air

Force Court of Criminal Appeals.” Memorandum from Sec'y of Def. Chuck Hagel for Sec'y of the Air

Force Eric Fanning (25 June 2013).

On 18 July 2013, we issued a decision in which we dismissed a charge and specification, but

affirmed the remaining findings and the sentence as approved by the convening authority. United

States v. Verdeio-Ruiz. ACM 37957, 2013 CCA LEXIS 680 (A.F. Ct. Crim. App. 18 July 2013)

(unpub. op.). This Court issued its opinion after hearing oral argument on the appellant's first

assigned issue, dealing with the defense's motion to suppress statements the appellant made after

law enforcement agents purportedly promised him confidentiality. Pursuant to his appointment by the

Secretary of Defense, Mr. Soybel was a member of that panel. The appellant then filed with this

Court a motion to vacate and petitioned our superior court for review. On 12 November 2013, our

superior court converted the appellant's motion to vacate into a motion for reconsideration. See

United States v. Verdeio-Ruiz. 73 M.J. 109, No. 14-0010/AF (Daily Journal 12 November 2013). On

15 April 2014, our superior court issued its decision in United States v. Janssen, 73 M.J. 221, 225

(C.A.A.F. 2013), holding that the Secretary of Defense did not have the legislative authority to

appoint civilian employees as appellate military judges, and that his appointment of Mr. Soybel to

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this Court was "invalid and of no effect."

In light of Janssen, we granted the motion for reconsideration on 29 April 2014 and permitted the

appellant to file a supplemental assignment of errors. The appellant actually filed two supplemental

errors, raising three issues not previously before this Court. We also granted the appellant's motion

for oral argument on the same issue previously argued to this Court. On 24 June 2014, well after the

deadline for supplemental briefs to be submitted in this case and after oral argument, the appellant

moved for leave to file yet another supplemental assignment of errors, alleging he received

ineffective assistance of counsel. Given that this Court had repeatedly allowed the appellant to raise

additional issues out of time during the lengthy appellate processing of this matter, and given that the

appellant made no attempt to explain why this latest issue could not have been raised earlier, we

denied the appellant's motion to submit this latest supplemental assignment of errors.

With a properly constituted panel, we have reviewed the appellant's case, to include the appellant's

previous and current filings, oral argument, and the previous opinion issued by this Court.

Background

The charged acts took place in or around July 2004. At that time, then 13-year-old CL visited with

family members in Oklahoma. She resided with her grandparents, but she frequently visited her

step-father's cousin, Mrs. LV, and Mrs. LV's husband, the appellant. She sometimes spent the night

at the appellant's home and considered herself to have a close relationship with Mrs.’LV. CL helped

Mrs. LV and the appellant prepare for their wedding ceremony at the end of July, which would

formally celebrate their marriage that took place two years earlier.

During the days leading up to the wedding ceremony, CL stated the appellant committed four sexual

acts against her, all contrary to her will. Three such incidents took place in the house, either when

Mrs. LV was sleeping or not home. The final such incident took place the night before the wedding

ceremony, when the appellant took CL away from decorating for the reception and engaged in sexual

intercourse with her in his car.

CL did not tell anyone about these acts until approximately six years later, when she confided in a

friend and then a family member. The Air Force Office of Special Investigations (AFOSI) was

notified of the allegation and investigated the matter.

Further facts relevant to each assignment of error are discussed below.

Appellant's Motion to Suppress Involuntary Statements

AFOSI agents interviewed the appellant. The interview was videotaped and transcribed. The agents

read the appellant his Article 31, UCMJ, 10 U.S.C. § 831, rights from a printed card and allowed him

to read along. The appellant acknowledged his rights, declined a lawyer, and agreed to answer

questions. After a rapport-building session, the agents confronted the appellant about an allegation

that he sexually assaulted CL. The appellant initially maintained that he did not remember doing

anything sexual with CL because it was a long time ago, but eventually admitted that he "did commit

a stupid action” in that he "was going to sleep with somebody." The appellant eventually stated that

he cheated on his wife but could not remember with whom he did so.

After more questioning, the appellant admitted that he had sex with someone in his Cadillac, and it

was either CL or a Senior Airman named Amanda. Eventually, after additional prodding, the

appellant admitted that it was CL whom he had sex with in his car. In his post-interview written

statement, the appellant wrote that he "ran out in [his] car with [CL] and had brief intercourse inside

the car." He also stated that he was going to tell his wife about the incident until he learned of CL's

age. The appellant only admitted to having sex with CL on the one occasion in his car and to kissing

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her a few times after being "seduced." He denied any other sexual misconduct toward CL.

At trial, the defense motioned to suppress the confessions, asserting the appellant's statements were

the result of a promise of confidentiality by the two AFOSI agents. The appellant pointed to five

specific examples of such promises:

- "Like I said, what you say here stays with us. We don't go around telling everyone what you say

and everything else."

- "You don't have to worry about anything you say with us. Like I said, we are not trying to throw .

you up by a stake or anything else."

- "Everything that stays in this room, stays in this room."

- "I am not going to tell your wife about it either, you know. ... I am not going to tell anybody. . .

- "See, the thing about our office here is when we talk to people, we don’t share information with

other people."

In support of the motion to suppress, the appellant testified that these comments convinced him that

no matter what he said to the AFOSI agents, they would keep it to themselves. He further testified

that he believed the AFOSI agents would only submit a report to his commander indicating whether

he was being honest, and nothing more. According to the appellant, he believed the agents promised

him confidentiality, so he merely agreed with the allegations in order to leave the interview and get

on with his life.

The military judge denied the motion and issued findings of fact. Regarding the appellant's

testimony, the military judge stated: "The court finds this testimony to be totally, completely, and

unequivocally without merit." The military judge acknowledged the possibility that the agents'

statements, standing alone and taken out of context, might have reasonably implied a promise of

confidentiality. However, he found that when taken in the context of the entire conversation and

under the totality of the circumstances, the agents' statements implied no such promise. The military

judge noted that three of the statements were made in response to the appellant's concern about his

wife learning of the details of his infidelity with CL and therefore amounted to assurances merely that

the agents would not tell the appellant's wife what he said. Additionally, the military judge viewed the

other two statements as "tiny snippets of a lengthy discourse by the agents, which given the context

of the conversation, could not reasonably be construed as a promise of confidentiality." The military

judge also noted that the appellant's own statements during the interview demonstrated his

awareness that disciplinary action could result from his admissions, such as his question to agents

about whether this matter was "a court-martial thing." Ultimately, the military judge concluded that

"the defense . . . cherry picked five very short innocuous statements .... [which] taken individually,

or collectively, cannot reasonably be construed as a promise of confidentiality." The appellant

challenges this ruling on appeal.

A military judge's decision to deny a motion to suppress evidence is reviewed for an abuse of

discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008).

"Abuse of discretion" is a term of art applied to appellate review of the discretionary judgments of

a trial court. An abuse of discretion occurs when the trial court's findings of fact are clearly

erroneous or if the court's decision is influenced by an erroneous view of the law. Further, the

abuse of discretion standard of review recognizes that a judge has a range of choices and will

not be reversed so long as the decision remains within that range.Id. (internal quotation marks

and citations omitted).

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Generally, a confession is not admissible unless it has been made voluntarily, considering the totality

of the circumstances surrounding the confession. Arizona v. Fulminante, 499 U.S. 279, 285-86, 111

S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Mil. R. Evid. 304(a). Military justice jurisprudence has long

held that a statement made in response to a promise of confidentiality by law enforcement agents

may be inadmissible, because the promise of confidentiality nullifies the rights advisement under

Article 31, UCMJ. United States v. Cudd, 6 C.M.A. 630, 20 C.M.R. 346, 352 (C.M.A. 1956). A rights

advisement followed by a promise of confidentiality "amounts to no warning, as the assurance could

only be interpreted to mean that the statement would not be used in a subsequent trial." Id. at 350.

Statements made in response to a promise of confidentiality are inadmissible, despite the provision

of a rights advisement, where the promise "inducejsj a belief in the mind of the accused that his

disclosure will not be made the basis for a criminal prosecution." United States v. Washington, 9

C.M.A. 131, 25 C.M.R. 393, 395 (C.M.A. 1958). Even an implied promise of confidentiality may

render a confession inadmissible if it is "the causative factor for. . . later confessions." United States

v. Green, 15 C.M.A. 300, 35 C.M.R. 272, 276 (C.M.A. 1965).

Promises of confidentiality are substantially similar to promises of testimonial immunity. See United

States v. Lonetree, 35 M.J. 396, 401-02 (C.M.A. 1992) (analyzing promises of confidentiality and

immunity under the same framework). If an official with either express or apparent authority

promises a suspect that no prosecution will result if the suspect confesses, courts will not hesitate to

enforce that promise. United States v. Churnovic, 22 M.J. 401, 405 (C.M.A. 1986). Promises of

confidentiality or immunity made without authority are forms of unlawful inducement. Lonetree, 35

M.J. at 402. "A confession is involuntary, and thus inadmissible, if it was obtained . . . through the

use of unlawful inducement." Freeman, 65 M.J. at 453 (internal quotation marks omitted) (citing Mil.

R. Evid. 304(a), (c)(3); Article 31(d), UCMJ).

Under Freeman, "promises are considered only a factor in the equation; they are not of themselves

determinative of involuntariness." Id. at 455. "In determining whether a defendant's will was

over-borne in a particular case," we assess "the totality of all the surrounding circumstances-both the

characteristics of the accused and the details of the interrogation." Id. at 453 (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). Factors taken into account

in determining voluntariness include the accused's age, level of education, and intelligence, along

with any advice provided to the accused concerning his constitutional rights, the length of detention,

the nature of the questioning, and the use or absence of physical punishment such as the deprivation

of food or sleep. Id. (citations omitted).

We have reviewed the record of trial, including the written submissions on this issue at trial and on

appeal, the video recording of the confession, the transcript of the interview, and the appellant's

written confession. We have also considered oral argument on this issue. Our review leaves us

firmly convinced that the military judge did not abuse his discretion when he denied the appellant's

motion to suppress his confession.

We find no promise of confidentiality made by AFOSI agents. We acknowledge, as did the military

judge, that some of the agents' comments, taken in isolation, could be read to constitute a promise of

confidentiality or immunity.5 The individual statements the appellant cites should not be held up as a

model for other agents to follow, and in a different setting, might constitute a promise of

confidentiality or immunity. However, we agree with the military judge that when taken in the context

of the totality of the circumstances, most if not all of the agents' statements were made in response

to the appellant's concerns about his wife finding out about his actions.6 A fair reading of the entire

transcript and an unbiased viewing of the video recording indicates that the agents' comments were

not reasonably viewed as general commitments that the agents would forever keep the appellant's

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statements in confidence, never to be revealed to anyone. Rather, they were poorly-worded

assurances that they would not broadcast his statements to anyone without a need to know the

information, including the appellant’s wife.

The appellant's own statements indicate his awareness that his statements could be used against

him. Toward the end of the interview, he asked agents if this matter could be treated as a

court-martial, and he also said that he might need a break to smoke if he was "being handcuffed out

of [the interview].” Throughout the interview, the appellant grudgingly disclosed more and more

information as he was confronted with the absurdity of his statement that he had sexual intercourse

with someone on the eve of his wedding, but could not remember who his partner was. Even when

he admitted to having sexual intercourse with CL in the car, he denied other allegations of sexual

misconduct. The appellant was well aware that any statements he made could be used against him.

We agree with the military judge that the appellant lacked credibility in his contention that he

believed agents would only submit a report to his commander indicating whether he was being

honest and nothing more. Apart from the inherent improbability of such a belief by a

noncommissioned officer who had been in the Air Force for more than 10 years at the time of the

interview, the appellant's lack of credibility in his motions testimony clearly presents itself through the

transcript.

We find agents made no promise of confidentiality and therefore the appellant's statements were

voluntary under the totality of the circumstances. We find no abuse of discretion in the military

judge's denial of the defense's motion to suppress the appellant's statements to AFOSI agents.

Factual Sufficiency

The appellant also avers that his convictions for rape, carnal knowledge, forcible sodomy, and

indecent acts with a child are factually insufficient.

Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of legal and factual sufficiency de

novo. See United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual

sufficiency is "whether, after weighing the evidence in the record of trial and making allowances for

not having personally observed the witnesses, [we are] convinced of the accused's guilt beyond a

reasonable doubt." United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). Review of the evidence

is limited to the entire record, which includes only the evidence admitted at trial and exposed to the

crucible of cross-examination. Article 66(c), UCMJ; United States v. Bethea, 22 C.M.A. 223, 46

C.M.R. 223, 224-25 (C.M.A. 1973).

Having reviewed the entire record, including the appellant's confession and the victim's testimony,

we are convinced the appellant's convictions are factually sufficient.7 CL provided detailed and

believable testimony about the events that transpired, and the appellant's confession corroborated

some of her testimony. Despite attempts to do so, the defense was not able to establish any material

contradictions or inaccuracies in her testimony. We agree with the members that the appellant is

guilty of the charged offenses.

Failure to State an Offense

Notice of the terminal element of an Article 134, UCMJ, offense is an essential part of due process,

as an accused must know and fully understand the offenses against which he must defend. See

United States v. Humphries, 71 M.J. 209, 216 (C.A.A.F. 2012); United States v. Foster, 70 M.J. 225,

229 (C.A.A.F. 2011). Whether a charge and specification state an offense and the remedy for such

error are questions of law that we review de novo. United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F.

2012). "A specification states an offense if it alleges, either expressly or by [necessary] implication,

every element of the offense, so as to give the accused notice and protection against double

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jeopardy." United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006) (citing United States v. Dear,

40 M.J. 196, 197 (C.M.A. 1994)); Rule for Courts-Martial 307(c)(3).

Charge III and its Specification alleged a violation of Article 134, UCMJ, in that the appellant

committed indecent acts upon the victim, a female under the age of 16, not his wife, by committing

certain acts upon her with the intent to gratify his sexual desires. The Specification did not allege one

of the three possible clauses of the terminal element: prejudice to good order and discipline, service

discrediting, or a crime or offense not capital. The appellant did not contest the wording of the

specification at trial.

Because the appellant did not object to the missing element at trial, we analyze this case for plain

error and in doing so find that the failure to allege the terminal element was "plain and obvious error

that was forfeited rather than waived." See Humphries, 71 M.J. at 215. In the context of a plain error

analysis of defective indictments, the appellant has the burden of demonstrating that: "(1) there was

error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of

the accused." Id. at 214 (quoting United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)) (internal

quotation marks omitted). "[I]n the plain error context[,] the defective specification alone is

insufficient to constitute substantial prejudice to a material right." Humphries, 71 M.J. at 215 (citing

Puckett v. United States, 556 U.S. 129, 142, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009); United

States v. Cotton, 535 U.S. 625, 631-32, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002)). Therefore,

reviewing courts "look to the record to determine whether notice of the missing element is

somewhere extant in the trial record, or whether the element is 'essentially uncontroverted.’" Id. at

215-16 (quoting Cotton, 535 U.S. at 633; Johnson v. United States, 520 U.S. 461, 470, 117 S. Ct.

1544, 137 L. Ed. 2d 718 (1997)). If this is the case, the charging error is considered cured and

material prejudice is not demonstrated. Id. at 217.

The only mention of any of the clauses of the terminal element during the trial was by trial counsel

during closing arguments when, after recounting the facts alleged in the Specification, he argued to

the jury that, "It should take you about five seconds to realize that committing these horrible acts on

an Air Force Installation on a 13-year-old child is prejudicial to good order and discipline in the United

States Air Force." The defense did not address this point.

Our superior court has specified that identifying a theory of criminality during closing argument alone

does not constitute sufficient notice to find a lack of prejudice from omission of the terminal element

on the charge sheet. United States v. Goings, 72 M.J. 202, 208 (C.A.A.F. 2013). Because notice of

the missing element is not "somewhere extant in the trial record," as required by Humphries, it was

plain and obvious error to omit the terminal element from the Specification alleging indecent acts

under Article 134, UCMJ. That error prejudiced the appellant's right to notice. Accordingly, we

dismiss the finding of guilty for Charge III and its Specification.

Prosecutorial Misconduct and Perjury

We have considered the appellant's fourth and fifth assigned errors, raised pursuant to United States

v. Grostefon, 12 M.J. 431 (C.M.A 1982), and find them meritless.

We have reviewed the appellant's claim of prosecutorial misconduct under the standards of United

States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013), United States v. Edmond, 63 M.J. 343, 347

(C.A.A.F. 2006), and United States v. Argo, 46 M.J. 454, 457 (C.A.A.F. 1997). We have paid special

attention to the "overall effect of counsel's conduct on the trial, and not counsel's personal

blameworthiness." United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003). Having examined

trial counsel's conduct as well as the fairness of this trial, we find no merit in the appellant's claim.

The appellant claims the victim committed perjury, pointing to statements in the Article 32, UCMJ, 10

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U.S.C. § 832, investigation which he claims could be used to contradict her. He then relates this back

to his argument that the evidence was insufficient to support a conviction. We have already

addressed the issue of factual sufficiency and there is no need to rehash it. Trial defense counsel

subjected CL to a vigorous cross-examination. The members believed her, and we are similarly

convinced by her testimony and the other evidence in the record of trial, to include the appellant's

confession. We find no merit to the appellant's claim

Cumulative Error

The appellant avers that cumulative errors occurred at trial that should compel us to set aside the

findings and sentence. In this argument, the appellant raises eight errors he alleges transpired during

trial, some with several subparts.

As our sister court observed, we "evaluate the fairness of the appellant's trial using the cumulative

error doctrine." United States v. Parker, 71 M.J. 594, 630 (N.M. Ct. Crim. App. 2012) (citing United

States v. Dollente, 45 M.J. 234, 242 (C.A.A.F. 1996); United States v. Banks, 36 M.J. 150, 171

(C.M.A. 1992)). As the Parker Court stated, Dollente requires us to evaluate the errors

[ajgainst the background of the case as a whole, paying particular weight to factors such as the

nature and number of the errors committed; their interrelationship, if any, and combined effect;

how the [trial] court dealt with the errors as they arose (including the efficacy-of any remedial

efforts); and the strength of the government's case.71 M.J. at 603 (second alteration in original).

Some of the errors alleged by the appellant include supposed errors by the military judge in his

instructions, misstatements of the evidence by the prosecutor, the denial of the right to an educated

jury due to the prosecutor's failure to present expert testimony on child behavior that would favor the

appellant's case, and that a testifying AFOSI agent was allowed to give human lie detector

testimony. We have reviewed the appellant's allegations and find no error. Rather, we find rulings

and decisions made well within the sound discretion of the military judge. There was ample evidence

of the appellant's guilt and there were no errors that materially prejudiced his substantial rights.

Under these circumstances, the appellant was not denied a fair trial, and the cumulative error

doctrine is not applicable. See United States v. Pope, 69 M.J. 328, 335 (C.A.A.F. 2011); Dollente, 45

M.J. at 242.

Visitation Rights

Citing United States v. Ouimette, 52 M.J. 691 (C.G. Ct. Crim. App. 2000), the appellant claims the

USDB's refusal to allow him visitation rights with his children illegally constituted a "harsher [and]

excessive sentence and punishment" because (1) he did not commit any offense against his own

children, (2) he was issued a meritless no-contact order, and (3) the USDB administrative system

improperly lists him as single with no dependents. The appellant submitted documents indicating he

is under a blanket restriction from having any visitation and from making any contact with his own

children (even indirectly through contact via his wife).8 He sent a request to the USDB Commandant

for an exception to this policy but was denied. He filed a complaint with the Inspector General, and

although he states he has filed a complaint pursuant to Article 138, UCMJ, 10 USC § 938, the record

lacked any other indication or evidence of this assertion.9

We review allegations of cruel and unusual punishment de novo. United States v. Lovett, 63 M.J.

211, 215 (C.A.A.F. 2006). As our superior court noted:

[T]he Eighth Amendment prohibits two types of punishments: (1) those "incompatible with the

evolving standards of decency that mark the progress of a maturing society" or (2) those "which

involve the unnecessary and wanton infliction of pain.” We apply the Supreme Court's

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interpretation of the Eighth Amendment in the absence of any legislative intent to create greater

protections in the UCMJ./d. (citations omitted). Except for specific situations not applicable to

this case, Article 55, UCMJ, 10 U.S.C. § 855, is coterminous with the Eighth Amendment,10 and

we will apply that standard to both provisions. See United States v. Pena, 64 M.J. 259, 265

(C.A.A.F. 2007); United States v. Matthews, 16 M.J. 354, 368 (C.M.A. 1983).

A violation of the Eighth Amendment is shown by demonstrating:

(1) an objectively, sufficiently serious act or omission resulting in the denial of necessities; (2) a

culpable state of mind on the part of prison officials amounting to deliberate indifference to [the

appellant's] health and safety; and (3) that he has exhausted the prisoner-grievance system . . .

and that he has petitioned for relief under Article 138, UCMJ.Lovett, 63 M.J. at 215 (omission in

original) (footnotes omitted).

Applying these standards, we find no violation of the Eighth Amendment or Article 55, UCMJ. The

appellant's complaint does not amount to a serious act or omission resulting in a denial of

necessities. Typically, such serious acts or omissions include matters such as denial of needed

medical attention, proper food, sanitary living conditions, or even physical abuse. See United States

v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000). The appellant's deprivation is more akin to routine

conditions associated with punitive or administrative segregation such as restriction of contact with

other prisoners, of exercise outside a cell, of visitation privileges, of telephone privileges, and/or of

reading material. See Id. at 102. We also note that not all visitation or outside contact was withheld

from the appellant, just a certain segment of it. This partial, rather than full, restriction on the

appellant's ability to communicate with friends and family also supports the Government's case. See

Turner v. Safiey, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); Henderson v. Terhune, 379

F.3d 709 (9th Cir. 2004). Also, the appellant has not shown the Commandant acted with a culpable

state of mind. He did not arbitrarily select the appellant and deny him contact with minors. He was

merely enforcing the USDB's rules.

We emphasize that the USDB rules about visitation with children are enforced for the protection of

minors. That the appellant has to undergo a strict screening policy before being granted permission

to visit his children is an administrative safeguard to protect minor juveniles from those convicted of

child sex crimes. It is not an additional punishment or a method of enhancing the sentence already

adjudged. Accordingly, we find no merit to the appellant's claim.

Propriety of Charges

The appellant argues that the offenses of carnal knowledge and indecent acts were improperly

charged and should be dismissed because the legal actions to bring him to trial on these offenses

occurred after 1 October 2007. According to the appellant, Executive Order 13447 and the 2006

National Defense Authorization Act amended the Manual for Courts-Martial, and eliminated these

two offenses. He argues that because the Executive Order states that nothing in the amendments

would invalidate certain legal actions, to include investigations and referral of charges, that began

prior to 1 October 2007, and the legal actions that preceded the appellant's trial occurred after that

date, they were rendered invalid by the Executive Order because they occurred too late.

This argument is without merit. Executive Order 13447 and the 2006 National Defense Authorization

Act did not eliminate these two offenses in the sense that no one could be prosecuted for them if

legal action began after 1 October 2007. The Executive Order merely incorporated the amendments

to Article 120, UCMJ, and other provisions. It did not bar prosecution of violations of the law as it was

written prior to the amendments and the Executive Order.

These offenses were all alleged as perpetrated against a child between the ages of 12 and 16 years

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old. As such, each has a 25-year statute of limitations and may be prosecuted any time within that

period. See United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). See also Article 43,

UCMJ, 10 U.S.C. § 843; Drafter’s Analysis, Manual for Courts-Martial, United States, A21-57, A27

(2012 ed.). The language cited by the appellant in the Executive Order does not bar the offense from

being prosecuted.

Review of CL's Mental Health and Medical Records

The appellant next alleges that either the military judge or the Government denied him a fair trial by

failing to provide him with relevant mental health and medical records of CL. The appellant alleges

that the records he sought would have demonstrated that the charged acts occurred not in 2004 but

in 2006, near the time she underwent a significant medical procedure.

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a

confidential communication made between the patient and a psychotherapist or an assistant to a

psychotherapist, in a case arising under the UCMJ, if such communication was made for the

purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.Mil.

R. Evid. 513(a). However, no such privilege exists when the records are "constitutionally

required." Mil. R. Evid. 513(d)(8). "To prevent unnecessary disclosure of evidence of a patient's

records or communications, the military judge may issue protective orders or may admit only

portions of the evidence." Mil. R. Evid. 513(e)(4).

"We review a military judge's decision to admit or exclude evidence for an abuse of discretion."

United States v. Jenkins, 63 M.J. 426, 428 (C.A.A.F. 2006) (citing United States v. Manns, 54 M.J.

164, 166 (C.A.A.F. 2000)).

At trial, the defense moved to compel production of CL's mental health records covered by Mil. R.

Evid. 513. Trial counsel provided the appropriate records to the military judge; however after

reviewing them in camera, he determined no records would be provided to the defense. The defense

did not move to produce any of CL's medical records. While trial defense counsel did file a notice

under Mil. R. Evid. 412 indicating a desire to cross-examine the victim about the alleged medical

procedure, he abandoned the effort when he learned a Government witness would testify the

procedure took place at a different time-a time trial defense counsel believed would be supported by

the mental health records. Based on this, trial defense counsel twice told the military judge they no

longer sought to pursue this matter.

We have reviewed the appellant's assignment of error, the defense’s filings under Mil. R. Evid. 412

and 513, trial defense counsel's representations to the military judge, and the mental health records.

We find no abuse of discretion in the military judge's decision not to release mental health records to

the defense. We similarly find no basis for relief in trial defense counsel's decision not to pursue

questioning about the alleged medical procedure. The decision of the defense to pursue this issue

resulted from a lack of evidence to support the defense theory, not from any action of the military

judge or the Government.

Military Judge's Instructions on Force Elements

The appellant alleges that the military judge's findings instructions concerning force in the forcible

sodomy and rape specifications erred in three respects: (1) his instructions on the forcible sodomy

specification erroneously lessened the Government's burden of proof by allowing the members to

find force occurred simply on the basis of CL's age; (2) his instructions concerning the rape and

forcible sodomy specifications improperly included the concept of constructive force; and (3) the

military judge failed to give a "mistake of age" instruction.

milcase

and terms and conditions of the Matthew Bender Master Agreement.

Whether the military judge properly instructed the members is a question of law we review de novo.

United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010). However, "[wjhere there is no objection

to an instruction at trial, we review for plain error." United States v. Payne, 73 M.J. 19, 22 (C.A.A.F.

2014).

We find no error-plain or otherwise-in the military judge's instructions. The military judge's

instructions concerning the forcible sodomy specifications did not allow the members to find force

solely because of CL's age; rather they properly presented CL's age as one factor the members

could consider in determining whether CL was incapable of giving consent. The military judge's

constructive force instruction was proper, as constructive force has long been held to satisfy the

requirement of force under the version of Article 120, UCMJ, applicable to the time of the appellant's

misconduct.11 See, e.g., United States v. Davis, 52 M.J. 201, 203 (C.A.A.F. 1999). Finally, we find

no plain error in the lack of a "mistake of age" instruction based on the lack of indication in the record

of trial that the appellant was mistaken as to CL's age.

Appellate Review Time Standards

We review de novo "[wjhether an appellant has been denied [his] due process right to a speedy

post-trial review . . . and whether [any] constitutional error is harmless beyond a reasonable doubt."

United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). A presumption of unreasonable delay

arises when appellate review is not completed and a decision is not rendered within 18 months of the

case being docketed before this Court. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006).

The Moreno standards continue to apply as a case remains in the appellate process. United States v.

Mackie, 72 M.J. 135, 135-36 (C.A.A.F. 2013). The Moreno standard is not violated when each period

of time used for the resolution of legal issues between this Court and our superior court is within the

18-month standard. Id. at 136; see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010).

However, when a case is not completed within 18 months, such a delay is presumptively

unreasonable and triggers an analysis of the four factors elucidated in Barker v. Wingo, 407 U.S.

514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and Moreno. See United States v. Arriaga, 70 M.J. 51,

55 (C.A.A.F. 2011). Those factors are "(1) the length of the delay; (2) the reasons for the delay; (3)

whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant." United

States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530.

This case was originally docketed for appellate review on 11 July 2011 and this Court rendered a

decision on 18 July 2013. This exceeded the 18-month standard established in Moreno and is

therefore facially unreasonable. We have examined the factors identified in Barker to determine

whether the appellant suffered from a due process violation as a result of the delay. We find that no

such due process violation occurred in the delay leading up to this Court's 18 July 2013 decision. In

particular, the appellant has made no showing of prejudice under the fourth Barker factor. When

there is no showing of prejudice under the fourth factor, "we will find a due process violation only

when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely

affect the public's perception of the fairness and integrity of the military justice system." United

States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the totality of the

circumstances and the entire record, when we balance the other three factors, we find the post-trial

delay in this case to not be so egregious as to adversely affect the public's perception of the fairness

and integrity of the military justice system. We are convinced the error is harmless beyond a

reasonable doubt.

As for the time that has elapsed since this Court's 18 July 2013 decision, we find no due process

violation. The Moreno standards continue to apply as a case continues through the appellate

process. Mackie, 72 M.J. at 135-36. The Moreno standard is not violated when each period of time

milcase

and terms and conditions of the Matthew Bender Master Agreement.

used for the resolution of legal issues between this Court and our superior court is within the

18-month standard. Id. at 136; see also Roach, 69 M.J. at 22. The time between our superior court's

action to return the record of trial to our Court for our action and this decision did not exceed 18

months; therefore, the Moreno presumption of unreasonable delay is not triggered. See Mackie, 72

M.J. at 136. Assuming the total appellate processing of this case raises a presumption of

unreasonable delay, we again conclude the delay was harmless under the Barker analysis.

While we find the post-trial delay was harmless, that does not end our analysis. Article 66(c), UCMJ,

empowers appellate courts to grant sentence relief for excessive post-trial delay without the showing

of actual prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardii, 57

M.J. 219, 224 (C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In

United States v. Brown, 62 M.J. 602, 606-07 (N.M. Ct. Crim. App. 2005), our Navy and Marine Court

colleagues identified a "non-exhaustive" list of factors to consider in evaluating whether Article 66(c),

UCMJ, relief should be granted for post-trial delay. Among the non-prejudicial factors are the length

and reasons for the delay; the length and complexity of the record; the offenses involved; and the

evidence of bad faith or gross negligence in the post-trial process. Id. at 607. We find there was no

bad faith or gross negligence in the post-trial processing in any stage of the appellate review of this

matter. The reason for the delay between 18 July 2013 and our opinion today was to allow this Court

and our superior court to fully consider a constitutional issue of first impression: whether the

Secretary of Defense has the authority under the Appointments Clause12 to appoint civilian

employees to the service courts of criminal appeals. We conclude that sentence relief under Article

66, UCMJ, is not warranted.

Sentence Reassessment

Having dismissed Charge III and its Specification, we must determine whether we are able to

reassess the sentence. Applying the analysis set forth in United States v. Winckelmann, 73 M.J. 11

(C.A.A.F. 2013), we are confident that we can reassess the appellant's sentence to cure any

prejudicial effect of the error in the defective specification. Under the four factors identified in

Winckelmann, and analyzing this matter under the totality of the circumstances, we are confident that

absent the defective specification, the appellant's sentence would not change from that adjudged and

approved. See Id. at 15-16. We base this conclusion on three findings: (1) there has not been a

dramatic change in the penalty landscape and exposure because conviction for forcible sodomy

carried with it a maximum sentence to confinement of life; (2) the nature of the remaining offenses

captures the gravamen of criminal conduct included within the original offenses, and significant

aggravating circumstances addressed at the court-martial remain admissible and relevant to the

remaining offenses; and (3) the remaining offenses are of the type this Court has the experience and

familiarity with to reliably determine what sentence would have been imposed at trial. We therefore

reassess the appellant's sentence to the same sentence originally adjudged and approved.

Conclusion

We set aside and dismiss Charge III and its Specification and affirm the remaining findings and the

sentence as approved by the convening authority. The approved findings, as modified, and the

sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the

appellant regarding the affirmed charges and specifications occurred. Articles 59(a) and 66(c),

UCMJ.

Accordingly, the findings, as modified, and the sentence, are

AFFIRMED.

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and terms and conditions of the Matthew Bender Master Agreement.

Footnotes

The convening authority's action states, in relevant part:

In the case of [the appellant], only so much of the sentence as provides for a dishonorable discharge,

confinement for 25 years, and reduction to the grade of Airman Basic (E-1) is approved and, except

for the dishonorable discharge, will be executed, but the execution of the first six months of that part

of the sentence extending to forfeiture of total pay and allowances is suspended for six months, at

which time, unless the suspension is sooner vacated, the suspended part of the sentence will be

remitted without further action.The action then noted that the adjudged reduction in rank and

forfeiture were deferred 14 days from the date the sentence was adjudged until the date of the

action. The action also waived mandatory forfeitures under Article 58b, UCMJ, 10 U.S.C. § 858b.

Therefore, the first part of the action's first sentence excludes the total forfeitures from approval,

while the second half of the first sentence purports to suspend execution of the adjudged forfeitures.

The appellant did not raise this as an issue, and both parties' appellate filings clearly indicate their

understanding that the adjudged forfeiture was not approved. The court-martial order accurately

reflects the language of the convening authority's action. For clarity’s sake, we explicitly find that the

convening authority's action unambiguously disapproved the adjudged forfeiture. See United States

v. Wilson, 65 M.J. 140 (C.A.A.F. 2007).

U.S. Const, amend. V.

U.S. Const, amend. XIV.

Issues 4, 5, 6, 8, 9 and 10 were raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A

1982). This Court's original opinion addressed issues 1 through 8. In supplemental assignments of

error submitted to this Court upon reconsideration, the appellant re-raised some but not all of the

previously submitted issues and raised new issues 9 through 11. It is not clear why the appellant

re-raised some but not all of the previously submitted issues. This Court has analyzed all 11 issues,

regardless of whether the appellant elected to re-raise them.

In addition to the comments cited by the appellant, we also point out the following statement by one

of the agents:

[Rjight now this is where the crossroad is. You need to make that decision of which way you are

going. This is where you have the option to A), go on and save your career and have a long living

career, or B), you can lie to me and you are going to watch your career flush down the

toilet.(emphasis added).

The appellant’s concern about his wife finding out about his extra-marital sexual conduct with an

underage relative is reflected in the record of trial. When the appellant's wife testified in findings on

his behalf, she admitted that she did not know that the appellant confessed to having sexual

intercourse with CL until shortly before trial, when trial counsel informed her of the appellant's

admissions.

milcase

and terms and conditions of the Matthew Bender Master Agreement.

Though not specifically raised, we also find that the appellant's convictions are legally sufficient. See

United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002); United States v. Turner, 25 M.J. 324

(C.M.A. 1987).

The United States Disciplinary Barracks' regulations prevent him from seeing any children without

first obtaining an "exception to policy."

Our July 2013 decision noted the absence of any indication or evidence that the appellant filed a

complaint under Article 138, UCMJ, 10 U.S.C. § 938. Despite submitting voluminous filings in this

case, the appellant still has not provided any such proof that he filed such a complaint. Even

assuming he has submitted such a complaint, our conclusion on this matter remains the same.

U.S. Const, amend. VIII.

The appellant was charged with raping CL on divers occasions between 1 July 2004 and 30

September 2004 in violation of Article 120, UCMJ, 10 U.S.C. § 920. See Manual for Courts-Martial,

United States, A27-1 (2012 ed.).

U.S. Const, art II § 2, cl 2.

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and terms and conditions of the Matthew Bender Master Agreement.

APPENDIX

U.S. v. Rafael Verdeio-Ruiz.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

74 M.J. 328; 2015 CAAF LEXIS 902

No. 14-0010/AF.

March 26, 2015, Decided

Notice:

DECISION WITHOUT PUBLISHED OPINION

Editorial Information: Prior History

CCA 37957.United States v. Verdeio-Ruiz. 2013 CCA LEXIS 680 (A.F.C.C.A., July 18, 2013)

Opinion

Petition for Grant of Review Denied.

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and terms and conditions of the Matthew Bender Master Agreement.

APPENDIX

RAFAEL VERDEJO RUIZ vs. WARDEN EDGE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, TEXARKANA

DIVISION

2018 U.S. Dist. LEXIS 222281

CIVIL ACTION NO. 5:18-CV-22

December 13, 2018, Decided

December 13, 2018, Filed

Editorial Information: Subsequent History

Adopted by, Writ of habeas corpus dismissed, Objection overruled by Ruiz v. Warden, Fed. Corr. Inst.,

2019 U.S. Dist. LEXIS 35347 (E.D. Tex., Mar. 5, 2019)

Editorial Information: Prior History

United States v. Verdeio-Ruiz, 2013 CCA LEXIS 680 (A.F.C.C.A., July 18, 2013)

{2018 U.S, Dist. LEXIS 1>Rafael Verdeio Ruiz, Petitioner, Pro se,

Counsel

Texarkana, TX.

For FNU Edge, Respondent: Robert Austin Wells, LEAD

ATTORNEY, U S Attorney's Office - Tyler, Tyler, TX.

Judges: CAROLINE M. CRAVEN, UNITED STATES MAGISTRATE JUDGE.

Opinion

Opinion by:

CAROLINE M. CRAVEN

Opinion

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Petitioner Rafael Verdeio Ruiz, a prisoner confined at the Federal Correctional Institution in

Texarkana, Texas, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

The above-styled action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §

636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge for

findings of fact, conclusions of law, and recommendations for the disposition of the case.

Factual Background

In 2011, petitioner, a former active duty member of the United States Air Force, was tried by a

general court-martial and found guilty of four specifications: (1) rape of a person between the ages of

12 and 16, (2) carnal knowledge with a person between the ages of 12 and 16; (3) sodomy of a

person between the ages of 12 and 16; and (4) indecent acts upon the body of a female under the

age of 16. He was sentenced to a dishonorable discharge, 25 years of{2018 U.S. Dist. LEXIS 2}

confinement, reduction in grade from E-6 to E-1, and forfeiture of all pay and allowances.

lyecases

and terms and conditions of the Matthew Bender Master Agreement.

In military cases, the appeal process begins with the defense submitting matters to the convening

authority. RULE FOR COURTS-MARTIAL (R.C.M.) 11.05. Following that review, the convening

authority approved the dishonorable discharge, confinement for 25 years, and reduction in grade to

E-1. However, the convening authority granted petitioner clemency by disapproving the adjudged

forfeitures of pay and allowance, and by waiving the imposition of automatic forfeitures for 6 months

for the benefit of petitioner's wife and children.

The case was appealed to the Air Force Court of Criminal Appeals (AFCCA). The AFCCA set aside

the specification alleging indecent acts. Because the remaining offenses carried the same maximum

punishment, the AFCCA affirmed the sentence. Petitioner filed a motion for reconsideration. The

AFCCA affirmed its prior decision. On March 26, 2015, the United States Court of Appeals for the

Armed Forces (CAAF) denied petitioner's petition for review, and the CAAF subsequently denied an

untimely motion for reconsideration.

After his discharge from the United States Air Force on April{2018 U.S. Dist. LEXIS 3} 14, 2015,

petitioner sought habeas relief from the CAAF. The CAAF denied the petition on June 22, 2016.

The Petition

Petitioner contends he raised an affirmative defense that he mistakenly believed that the victim

consented to sexual acts, but the trial judge failed to instruct the jurors that the government had the

. burden of disproving his affirmative defense beyond a reasonable doubt. Petitioner challenges the

pay forfeiture portion of his sentence, asserting that he should either receive his pay or his sentence

should be reduced by one day for each day of forfeited pay. Petitioner contends he received

ineffective assistance of counsel because his attorneys failed to raise these issues, and also because

his appellate attorney failed to file a timely brief.

Analysis

The military has its own criminal justice system, which is governed by the Uniform Code of Military

Justice. Burns v. Wilson, 346 U.S. 137, 140, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953). The UCMJ

provides for courts-martial, direct appellate review, and post-conviction review through the military

court system, and limited certiorari review by the United States Supreme Court. Fletcher v. Outlaw,

578 F.3d 274, 277 (5th Cir. 2009). Although federal courts have jurisdiction over habeas petitions

filed by military prisoners, the scope of review is limited.{2018 U.S. Dist. LEXIS 4} Burns, 346 U.S.

at 142. Federal habeas review of a court martial is limited to jurisdictional issues and determining

whether the military gave full and fair consideration to the petitioner's claims. Calley v. Callaway, 519

F.2d 184, 198 (5th Cir. 1975). It is the petitioner's burden to show that the military review was not full

and fair. Burns, 346 U.S. at 146.

Federal courts may not reevaluate and re-weigh the evidence presented in the military courts. Burns,

346 U.S. at 146. The United States Court of Appeals for the Fifth Circuit has held that review of a

military conviction is only appropriate if the petitioner meets each of the following four factors: (1) the

asserted error is of "substantial constitutional dimension," (2) the issue is a legal question rather than

a disputed fact determined by the military court; (3) there are no military considerations that warrant

different treatment of constitutional claims; and (4) the military courts gave adequate consideration

to the issues involved and applied the proper legal standards. Calley, 519 F.2d at 199-203. With

respect to the fourth factor, when an issue is briefed and argued before the miliary court, full and fair

consideration has been given, even if the military court summarily disposes of the issue. Fletcher,

578 F.3d at 278.

Petitioner states that none of the claims raised in this petition were{2018 U.S. Dist. LEXIS 5}

lyecases

and terms and conditions of the Matthew Bender Master Agreement.

litigated in the military courts. 1 Because they were not litigated in the military courts, the claims are

unexhausted. "Federal courts normally will not entertain habeas petitions by military prisoners unless

all available military remedies have been exhausted." Schlesinger v. Councilman, 420 U.S. 738, 758,

95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975); see also Perguson v. Nicoli, 694 F.2d 101, 104 (5th Cir.

1982) (holding that constitutional claims must be exhausted in military courts before federal habeas

review). Where the issue was not raised before the miliary courts, the petitioner must show cause

excusing the procedural default and actual prejudice as a result of the error. Lips v. Commandant,

United States Disciplinary Barracks, 997 F.2d 808, 812 (10th Cir. 1993).

The accused in a military court has the right to raise any issues on appeal, and appellate counsel

must bring those issues to the attention of the military court in addition to the issues that counsel

finds worthy of appeal. United States v. Grostefon, 12 M.J. 431,436-37 (1982). In this case,

appellate counsel filed a brief, and then petitioner exercised his right to raise additional issues on

appeal to the AFCCA. The AFCCA addressed each of the issues that petitioner raised, as well as the

issues raised by counsel. The claims raised in this petition could have been addressed on direct

appeal, but petitioner did not bring the issues to the attention of counsel or the AFCCA in a timely

fashion.{2018 U.S. Dist. LEXIS 6) In this case, petitioner has not shown cause or prejudice for failing

to present his claims on direct review in the military courts. Therefore, the claims are procedurally

barred from consideration in a federal habeas proceeding.

Recommendation

This petition for writ of habeas corpus should be dismissed.

Objections

Within fourteen days after receipt of the Magistrate Judge's report, any party may serve and file

written objections to the findings of facts, conclusions of law and recommendations of the Magistrate

Judge. 28 U.S.C. § 636(b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1);

FED. R. CIV. P. 72.

SIGNED this 13th day of December, 2018.

Isl Caroline M. Craven

CAROLINE M. CRAVEN

UNITED STATES MAGISTRATE JUDGE

Footnotes

Citing Watson v. McCotter, 782 F.2d 143 (10th Cir. 1986), respondent contends the military courts

gave full and fair consideration to petitioner's claims of ineffective assistance of counsel. In Watson,

the Tenth Circuit held that an issue that was briefed received fair consideration, "even though its

1yecases

and terms and conditions of the Matthew Bender Master Agreement.

opinion summarily disposed of the issue with the mere statement that it did not consider the issue

meritorious or requiring discussion." Watson, 782 F.2d at 145. In this case, petitioner raised his

claims of ineffective assistance of counsel in a motion for leave to file a supplemental assignment of

error that the AFCCA denied, and then he raised them in a petition for review that the CAAF denied.

There is no indication from either of these denials of procedural matters that the claims were

reviewed and rejected on the merits.

1yecases

and terms and conditions of the Matthew Bender Master Agreement.

he received ineffective assistance of counsel because his attorneys failed to raise these issues, and

also because his appellate attorney failed to file a timely brief.

None of the petitioner's claims were litigated on the merits in the military courts. The claims

concerning the jury instruction and salary forfeiture were never raised in the military courts. Thus,

those claims are clearly unexhausted. The petitioner contends that he raised the ineffective

assistance of counsel claims in a timely manner. This objection lacks merit. In the military courts, the

accused has the right to raise any issues on appeal, in addition to the issues raised by{2019 U.S.

Dist. LEXIS 3} counsel. United States v. Grostefon, 12 M.J. 431, 436-37 (1982). Although the

petitioner exercised his right to raise additional issues, he did not raise the ineffective assistance of

counsel claims in his Grostefon brief. The petitioner later raised the ineffective assistance of counsel

claims in a motion for leave to file a supplemental assignment of error, but the Air Force Court of

Criminal Appeals (AFCCA) denied the petitioner leave to file the supplemental assignment of error.

The petitioner also raised the claims in a petition for review, but the United States Court of Appeal

for the Armed Forces (CAAF) exercised its discretion to deny review. Because none of the claims

raised in this petition were litigated on the merits in the military courts, the magistrate judge correctly

concluded that the claims are unexhausted.

The petitioner contends that the district court should consider the unexhausted claims because the

military courts will not review the claims in a habeas petition. However, claims that were not raised in

the military courts are deemed to be waived. Roberts v. Callahan, 321 F.3d 994, 995 (10th Cir.

2003). In order for a federal district court to review the merits of unexhausted, waived claims, the

petitioner must show cause for the procedural default and actual prejudice{2019 U.S. Dist. LEXIS 4}

resulting from the alleged error. Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d

808, 812 (10th Cir. 1993).

The petitioner objects to the magistrate judge’s conclusion that the petitioner had not demonstrated

cause for failing to exhaust his claims. The petitioner alleges that military authorities lost his copy of

the trial record while his appeals were pending, and that he did not receive a new copy until he was

working on this petition. The petitioner contends that the loss of his trial record is cause for the

default, however, the petitioner has not demonstrated that the trial record was lost before the first

Grostefon brief was filed, or that he could not have raised the issues without the trial record.

Next, the petitioner contends counsel's delay in filing the motion for leave to file a supplemental

assignment of error caused the procedural default. The record shows that the AFCCA affirmed the

petitioner's sentence on July 18, 2013. United States v. Verdeio-Ruiz, 2013 CCA LEXIS 680, 2013

WL 3972293 (A.F.C.C.A. July 18, 2013) (unpublished). On April 29, 2014, the AFCCA granted the

petitioner's motion for reconsideration and allowed him to file a supplemental assignment of error.

The petitioner actually filed two supplemental assignments of error, which raised a total of three new

issues. The petitioner contends that he requested his attorney(2019 U.S. Dist. LEXIS 5} to raise the

ineffective assistance of counsel claims in a third supplemental assignment of errorM on June 1,

2014, which the attorney filed on June 24, 2014. Although the AFCCA addressed the merits of the

issues raised in the first two supplemental assignments of error, the AFCCA found that the third

supplemental assignment of error was filed "well after the deadline for supplemental briefs to be

submitted in this case and after oral argument." United States v. Verdeio-Ruiz, 2014 CCA LEXIS

607, 2014 WL 4803023, at *2 (A.F.C.C.A. Aug. 14, 2014) (unpublished). The AFCCA denied the

motion to submit the third supplemental assignment of error because it was untimely and because

the petitioner "made no attempt to explain why [the ineffective assistance of counsel claims] could

not have been raised earlier." Id. The record reflects that the petitioner did not request his attorney to

raise the ineffective assistance of counsel claims in a timely manner. Therefore, the short delay in

filing is not the cause of the procedural default. The remainder of the petitioner’s objections concern

1 yecases

and terms and conditions of the Matthew Bender Master Agreement.

the merits of his claims. Because he has not shown cause for the procedural default, it is not

necessary for the Court to consider the merits of the claims, or whether the petitioner was prejudiced

by the{2019 U.S. Dist. LEXIS 6} alleged errors. Further, the petitioner has not shown that failing to

address the merits of his claims will result in a grave miscarriage of justice.

The Court has conducted a de novo review of the objections in relation to the pleadings and the

applicable law. See Fed. R. Civ. P. 72(b). After careful consideration, the Court concludes the

objections are without merit.

ORDER

Accordingly, the petitioner's objections (#25 and #28) are OVERRULED. The findings of fact and

conclusions of law of the magistrate judge are correct, and the report of the magistrate judge (#24) is

ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's

recommendation.

So Ordered this

Mar 5, 2019

Is/ Rodney Gilstrap

RODNEY GILSTRAP

UNITED STATES DISTRICT JUDGE

lyecases

and terms and conditions of the Matthew Bender Master Agreement.

7P.T

{

■

APPENDIX

Case: 19-40277

Document: 00515866733

Page: 1

Date Filed: 05/18/2021

0Sntte& States! Court of Appeals!

for tfjr Jftftf) Circuit

No. 19-40277

Rafael Verdejo Ruiz,

Petitioner—Appellant,

versus

Derek Edge, Warden, Federal Correctional

Institution, Texarkana,

Respondent—Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:18-CV-22

ON PETITION FOR REHEARING

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:

IT IS ORDERED that the petition for rehearing is DENIED.

APPENDIX

ncrtuyuMrvict\o ftin rurcoc lccial.urcrtAiiui\o a^jcinot

19 July 2017

AFLOA/JACE-LC

1500 W. Perimeter Road, Suite 1500

Joint Air Base Andrews, MD 20762

Technical Sergeant Rafael Verdejo

17670-035, A-3

Federal Correction Institution

Texarkana, TX, 75505-7000

Re: Court-Martial Documents Request Assistance

TSgt Verdejo:

Greetings. I hope this letter finds you well. I received your letter dated 24 June 2017,

requesting assistance in attaining records associated with your court-martial and appellate

process. I have enclosed the documents you requested. I made a request to TSgt Martin, the

paralegal at Air Force Appellate Defense, to print a copy of your electronic file. In addition, I

am enclosing my copy of your Record of Trial and my case file. Please note, that I do not have

another copy of the record of trial or the case file.

If you have any questions or require additional information, please contact me at 240-6124697 or michael.a.schrama.mil@mai1.mil.

Sincerely,

MICHAEL A. SCHRAMA, Major, USAF

Environmental Litigation Attorney

BREAKING BARRIERS...SINCE 1947

(

Case 5: 18-cv-00022-JRG,-*>MG Document 16 Filed 06/14/18 . age 1 of 29 PagelD #: 366

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS AIR FORCE LEGAL OPERATIONS AGENCY

10 May 2017

Lieutenant Colonel Nicholas W. McCue

Deputy Chief, Appellate Defense Division

1500 W. Perimeter Road, Suite 1100

Joint Base Andrews, Maryland 20762

Mr. Rafael Verdejo

FCI

P.O. Box 7000

Texarkana, TX 75505

Dear Mr. Verdejo

My office has received your letter dated 19 April 2017, requesting our assistance with

certain matters. It is my understanding that your former appellate defense counsel, Maj Shane

McCammon, has already forwarded you a copy of your record of trial. Our office no longer

retains a copy of your record of trial.

With regards to the other documents you are requesting, I have forwarded your letter to

your other former appellate defense counsel, Maj Michael Schrama. I informed Maj Schrama

about what happened to your personal items and advised him that I would be forwarding your

contact information to him. Please contact him at the below address:

Major Michael A Schrama

Environment Litigation Attorney

Air Force Legal Operations Agency

Comm: (240) 612-4680

1500 W. Perimeter Road, Suite 1500

Joint Base Andrews, Maryland 20762

Be advised that my office does not maintain your DD214, nor your Office of Special

Investigations (OSI) report of investigation (ROI). As for your legal documents, Maj Schrama

might be able to help you with those.

Sincerely

NICHOLAS W. McCUE, Lt Col, USAF

Deputy Chief, Appellate Defense Division

BREAKING BARRIERS...SINCE 1947

(53~)

19-40277?369^

APPENDIX

Case 5:18-cv-00022-JRG-Cn/lC Document 16 Filed 06/14/18 Page 26 of 29 PagelD #: 391

"NOTICE OF REQUEST"

To: Clerk U.S. District Court

Eastern District of Texas

Room 301 Federal Bldg

500 State Line Ave

Texarkana, TX 75501

From: Rafael Verdejo Ruiz #17670-035

FCI Texarkana

P.O. Box 7000

Texarkana, TX 75505

Re: Cease and Desist Request

PLEASE TAKE NOTICE, that I Rafael Verdejo Ruiz, sentient, moral being, request

that actions by members of my unit team, specifically, Mr. Amos (counselor) cease

and desist in his actions by limiting access to pertinent documents that I need

to pursue legal redress. Specifically, my Record of Trial and support documents

provided by my Appellate Attorney, Maj Schrama.

Upon arrival of my record of trial (ROT), it was opened, not in my precense,

further, I am unable to be in possession of said documents. I am only able to

view them in the precense of Mr. Amos which is limited due to his heavy work

load or lack of presence in his office.

Due to my right to appeal, I am being hindered in presenting arguments to

the Courts as I have to write-out any notes and copy (by hand) any documentation

I need in order to then go to the Law library and do my research and write out

any arguments. This has been extremely burdensome and unwarranted. This is a

further concern as in appeals, it is normal for a 30-day time limit to reply

to the courts. As the documentation is not readily available to me and when it

is available, I cannot take any documents with me to write my arguments, I have

to do too many unnecessary things in order to work on my case. This causes a

IV, V, and VI Constitutional Amendment Violation.

I respectfully request intervention for these actions to cease and desist,

that all ROT documentation be given to me immediately in order to pursue my legal

actions in a fair, accurate and timely manner and that no repercussions by any

staff member ensue due to my complaints. I have dealt with this process for aproximately

six months now and I am not content with attempting to work on my legal issues

while staff and inmates peruse the office or staff members watch football games

and take phone calls on my alleged "legal time."’

I, Rafael Verdejo Ruiz, declare under penalty of perjury that the above

information is true and correct.

^ Die 3-fcl7

s\ .

#17670-03 SN.

Date

. i

£v-C-’:

APPENDIX

TRULINCS 17670035 - VERDEJO RUIZ, RAFAEL - Unit: BML-S-A

FROM: 17670035

SUBJECl7°*Request to Staff*** VERDEJO RUIZ, RAFAEL, Reg# 17670035, BML-S-A

DATE: 07/07/2019 10:52:43 AM

To: R&D PROPERTY

Inmate Work Assignment: Unassigned

I have a pending case in the United States District Court, Eastern District of Texas, and in the United States Court of Appeals

for the Fifth Circuit, Case No. 5:18-CV-22.1 am in need of my property in order to respond and submit to the Courts.

I have been here since May from Texarkana FCI. Me and 2 other inmates travelled at the same time from Texarkana. They

have received their property, however, I have not.

pectfully requesting your assistance and verify if my property has been set aside. Upon arrival I was temporarily placed

I am res

in the SHU.

Thank You in Advance.

^iicAroAvc

to SWL- (V

TRULINCS 17670035 - VERDEJO RUIZ, RAFAEL - Unit: BML-S-A

FROM: 17670035

TO: R&D Property

Request to Staff*** VERDEJO RUIZ, RAFAEL, Reg# 17670035, BML-S-A

SUBJECT:

DATE: 07/24/2019 12:16:09 PM

To: R&D PROPERTY

Inmate Work Assignment: Unassigned

I am respectfully informing you that I am notifying the United States Court of Appeals for the Fifth Circuit that I STILL have not

received my personal property which is essential to respond to said court regarding my pending issues in the case. Case No.

19-40277. My personal property has my legal documentation and research papers necessary which I have not received from

your department. I have been in FCC Beaumont since May 9, 2019.1 arrived here from Texarkana FCI. All inmates that arrived

with me from Texarkana have received their property.

I wrote an electronic Cop-out to your department on 7/7/2019, (10:52:43 A.M.) regarding this same issue. Additionally, every

Tuesday I have gone and personally spoken to staff about my property. No property has been found and have been told that I

will be placed on call-out when my property arrives.

Very Respectfully Submitted.

-Rafael Verdejo Ruiz

ielecTr-cmc.

SVfC,

2-T3

TRULINCS 17670035 - VERDEJO RUIZ, RAFAEL - Unit: BML-S-A

FROM: 17670035

TO: R&D Property

SUBJECT: ‘“Request to Star** VERDEJO RUIZ, RAFAEL, Reg# 17670035, BML-S-A

DATE: 07/25/2019 02:52:26 PM

To: R&D Department

Inmate Work Assignment: Unassigned

I am submitting an Informal Resolution Attempt form.

See attachment.

Very Respectfully,

I/M Verdejo Ruiz

—-VERDEJO RUIZ, RAFAEL on 7/25/2019 2:50 PM wrote:

BMX1330.17A

September 12,2012

Attachment A

DOCUMENTATION OF INFORMAL RESOLUTION ATTEMPT

Bureau of Prisons Program Statement No. 1330.16, Administrative Remedy Program,

(December 31, 2007), requires, in most cases, that inmates attempt informal resolution of

grievances prior to filing a formal written complaint. This form shall be used to document

your efforts towards informally resolving your grievance.

Inmate Name: Rafael Verdejo Ruiz

Reg. No.: 17670-035

Unit: SA

Specific Complaint and Requested Relief: I respectfully request my inmate property as the

relief requested. I have not received my inmate property. This is the 3rd time my property is

lost or missing while in BOP custody. I arrived here from Texarkana FCI and all inmates that

traveled here with me from there have received their property.

Efforts Made By Inmate To Informally Resolve Grievance (be specific): I have gone to the

R&D Department every Tuesday on "Open House" hours seeking information as to my

property. I have explained that I have an active case in the courts. I have been told that

when my property arrives, I will be placed on "call-out." I have also written two electronic

cop-outs to the R&D Department concerning this issue which have not been responded.

First Electronic Cop-out sent 07/07/2019

Counselor's Comments: _____________________________________________________

Correctional Counselor's Review / Date

Unit Manager's Review / Date

APPENDIX

Case 5:18-cv-00022-JRG^,</lC Document 9-1 Filed 05/24/18 \ age 30 of 61 PagelD #: 278

1 June 2014

INEFFECTIVE ASSISTANCE OF COUNSEL:

TRIAL DEFENSE COUNSEL (TDC) FAILED TO INTERVIEW AND PRESENT POTENTIAL

WITNESSES THAT WOULD DISPROVE OR PRESENT REASONABLE DOUBT OF THE

GOVERNMENTS SUPPORTING EVIDENCE. TDC DID NOT PRESENT WITNESSES DURING

SENTENCING. TDC DID NOT CONTRADICT OR PRESENT REASONABLE DOUBT AS TO THE

TIMEFRAME OF THE ALLEGATIONS AND POSSIBLE RELATED CIRCUMSTANCES.

The government's supporting evidence was the 1168 and OSI video interrogation which was used

by the government to support CML as telling the truth. As the government and TDC know, a "confession"

requires evidence in addition to the confession as a test of reliability.

I filled out an 1168 form as directed by the agents and was not re-read my article 31 rights nor the

advisement at the end of the form prior to signing it. TDC argued that the statements were extracted by

the use of coercion and unlawful inducement. However, TDC did not present evidence or testimony to

prove that the statements were not fact. TDC did not contradict or present witnesses that would have

shown that my statements were not fact.

During the Motion to Suppress Evidence and to the jury members, TDC failed to show

inconsistencies that show a false coerced "confession" or reasonable doubt. For example:

CML Testimony: Last act was in car during reception decoration at night prior to the wedding. (R at 345)

My statement: "we had the wedding and at sometime I ran out and had brief intercourse with her..." (R. at

473, Prosecution exhibit 5)

Looking at this, we can see that CML testified the act in car ocurred the night prior to the wedding.

however my testimony is that sex in the car ocurred sometime after the wedding.

Then there is the issue regarding whom I had sex in the car with, to which I said it was Amanda,

but the Agents stated it was CML.

Agent SA2 states: "Listen, Rafael, it was you and Caitlyn. Okay?" (Pros. Exh. 4, page 36)

Agent SA1 states: "--we've got information that you and Caitlyn did something in that vehicle at one

time." (Pros. Exh. 4, page 25)

Note the ill description of the person I identify is not CML, who is taller than me at aprox. timehack

of 17:10:23 of the OSI video. CML was 5' 7inches (Def. exh. C, at 389) and I am 5' 6 inches (Pros. Exh. 4

at 4). The individual I describe is aprox. 6 inches shorter than me in video.

TDC did not attempt to contradict the government's sole supporting evidence which was the 1168

and OSI video. Comparing the 1168 and video to CML's testimony would have shown a false coerced

"confession" to the judge in the Motion to Suppress or to the jury to cause reasonable doubt.

TDC failed to present to the judge in the Motion to Suppress the fact that agents tried to

"guarantee" to me when speaking of keeping things confidential (see p.35, pros exh 4) and that the agent

read the article 31 rights once, which he minimized and did not read the warning at the bottom of the 1168

prior to me signing it. Also TDC failed to mention the fact that in my 10 years in the Air Force, I was always

the junior enlisted until I arrived at my last base. I never was in a direct leadership role. At my first base I

was the lowest ranking individual. At second base in Hawaii I was in a detached unit and was the lowest

ranking individual of 3 enlisted members. At third base, Korea MSgt Settle became my mentor teaching

me leadership roles, however I was not in a direct leadership position over anyone. Then I PCS’d to

Tyndall where I was not in charge of any individual and was eventually given the NCOIC task of

Standarization and Evaluations where I was the only enlisted. I never wrote preformance reports,

Counseling statements, etc. on any individual except a statement requested regarding a senior individual

during a TDY in where there were issues that required my details. This lack of me leading individuals and

always being taken care of by my leadership for 10 years only made me more vulnerable to the Agents

19-40277.281

{

Case 5:18-cv-00022-JRG-(>iviC Document 9-1 Filed 05/24/18 b~ge 31 of 61 PagelD #: 279

coupled with the loss of my daughter, the complications in birth of my son, delicate state of my wife,

threats on my career and promises given by the agents.

TDC did not interview potential witnesses. My mother, Dimaris Ruiz would have testified that in

the alleged timeframe, she was in possession of the car and that I did not use this car while she had it.

She would also have testified that I was not at the reception preparations. This is important because CML

testified that I was at the reception preparation and that I took her in said vehicle to get headache pills and

had sex with her in this car. The only admission available is me mentioning sex in my car, clarified with

whom by the agents as mentioned above.

Aside from my mother, TDC did not interview witnesses that could contradict the 1168 statement

and the government's witness. Other bridesmaids, groomsmen, people that assisted the reception

decorations could have testified that CML remained with her grandparents and that I was not at the

reception during decorations the night prior to the wedding. These same people could have testified of

CML's demeanor and interactions with her.

TDC failed to inform me that Mrs.Delfina Rivero would not be available at trial and did not educate

me on my option to request a delay of trial until Mrs. Delfina Rivero returned from Mexico. If I knew I could

request this, I would not have agreed to the Stipulation of Fact submission since Mrs. Rivero could directly

contradict Ricardo Rivero and CML. I was under the impression that there was no choice but to submit the

stipulation of fact or else have no witness testimony whatsoever.

TDC did not discuss their defense strategy with me. TDC only spoke to me about testifying in

Motion to Supress and did not prepare me to testify except allowing me to review the video once. I was

unaware of TDC's lack of witnesses since l was ordered by my First Sergeant and OSI to not speak about

the ongoing investigation and trial. I was only instructed by the Defense Paralegal to prepare an unsworn

statement. TDC also instructed me not to speak to any potential witnesses regarding the case.

TDC failed to present to the jury the fact that CML changed her statements from Mexico 2004 to

Oklahoma 2006 at the request of the government as testified by CML in article 32 which goes to test her

reliability by the jury. TDC failed to present their available witness that would corroborate the timeframe in

their defense motion ( R. at 15). TDC failed to present to the jury that CML's allegations could be related to

her "medical procedure" which the government did not want to disclose dates or documents. TDC had at

their disposal a witness to contradict or cause reasonable doubt to the government's evidence and witness

and did not act to present it to the jury.

TDC failed to present any witness during sentencing that would "humanize" me in front of the jury.

TDC did not present me as a good person, rather a "good performer." TDC could have presented Mrs.

Delfina Rivero who was CML's granmother and mother of Ricardo Rivero and Aunt of Lilliana Verdejo as

testimony of good character if TDC would have requested a delay of trial until Mrs. Rivero returned from

Mexico. TDC could have presented my brother, Miguel Verdejo, SSgt, USAF. My mother, Dimaris Ruiz.

My wife, Lilliana Verdejo. My father. A friend. A co-worker. A neighbor. Anyone that knew me. Not

presenting a "live" witness to the jury only portrayed me as an individual no one cared for that was a "good

performer."

DECLARATION UNDER PENALTY OF PERJURY

The undersigned declares (or certifies, verifies, or states) under penalty of perjury that he is the

petitioner/movant in the above action, that he has read the above pleading and that the information

contained therein is true and correct. 28 U.S.C. s. 1746.18 U.S.C. s. 1621.

Executed at Fort Leavenworth, Kansas on 1June. 2014.

(Location)

(Date)

CX—% J

(Siffiaturg)

19-40277.282

APPENDIX

23 August 2013

IN THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES,

Appellee,

Technical Sergeant (E-6)

RAFAEL VERDEJO-RUIZ,

USAF,

Appellant.

)

APPELLANT’S MOTION FOR LEAVE

TO FILE AND MOTION TO VACATE

)

Before Panel No. 1

Case No. ACM 37957

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS:

COMES NOW Appellant Technical Sergeant Rafael Verdejo-Ruiz, by and through his

undersigned counsel, and pursuant to Rule 23 of this Honorable Court’s Rules of Practice and

Procedure moves for leave to file his motion to vacate the decision of this Court, dated 18 July

2013, for the reasons set forth below. Appellant also hereby moves to vacate said decision.

Facts

On 25 June 2013, the Secretary of Defense, Chuck Hagel, issued a memorandum directed

to the Secretary of the Air Force that purported to appoint Mr. Laurence M. Soybel, a civilian

employee of the Department of the Air Force, as an appellate military judge to the Air Force

Court of Criminal Appeals (AFCCA). See Appendix. As authority of for this appointment,

Secretary Hagel cited “Title 5, United States Code, section 3101 etseqS Mr. Soybel served on

the panel that decided and issued the opinion in Appellant’s case.

Law

In Ryder v. United States, 515 U.S. 177, 188 (1995), the United States Supreme Court

held that a military appellant “is entitled to a hearing before a properly appointed panel” of a

(

[

■

service court of criminal appeals. “[P]roperly appointed,” id:, is a term of art and is a matter of

constitutional significance. The Appointments Clause of the Constitution provides that

[The President] shall nominate, and by and with the Advice and Consent of the

Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of

the supreme Court, and all other Officers of the United States, whose

Appointment are not herein otherwise provided for, and which shall be

established by Law: but the Congress may by Law vest the Appointment of such

inferior Officers, as they think proper, in the President alone, in the Courts of

Law, or in the Heads of Departments.

U.S. Const, art. II. § 2, cl. 2.

Under 10 U.S.C. § 866(a), each Judge Advocate General is to establish a court of

criminal appeals, whose appellate military judges may be commissioned officers or civilians.

Judge Advocates General are authorized to appoint officers as appellate judges; however, in

United States v. Carpenter, 37 M.J. 291, 294 (C.M.A. 1993) (citing U.S. CONST, art. II. § 2, ^ 2,

cl. 2), vacated on other grounds, 515 U.S. 1138 (1995), the Court of Military Appeals held that a

Judge Advocate General’s appointment of a civilian judge to a service court was a violation of

the Appointments Clause. Carpenter explained that the lowest-level official who can appoint a

civilian to a military appellate court is the head of a department, if authorized by Congress. Id.

Consistent with Carpenter's holding that only a department head can appoint civilian

judges to military appellate courts, Edmond v. United States, 520 U.S. 651, 666 (1997) upheld

the Transportation Secretary’s appointment of a civilian to the Coast Guard Court of Criminal

Appeals under 49 U.S.C. § 323(a).1 The Edmond Court’s decision was based on 49 U.S.C. §

323(a), which grants the Secretary authority to “appoint and fix the pay of officers and

employees of the Department of Transportation and may prescribe their duties and powers.”

(Emphasis added). The Court reasoned that although the statute did not specifically mention

1 Congress had at that time established the Coast Guard was a military service and branch of the Armed Forces only

in times of war; otherwise, it was part of the Department of Transportation. Id. at 656 (citing 14 U.S.C. §§ 1-3).

Coast Guard judges, the plain language of § 323(a) gives the Transportation Secretary power to

appoint them. Id. at 656. Edmond emphasized the need for a Congressional grant of authority

for a department head to appoint inferior officers, noting that the Excepting Clause states that

“the Congress may by Law vest the Appointment of such inferior Officers, as they think proper,

in the President alone, in the Courts of Law, or in the Heads of the Departments.” Id. at 660

(emphasis added).

Analysis

Mr. Soybel’s appointment under 5 U.S.C. § 3101 violated the Appointments Clause, as

this statute does not authorize the Secretary of Defense to appoint “inferior officers.” Such a

congressional grant of authority, the Supreme Court and the Court of Military Appeals have

emphasized, is necessary so that a department head can appoint a civilian as an appellate judge

on a service court. See Edmond, 520 U.S. at 658; Carpenter, 37 M.J. at 294

The statute the Secretary relies upon, 5 U.S.C. § 3101, does not confer power to appoint

Article 66 judges. Instead, it concerns only employee payment classifications, providing in its

entirety as follows: “Each Executive agency, military department, and the government of the

District of Columbia may employ such number of employees of the various classes recognized

by chapter 51 of this title as Congress may appropriate for from year to year.” 5 U.S.C. § 3101.

Chapter 51, in turn, concerns pay and allowances for employees.2

The language of 49 U.S.C. § 323(a) provided the Transportation Secretary with implied

authority to appoint judges to the Coast Guard Court. 5 U.S.C. § 3101 does nothing of the kind.

Absent from Chapter 51 is authority to define the “duties and powers” of officers as Congress

2 Chapter 51 provides a plan for classification of positions where the basic pay rate is determined and so “individual

positions will, in accordance with their duties, and qualification requirements, be so grouped and identified by

classes and grades.” See 5 U.S.C. § 5101, etseq.

{

provided the Transportation Secretary in 49 U.S.C. § 323(a).3 Congressional authorization is a

prerequisite for a department head to appoint civilians to the service courts of criminal appeals.

And, unlike the Secretary of Transportation, Congress has not empowered the Secretary of

Defense to make such appointments.

Because Secretary Hagel lacked the authority to appoint Mr. Soybel to the Air Force

Court of Criminal Appeals, the panel was improperly constituted. And, as the Supreme Court

held in Ryder, 515 U.S. at 188, a military appellant “is entitled to a hearing before a properly

appointed panel” of a service court of criminal appeals. This Court should, therefore, vacate its

decision and assemble a new panel of properly appointed appellate judges.

WHEREFORE, Appellant respectfully requests that this Honorable Court grant this

Very Respectfully Submitted,

motion.

'v.__

SHANE A. McCAMMON, Capt, USAF

Appellate Defense Counsel

Air Force Legal Operations Agency

United States Air Force

(240) 612-4770

MICHAEL A. SCHRAMA, Captain, USAF

Appellate Defense Counsel

Air Force Legal Operations Agency

United States Air Force

(240) 612-4770

3 Instead, 5 U.S.C. § 5103 vests this power in the Office of Personnel Management (OPM), rather than in the

Secretary of Defense. See also 5 U.S.C. § 5103 (granting OPM authority over Department of Defense positions); 5

U.S.C. § 5105(a) (OPM is to create classification “standards for placing positions in their proper classes and

grades”).

I '

CERTIFICATE OF FILING AND SERVICE

I certify that an electronic copy of the foregoing was electronically sent to the Court and

served on the Appellate Government Division on 23 August 2013.

SHANE A. McCAMMON, Capt, USAF

Appellate Defense Counsel

Air Force Legal Operations Agency

United States Air Force

(240) 612-4770

MICHAEL A. SCHRAMA, Captain, USAF

Appellate Defense Counsel

Air Force Legal Operations Agency

United States Air Force

(240) 612-4770

Case 5:18-cv-00022-JRG

-C .C Document 1-3 Filed 02/09/18 ( .ge 22 of 73 PagelD #: 131

6 September 2013

IN THE UNITED STATES COURT OP APPEALS FOR THE ARMED FORCES

UNITED STATES,

Appellee,

)

PETITION FOR GRANT OF REVIEW

)

Crim. App. Dkt. No. 37957

)

Technical Sergeant (E-6)

RAFAEL VERDEJO-RUIZ,

USAF,

Appellant.

)

USCA Dkt. No.

/AF

)

TO THE HONORABLE, THE JUDGES pF THE UNITED STATES COURT OF

APPEALS FOR THE ARMED FORCES:

The undersigned counsel, on behalf of Technical Sergeant

Rafael Verdejo-Ruiz, hereby petitions the United States Court of

Appeals for the Armed Forces for a grant of review of the

decision of the Air Force Court of Criminal Appeals, on appeal

. under Article 66, Uniform Code of Military Justice, 10 U.S.C. §

866, pursuant to the provisions of Article 67(a)(3), Uniform Code

of Military Justice, 10 U.S.C. § 867(a)(3).

Respectfully Submitted,

mt-'.

SHANE A. MCCAMMON, Captain, USAF

Senior Defense Counsel

U.S.C.A.A.F. Bar No. 33983

Air Force Legal Operations Agency

United States Air Force

Unit 5275 Box 415

APO AE 09461-5415

011-44-(0)1638-523-608

19-40277.136

Case 5:18-cv-00022-JRgC ,C Document 1-3 Filed 02/

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