Petition for Writ of Certiorari — Norbert A. King, II, Petitioner v. United States

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No. 23-_____

IN THE

Supreme Court of the United States

__________

NORBERT A. KING II,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Armed Forces

__________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

__________

TAMI L. MITCHELL

Counsel of Record

Law Office of Tami L. Mitchell

5390 Goodview Drive

Colorado Springs, CO 80911

(719) 426-8967

tamimitchelljustice@gmail.com

JENNA M. ARROYO, MAJ, USAF

Air Force Legal Operations

Agency

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

Counsel for Petitioner

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TABLE OF CONTENTS

Opinion of Court of Appeals for the Armed

Forces Feb. 23, 2023 .................................... 3a

Opinion of Air Force Court of Criminal

Appeals Aug. 16, 2021 ............................... 36a

Text of 10 U.S.C. § 801(14), Article 1(14),

UCMJ ....................................................... 207a

Text of 10 U.S.C. § 816(1)(A), Article 16(1)(A),

UCMJ ....................................................... 207a

Text of 10 U.S.C. § 829(a), Article 29(a),

UCMJ ....................................................... 208a

Text of 10 U.S.C. § 836, Article 36, UCMJ... 208a

Text of 10 U.S.C. § 866(c), Article 66(c),

UCMJ ....................................................... 208a

Text of 28 U.S.C. § 445(a) ............................. 209a

Text of R.C.M. 505(c)(2)(A)(i) ....................... 209a

Text of R.C.M. 505(c)(2)(B) ........................... 210a

Text of R.C.M. 505(f) .................................... 210a

Text of R.C.M. 813(c) .................................... 210a

Text of R.C.M. 902(a) .................................... 211a

Text of R.C.M. 1103(b)(2)(B), (D) ................. 211a

Text of R.C.M. 1103(b)(3) ............................ 211a

Text of Federal Rule of Appellate Procedure

10(a) and (e) ............................................. 212a

Excerpt of Appellate Exhibit LXV, “An Ethics

Guide for Part-Time Lawyer Judges”.….214a

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This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Norbert A. KING II, Lieutenant Colonel

United States Air Force, Appellant

No. 22-0008

Crim. App. No. 39583

Argued October 26, 2022—Decided February 23, 2023

Military Judges: J. Wesley Moore (arraignment and

motions), Steven J. Grocki (motions), and

Shaun S. Speranza (motions and trial)

For Appellant: Tami L. Mitchell, Esq. (argued); Mark

C. Bruegger, Esq. (on brief).

For Appellee: Major Brittany M. Speirs (argued);

Colonel Naomi P. Dennis, Lieutenant Colonel

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Matthew J. Neil, and Mary Ellen Payne, Esq. (on

brief); Major Morgan R. Christie.

Chief Judge OHLSON delivered the opinion of the

Court, in which Judge SPARKS, Judge HARDY, and

Senior Judge EFFRON joined. Judge MAGGS filed a

separate opinion concurring in the judgment. Judge

HARDY filed a separate concurring opinion.

_______________

Chief Judge OHLSON delivered the opinion of the

Court.

Contrary to his pleas, a panel of officer members

sitting as a general court-martial convicted Appellant

of one specification of sexual assault of his seventeenyear-old biological daughter and one specification of

committing an act of sexual penetration on his blood

relative, an offense not capital, in violation of N.J.

Stat. Ann. § 20:14-2(c)(3)(a) (West 2014), assimilated

into federal law by 18 U.S.C. § 13 (2012), in violation

of Articles 120 and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2012). The

adjudged

and

approved

sentence

included

confinement for three years and a dismissal. The

United States Air Force Court of Criminal Appeals

(CCA) set aside and dismissed with prejudice the

Article 134, UCMJ, charge and its specification,

affirmed the remaining findings, and affirmed the

reassessed sentence of confinement for three years

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and a dismissal. We granted review of the following

issue:

Was

Appellant’s

court-martial

improperly constituted because the

convening authority excused a member

after the court-martial was assembled

without establishing good cause on the

record for excusing him?

United States v. King, 82 M.J. 275, 275-76 (C.A.A.F.

2022) (order granting review). We answer the granted

issue in the negative and affirm the judgment of the

CCA.

I. Background

This case underscores the need for everyone

involved in a court-martial to pay meticulous

attention to the panel member selection process.

The original convening order applicable to

Appellant’s court-martial listed Lieutenant Colonel

(Lt Col) PBL as a primary panel member and Colonel

(Col) DL as an alternate panel member. At the time of

the court-martial’s assembly on April 16, 2018, there

were fifteen members present. These members

included Lt Col PBL but not Col DL. There is no

accounting on the record for Col DL’s absence.

To a large degree, Lt Col PBL is the focus of this

appeal. During group and individual voir dire he

indicated that he knew the accused and some of the

witnesses, and that he had previously served on a

court-martial. Lt Col PBL also revealed that he had

been arrested and falsely accused of rape by a

classmate when he was fifteen years old. He explained

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that “the charges were unfounded and later dismissed

and the accuser in the case was proved to be lying.”

The experience had been “[e]ye opening” for him, but

the justice system “worked out like it was supposed

to.” Lt Col PBL elaborated as follows:

I believe absolutely you can be accused of

a crime and I think that evidence will

speak for itself. So throughout the

process the truth came to light and that’s

what really matters in the justice

system. So that’s kind of what I realized

in the system. So if you do the process

and work it, it will work out like it’s

supposed to more often than not.

Upon inquiry by the military judge, both parties

specifically declined to challenge Lt Col PBL for cause.

Indeed, the military judge noted that the defense

“affirmatively desire[d] to have this court member on

this particular panel.”

After challenges for cause and the defense’s

peremptory challenge, Appellant’s court-martial was

left with five members. This included Lt Col PBL who,

as the senior member, served as the president of the

panel. However, due to a scheduling conflict with the

defense expert consultant, the military judge granted

a defense motion for an extended continuance of the

trial. The military judge then inquired whether the

continuance would affect any of the members’ ability

to remain on the court-martial. Lt Col PBL responded:

“[J]ust to be aware, my change of command is slated

for June but I am expected to PCS over to [another

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organization on base], which will keep me in place, but

I will just be in a different organization at that time.”

Although the military judge explained that the

members could be released upon a showing of good

cause, he also stated: “You also remain panel members

for this case and are expected to be available on that

particular date. As indicated, you were selected and

ordered by the Convening Authority in this case, this

is your primary duty.” The military judge then noted:

“We will enter a period of extended adjournment. . . .

[U]ntil 26 July.”

Appellant’s trial resumed on July 24, 2018, with a

new military judge, a new senior trial counsel, and

seven newly detailed panel members. However, three

members of the original panel were absent from this

court-martial session even though they remained on

Appellant’s court-martial panel. As for two other

members of the original panel, including Lt Col PBL,

an amendment to the convening order placed into the

record showed that they had been “relieved” by the

convening authority. 1

1 At an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012),

session held at the beginning of the court-martial proceedings on

July 24, 2018, trial counsel referenced Special Order A-14 and

noted that a copy had been “furnished to the military judge,

[defense] counsel, and the accused, and . . . at this point will be

inserted in the record.” Special Order A-14 was signed by the

staff judge advocate on behalf of the convening authority and

stated in relevant part: “The following members are detailed to

the general court-martial convened by Special Order A-8, this

headquarters dated 11 April 2018, vice [Lt Col PBL] and [Lt Col

KMW] relieved.”

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Despite this status of the panel members, at the

outset of the court-martial the following exchange

occurred between the military judge and the

Government:

MJ: And those members that are absent

were relieved by the convening

authority, correct?

TC: Yes, Your Honor.

....

STC: Sorry, Your Honor. The members

that are absent were at a previous

hearing. They are still on the panel they

are just not present. The others were

excused at an earlier session.

(Emphasis added.)

As demonstrated above, the assertion by the senior

trial counsel that Lt Col PBL and another panel

member had been excused at an earlier court-martial

session was wrong. However, the military judge did

not correct the senior trial counsel even though the

amendment to the convening order which had been

placed into the record minutes earlier contradicted

this assertion. And importantly, trial defense counsel

did not object to the Government’s misstatement. In

fact, Appellant did not challenge the composition of

the court-martial panel at any point in the trial

proceedings, raising the issue for the first time on

appeal to the CCA.

Appellant’s general court-martial panel ultimately

was composed of five members, three original

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members and two newly detailed members. It was this

panel that convicted Appellant of the Article 120 and

Article 134 offenses and sentenced him to confinement

for three years and a dismissal.

On appeal to the CCA, Appellant raised various

assignments of error, including “whether the courtmartial was improperly constituted.” United States v.

King, No. ACM 39583, 2021 CCA LEXIS 415, at *2,

2021 WL 3619892, at *1 (A.F. Ct. Crim. App. Aug. 16,

2021) (unpublished). In rendering its opinion, the

CCA explained:

In response to this assignment of

error, the Government moved to attach a

declaration of Colonel (Col) WA, the staff

judge advocate to the general courtmartial convening authority. Col WA’s

declaration includes several attachments

which document the written excusal

request[] of Lt Col PBL, dated 14 June

2018, . . . as well as the staffing package

showing the convening authority’s

decision to excuse [Lt Col PBL]. We

granted the motion to attach Col WA’s

declaration and the attachments over

Appellant’s objection. We understand

that we are permitted to consider

declarations from outside the record of

trial when necessary to resolve issues

raised by materials in the record of trial.

See United States v. Jessie, 79 M.J. 437,

442-44 (C.A.A.F. 2020). This permits us

to consider the declaration of Col WA and

the attachments. Taken together, these

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documents show that Lt Col PBL was not

reassigned to another unit on [Joint Base

McGuire-Dix-Lakehurst, New Jersey as

he had previously expected] but [instead]

was selected for Air War College on 7

June 2018 and had a PCS to Maxwell Air

Force Base, Alabama, not later than 18

July 2018. . . .

In his written advice to the general

court-martial convening authority, Col

WA, citing R.C.M. 505(c)(2), stated

excusal after assembly may only be done

for “good cause on the record.” Col WA

defined “good cause” consistent with

R.C.M. 505(f) and explained that it does

not include temporary inconveniences

which are incident to normal conditions

of military life. The general courtmartial convening authority excused Lt

Col PBL . . . by initialing next to [his]

name[].

Id. at *40-42, 2021 WL 3619892, at *14.

After considering the staff judge advocate’s

declaration and its attachments, the CCA denied

relief on Appellant’s claim that his court-martial was

improperly constituted. Id. at *46-60, 2021 WL

3619892, at *14-18. Specifically, the CCA first

determined that Appellant had forfeited this issue by

failing to raise it at trial. Id. at *46, 2021 WL 3619892,

at *15. Then, applying a plain error analysis, the

lower court concluded that “it was plain or obvious

error when the Government failed to show good cause

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for [Lt Col PBL’s] excusal on the record.” Id. at *52,

2021 WL 3619892, at *17. Despite this finding of plain

error, the CCA next determined that Appellant was

not entitled to relief because there was no material

prejudice to a substantial right. Id. at *54-59, 2021

WL 3619892, at *17-18. After considering the

remaining issues, the CCA affirmed the Article 120

conviction and its reassessed sentence of confinement

for three years and a dismissal. Id. at *5, *186, 2021

WL 3619892, at *2, *57.

II. Standards of Review

In resolving this case, we need to address issues

related to waiver, the attachment of documents on

appeal, jurisdiction, and prejudice. These issues

implicate multiple standards of review.

We review whether an issue is waived de novo.

United States v. Rich, 79 M.J. 472, 475 (C.A.A.F.

2020). We review whether a lower court properly

attached documents for an abuse of discretion. See

United States v. Akbar, 74 M.J. 364, 409 (C.A.A.F.

2015). We review the issue of jurisdiction de novo.

United States v. Begani, 81 M.J. 273, 276 (C.A.A.F.

2021). And finally, “[o]ur review for prejudice is de

novo.” United States v. Sigrah, 82 M.J. 463, 467

(C.A.A.F. 2022).

III. Discussion

A. Waiver

As a preliminary matter, the Government contends

that Appellant waived by operation of law his claim

that the court-martial was improperly constituted.

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Rule for Courts Martial (R.C.M.) 905(e). The

Government notes that the 2016 version of the R.C.M.

applies to this case, which states in relevant part:

Other motions, requests, defenses, or

objections [not required to be raised

before pleas under R.C.M. 905(b)], except

lack of jurisdiction or failure of a charge

to allege an offense, must be raised

before the court-martial is adjourned for

that case and, unless otherwise provided

in this Manual, failure to do so shall

constitute waiver.

R.C.M. 905(e) (2016 ed.) (emphasis added). The

Government then correctly points out that this Court

cannot review waived issues because a valid waiver

leaves no error to correct on appeal. See Rich, 79 M.J.

at 476.

We conclude, however, that Appellant has not

waived this issue but merely forfeited it. First, in the

past this Court typically has viewed court-martial

composition issues through a forfeiture lens rather

than a waiver lens. See, e.g., United States v. Mack, 58

M.J. 413, 417 (C.A.A.F. 2003) (“Absent objection, any

alleged defects in the administrative process [of

excusing primary members and adding substitute

members] are tested for plain error.”). 2 And second,

2 See also United States v. Adams, 66 M.J. 255, 257, 259

(C.A.A.F. 2008) (reviewing member selection issue even though

the defense had an “opportunity to object to the appointing order

or the procedure” but did not); United States v. Sargent, 47 M.J.

367, 368, 369 (C.A.A.F. 1997) (noting that defense counsel did

not object to proceeding without” a member and finding that “ap-

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we recently noted in United States v. Bench that there

is “debate about the meaning of the word ‘waive[d]’ in

R.C.M. 905(e),” and we determined that forfeiture was

the prudent approach to take under the

circumstances. 82 M.J. 388, 393 (C.A.A.F. 2022)

(alteration in original). Thus, we conclude that the

language of R.C.M. 905(e) does not mandate a waiver

analysis in the member selection context. United

States v. Cook, 48 M.J. 434, 436 (C.A.A.F. 1998)

(noting although the “dispute about the composition of

the panel [prior to assembly] . . . did not concern

appellant at trial,” this Court reviewed the issue for

plain error). 3 Because forfeiture rather than waiver

applies here, we will review Appellant’s issue for plain

error.

pellant has not demonstrated substantial prejudice. Art. 59(a)”);

cf. United States v. Vazquez, 72 M.J. 13, 17 (C.A.A.F. 2013)

(“treat[ing] the failure to object [to the procedure established in

Article 29(b), UCMJ, 10 U.S.C. § 829(b) (2006)] as forfeiture and

review[ing] for plain error”). Indeed, when reviewing member selection issues in the past, this Court has used the term “waiver”

despite applying a plain error analysis. Cook, 48 M.J. at 436;

United States. v. McElroy, 40 M.J. 368, 371 n.2 (C.M.A. 1994).

This reflects the past reality of “the failure of military courts to

consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’ ” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)

(citing United States v. Harcrow, 66 M.J. 154, 156 n.1 (C.A.A.F.

2008)).

3 R.C.M. 905(e)(2) (2019 ed.) now provides: “Other motions,

requests, defenses, or objections, except lack of jurisdiction or

failure of a charge to allege an offense, must be raised before the

court-martial is adjourned for that case. Failure to raise such

other motions, requests, defenses, or objections, shall constitute

forfeiture, absent an affirmative waiver.” (Emphasis added.)

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B. Attachment of Documents on Appeal

In the course of deciding this case, we next must

determine whether it is appropriate for this Court to

consider the documents which the CCA attached to

the appellate record and which contain information

about the convening authority’s decision to excuse Lt

Col PBL from Appellant’s court-martial panel. As

indicated above in the excerpt from the CCA opinion,

these documents included Lt Col PBL’s written

excusal request, the staff judge advocate’s advice, and

the convening authority’s decision to excuse Lt Col

PBL, all of which collectively demonstrated why Lt

Col PBL was no longer detailed to Appellant’s courtmartial. For the reasons set forth below, we conclude

that the CCA did not abuse its discretion in attaching

these documents and that we may consider them in

reaching our decision in this case.

Although in United States v. Jessie we held that “a

CCA cannot consider matters outside the ‘entire

record,’ ” we further opined that CCAs may attach

documents “when doing so is necessary for resolving

issues raised by materials in the record.” 79 M.J. 437,

444 (C.A.A.F. 2020) (quoting Article 66(c), UCMJ, 10

U.S.C. § 866(c) (2012)). At Appellant’s court-martial,

the convening order stating that Lt Col PBL was

“relieved” from the panel had been “inserted in the

record.” Further, the military judge inquired on the

record about the status of all absent panel members,

prompting the senior trial counsel to erroneously state

that Lt Col PBL had been “excused at an earlier

session.” Nevertheless, the record did not provide the

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CCA with information about the circumstances under

which Lt Col PBL had been relieved or excused, and

the documents were necessary to resolve the question

of whether the panel was improperly constituted.

Thus, the CCA acted within the parameters of our

Jessie decision when it decided to attach and consider

the documents at issue here. 4

Consistent with our decision in Jessie, we further

note that it would be incongruous for this Court to

allow a defense counsel to wait until appeal to raise

for the first time an excusal issue that had not been

previously raised at trial, but then prevent the

government from having an opportunity to effectively

respond to that issue by blocking the government’s

efforts to attach relevant documents on appeal. To do

so would result in appellants automatically getting a

new trial even in those instances where a defense

counsel

“sandbagged”

the

government

by

intentionally failing to raise an excusal issue at trial.

We decline to adopt that approach.

4 Appellant asserts that Jessie is inapposite to the instant

case. Specifically, he argues that Jessie refers to “the entire record” which can include such material as post-trial submissions,

but that R.C.M. 505(c)(2)(A)(i) (2016 ed.) refers to good cause

“shown on the record” which means that the matter must have

been “discussed in open court in a manner such that it can be

seen in the printed transcript or heard in the audio recording of

the in-court sessions.” Reply Brief on Behalf of Appellant at 6,

United States v. King, No. 22˗0008 (C.A.A.F. June 10, 2022) (internal quotation marks omitted). We disagree. We conclude that

Jessie is on point in this case and that the phrase “shown on the

record” encompasses “the entire record.”

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We therefore hold that the CCA did not abuse its

discretion by attaching relevant materials that were

outside the record to resolve Appellant’s member

selection issue, and we will consider these documents

in the course of deciding the granted issue.

C. Jurisdiction

1. Applicable Law

We next turn our attention to the very heart of this

case—the question of whether the court-martial was

properly constituted.

“[C]ourt members are, unless properly waived, an

indispensable jurisdictional element of a general

court-martial.” United States v. Ryan, 5 M.J. 97, 101

(C.M.A. 1978). Military law distinguishes between the

excusal of detailed members before and after

assembly. See R.C.M. 505(c)(1)-(2) (2016 ed.); R.C.M.

911 Discussion (2016 ed.) (“Assembly of the courtmartial is significant because it no longer take place

without good cause . . . .”). “Prior to assembly of the

court-martial, the convening authority has unfettered

power to excuse any member of the court from

participating in the case.” Cook, 48 M.J. at 436

(emphasis added) (citing Article 25(e), UCMJ, 10

U.S.C. § 825(e)); R.C.M. 505(c)(1)(A) (2016 ed.).

However, after assembly:

No member of a general or special courtmartial may be absent or excused . . .

unless excused as a result of a challenge,

excused by the military judge for

physical disability or other good cause, or

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excused by order of the convening

authority for good cause.

Article 29(a), UCMJ, 10 U.S.C. § 829(a) (2012)

(emphasis added). Consistent with this statute,

R.C.M. 505(c)(2)(A) (2016 ed.) states in relevant part:

“After assembly no member may be excused, except:

(i) By the convening authority for good cause shown

on the record . . . .”

After assembly, new members may only be detailed

to a court-martial panel if the panel has fallen below

quorum due to lawful excusals. Article 29(b)(1),

UCMJ; R.C.M. 505(c)(2)(B) (2016 ed.). If the courtmartial is below quorum, “the trial may not proceed

unless the convening authority details new members

sufficient in number to provide” a quorum. Article

29(b)(1), UCMJ.

“This Court’s case law distinguishes between

jurisdictional and administrative errors in the

convening of a court-martial. Jurisdictional error

occurs when a courtmartial is not constituted in

accordance with the UCMJ.” Adams, 66 M.J. at 258.

“A court-martial composed of members who are barred

from participating by operation of law, or who were

never detailed by the convening authority, is

improperly constituted and the findings must be set

aside as invalid” because such error is jurisdictional.

Id. On the other hand, “[a]dministrative errors in the

drafting of a convening order are not necessarily fatal

to jurisdiction, and may be tested for prejudice under

Article 59(a), UCMJ, 10 U.S.C. § 859(a).” Id. at 259;

Cook, 48 M.J. at 436 (“Any error with respect to such

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an administrative

prejudice.”).

matter

must

be

tested

for

2. Analysis

We conclude that the error in this case arising from

the Government’s failure to document at trial the

convening authority’s reason for excusing Lt Col PBL

was not jurisdictional in nature.

As a foundational legal point, we note that in prior

cases this Court has treated as an administrative

error the government’s failure to place on the record

the reason that existed for excusing a panel member.

United States v. Matthews, 17 C.M.A. 632, 635-36, 38

C.M.R. 430, 433-34 (1968) (stating the error of not

establishing on the record good cause for the member

excusal was “not jurisdictional”); see also United

States v. Latimer, 30 M.J. 554, 563 (A.C.M.R. 1990)

(“it is generally agreed that noncompliance with

Article 29(a), UCMJ, is not jurisdictional error,

provided a quorum remains” (citations omitted)).

These precedents control in the instant matter.

We next note that there was indeed “good cause”

for the convening authority to excuse Lt Col PBL from

the panel. To begin with, there is nothing in the record

that indicates that Lt Col PBL’s unanticipated

assignment to the Air War College was just a pretext

to remove him from Appellant’s court-martial panel. 5

5 Appellant asserts that he was wrongly accused of sexual

assault and notes that during voir dire Lt Col PBL stated that

he also had been wrongly accused of sexual assault, perhaps

leading the Government to surmise that Lt Col PBL—who was

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And critically, as seen below, Lt Col PBL’s assignment

to the Air War College—which began before the

commencement of Appellant’s continued trial— was a

proper reason to excuse Lt Col PBL under the rules. 6

R.C.M. 505(f) (2016 ed.) states in pertinent part

that good cause includes “military exigency . . . and

other extraordinary circumstances which render the

member . . . unable to proceed with the court-martial,”

but good cause does not include “temporary

inconveniences which are incident to normal

conditions of military life.” For an officer such as Lt

Col PBL, who was initially assigned to serve on

Appellant’s court-martial panel at Joint Base

McGuire-Dix-Lakehurst in New Jersey, his

subsequent assignment to the intensive Air War

College in Montgomery, Alabama, was not just a

“temporary inconvenience[]” but instead was a

“military exigency . . . and other extraordinary

circumstance[]” which merited his excusal.

Therefore, considering the documents properly

attached by the CCA, we conclude that there was good

cause for the convening authority to excuse Lt Col

slated to serve as the president of the panel—would have been

sympathetic to Appellant’s claims at trial.

6 Indeed, at oral argument, Appellant did not challenge Lt

Col PBL’s assignment to the Air War College as being insufficient to show good cause for the excusal. Instead, Appellant’s position was that this Air War College rationale was not shown on

the record. Also, in Appellant’s reply brief, he stated that “Appellant does not argue that selection for professional military education may never qualify as ‘good cause’ for excusing a member

from court-martial service.” Reply Brief on Behalf of Appellant

at 17, United States v. King, No. 22-0008.

20a

PBL, and thus the Government’s error in failing to

note the convening authority’s reasoning on the trial

record was not jurisdictional but rather was

administrative in nature. 7 As a final step in our

analysis, we turn to the issue of prejudice.

7 In addition to his arguments regarding Lt Col PBL, Appellant

asserts that there was jurisdictional error because of the

unexplained status of Col DL. Appellant’s reasoning is summarized as follows: Because Col DL was a detailed member to Appellant’s court-martial, he should have been counted towards

quorum. As a result, even assuming that Lt Col KW’s excusal

was proper, Appellant’s court-martial never fell below quorum

because there were still five panel members—the four other

members impaneled after voir dire, including Lt Col PBL, and

the detailed alternate member, Col DL, who had not been relieved after assembly of Appellant’s court-martial. That is, Lt Col

PBL and Col DL had not been properly excused under R.C.M.

505(c)(2)(A) (2016 ed.), so they were still members. Be-cause the

excusals of Lt Col PBL and Col DL were not shown on the record

under R.C.M. 505(c)(2)(A)(i) (2016 ed.), Appellant’s court-martial

never fell below quorum, and the convening authority did not

have the authority to detail new members under R.C.M.

505(c)(2)(B) (2016 ed.). As a result, the convening authority’s

appointment of new members was unlawful, and these putative

new members of the panel were actually interlopers. Thus, there

was jurisdictional error in this case.

We are unpersuaded by Appellant’s argument. Appellant

does not challenge before this Court the excusal of the other original member—Lt Col KW—and the CCA found this member’s

excusal was supported by “sufficient good cause shown on the

record.” King, 2021 CCA LEXIS 415, at *53, 2021 WL 3619892,

at *17. In light of our conclusion that Lt Col PBL’s excusal also

was proper, the court-martial panel dropped below quorum even

considering Col DL’s unexplained and unchallenged absence.

The convening authority was then authorized to detail additional members to the court-martial when the court-martial fell

21a

D. Prejudice

The administrative error committed by the

Government in this case is reviewed for plain error.

This standard of review is applicable because

Appellant did not challenge at trial the Government’s

failure to show good cause on the record for excusing

Lt Col PBL.

Under the plain error standard of review, an

appellant “bears the burden of establishing: (1) there

is error; (2) the error is clear or obvious; and (3) the

error materially prejudiced a substantial right.”

United States v. Robinson, 77 M.J. 294, 299 (C.A.A.F.

2018).

The

Government

commendably

and

appropriately concedes the first two prongs of this

test, stating that “there was an administrative error

under R.C.M. 505(c)(2)(A)(i) when no good cause was

shown on the record for the excusal of Lt Col [PBL]”

and that this “was plain and obvious error.” Brief for

Appellee at 13, 24, United States v. King, No. 22˗0008

(C.A.A.F. May 31, 2022). As a result, the only issue left

for this Court to consider is whether Appellant has

met his burden of showing prejudice arising from the

below quorum. Article 29(b)(1), UCMJ; R.C.M. 505(c)(2)(B) (2016

ed). Following additional voir dire and member challenges of the

replacement members, Appellant’s court-martial constituted a

quorum of five members. Because there was a quorum of five

properly appointed members, Appellant’s general court-martial

had jurisdiction over his case. Article 16(1)(A), UCMJ, 10 U.S.C.

§ 816(1)(A) (2012).

22a

Government’s failure at trial to place on the record the

good cause for excusing Lt Col PBL. 8

We conclude that Appellant has not met his

burden. We initially note that an accused is not

entitled to a specific panel member. See United States

v. Easton, 71 M.J. 168, 176 (C.A.A.F. 2012) (noting

that military accused do not have the right to have

their cases tried by a particular court). Moreover,

despite the false accusation of rape against Lt Col

PBL, it is rank speculation that he would have been

favorable to the defense as a panel member.

Appellant claims that because the Government

failed to raise at trial the reason why the convening

authority “relieved” Lt Col PBL from serving on the

court-martial, he “was denied the opportunity to

investigate the legitimacy of Lt Col PBL’s request for

excusal and litigate the issue at trial.” Brief for

Appellant at 26-27, United States v. King, No. 22˗0008

(C.A.A.F. Apr. 28, 2022). Appellant makes a fair point.

However, we note that Appellant was fully aware of

Lt Col PBL’s absence at trial and this issue was raised

by the military judge and the Government on the

record, and yet Lt Col PBL’s absence did not elicit an

objection or even a comment, question, or concern by

the defense. If Appellant had raised this issue in any

manner during the court-martial, he most certainly

would have been provided “the opportunity to

investigate the legitimacy of Lt Col PBL’s request for

8 There is no constitutional error here, and as such, the burden is on Appellant to show prejudice. United States v. Tovarchavez, 78 M.J. 458, 462 & n.6 (C.A.A.F. 2019).

23a

excusal and litigate the issue at trial.” Id. at 26.

Therefore, by not objecting at trial, Appellant shares

responsibility for creating the situation about which

he now complains and for precluding the timely

resolution of the matter. United States v. Marshall, 67

M.J. 418, 419 (C.A.A.F. 2009) (“The purpose of the

forfeiture rule is to ensure that the trial judge has the

opportunity to rule on issues arising at trial, and to

prevent the raising of such issues for the first time on

appeal, after any chance to correct them has

vanished.” (footnote omitted)).

Additionally, consistent with the explanation

provided in supra note 7 we conclude that contrary to

Appellant’s assertion, the excusal of Lt Col PBL did

not result in any interlopers sitting on the panel. An

interloper is understood to be one “who was not

detailed at all to the courtmartial on which he sat.”

United States v. Gebhart, 34 M.J. 189, 192 (C.M.A.

1992). Here, the convening authority properly detailed

additional members to the panel when it fell below

quorum—which was his right. See Article 29(b)(1),

UCMJ.

Finally, we note that the change in the members of

the panel did not change the number of votes

Appellant needed to obtain an acquittal because there

were still five panel members. See Article 52(a)(2),

UCMJ, 10 U.S.C. § 852(a)(2) (2012).

Based on these factors, we conclude that although

Appellant can meet the first two prongs of the plain

error standard of review, he fails to establish

24a

prejudice. 9 Accordingly, we hold that even though the

convening authority excused a panel member after the

court-martial was assembled without placing on the

trial record the good cause that existed for doing so,

Appellant’s request that we set aside his conviction

and sentence must be denied because he has failed to

demonstrate

prejudice

arising

from

this

administrative error.

IV. Judgment

The judgment of the United States Air Force Court

of Criminal Appeals is affirmed.

9 Appellant claims that a presumption of prejudice applies

because (1) the failure to show good cause on the record is like an

incomplete record of trial and (2) there is an Article 29 violation.

We disagree. The excusal documents were not a part of the record

of trial, and so the omission of those documents did not make the

record incomplete. And when the CCA properly attached those

documents, that material demonstrated the good cause the

convening authority had for excusing Lt Col PBL.

25a

Judge MAGGS, concurring in the judgment.

Appellant contends that his court-martial was

improperly constituted. His argument is that a

detailed panel member was absent without being

excused by the convening authority for “ ‘good cause

shown on the record’ ” in violation of Rule for CourtsMartial (R.C.M.) 505(c)(2)(A)(i). 1 The Government

responds that the objection that Appellant now raises

was waived by operation of law under R.C.M. 905(e)

because Appellant did not make the objection at trial.

The Government asserts that we therefore cannot

consider it. The Court today holds that Appellant did

not waive his objection but merely forfeited it.

Accordingly, the Court determines that it must review

the issue for plain error. Applying plain error review,

the Court determines that Appellant has

demonstrated an error, that the error was clear and

obvious, but that Appellant has not shown that this

error caused him prejudice. The Court therefore

concludes that Appellant is not entitled to relief.

I reach the same result as the Court but for a

different reason. Unlike the Court, I agree with the

Government that Appellant’s objection was waived by

operation of law and not merely forfeited. I write

separately to explain my disagreement.

1 The parties agree that the version of the R.C.M. that appears in the Manual for Courts-Martial, United States (2016 ed.)

(MCM), applies to this case.

26a

I.

Waiver differs from forfeiture. When an objection

to an alleged error is waived, this Court cannot review

the objection on appeal. United States v. Rich, 79 M.J.

472, 476 (C.A.A.F. 2020). In contrast, if the objection

is merely forfeited, this Court may review the issue for

plain error. United States v. Gladue, 67 M.J. 311, 313

(C.A.A.F. 2009). When conducting a plain error review

of a nonconstitutional issue, this Court may grant

relief only if the appellant proves that there was an

error, that the error was clear and obvious, and that

the error caused material prejudice. United States v.

Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018).

In this case, Appellant did not object to the absence

of a member of his court-martial until after his trial

was over. R.C.M. 905(e) specifies the “[e]ffect of failure

to raise defenses or objections.” This provision

contains three sentences. The first two sentences are

not applicable to this case because they concern only

the pretrial objections listed in R.C.M. 905(b)(1)-(6),

which do not include an objection based on the absence

of an unexcused court member. Id. The third sentence

then says: “Other motions, requests, defenses, or

objections, except lack of jurisdiction or failure of a

charge to allege an offense, must be raised before the

court-martial is adjourned for that case and, unless

otherwise provided in this Manual, failure to do so

shall constitute waiver.” Id.

The Government argues that Appellant’s objection

to the composition of his court-martial fits within the

third sentence of R.C.M. 905(e). I agree. Appellant’s

27a

objection is an example of the “[o]ther . . . objections”

that the third sentence of R.C.M. 905(e) contemplates

because it is not one of the objections listed in R.C.M.

905(b)(1)-(6). The Government therefore argues that

the objection is waived by operation of law. I also agree

with this assessment. Appellant’s objection is one that

“must be raised before the court-martial is adjourned.”

Accordingly, because Appellant did not raise it, I

conclude that his “failure to do so . . . constitute[s]

waiver” under the plain meaning of R.C.M. 905(e). 2

2 The President’s decision to use the term “waiver” in the

third sentence of R.C.M. 905(e) did not violate Article 36,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836 (1982),

the statute that authorized the President to promulgate the rule

in 1984. Article 36, UCMJ, granted the President discretion to

prescribe procedural rules that conform “so far as he considers

practicable” to the rules applied in criminal cases tried in the

United States district courts. The article, however, did not

require the President to explain why he considered it practicable

to follow some of the Federal Rules of Criminal Procedure but not

others. Reviewing this Court’s past decisions, Judge Everett has

written that “the President’s determination of practicability

seems nonreviewable, unless it clashes with a specific provision

of the Uniform Code or the Constitution.” Robinson O. Everett,

Some Comments on the Role of Discretion in Military Justice, 37

Law & Contemp. Probs. 173, 180 (1972). But even if this Court

were to insist that the President’s determination of practicability have some rational basis, that standard would be easily met

here.

When the Joint Service Committee on Military Justice (JSC)

drafted the MCM (1984 ed.), it announced that the first of its

“basic goals” was that “the new Manual was to conform to Federal practice to the extent possible, except where the Uniform

Code of Military Justice requires otherwise or where specific military requirements render such conformity impracticable.”

28a

II.

The question of whether Appellant waived or

forfeited his objection would require no more

discussion except for one significant problem: our

precedents concerning the consequences of failing to

make objections to the composition of courts-martial

are all over the map. In at least one precedent, this

MCM, Analysis app. 21 at A21-1 (1984 ed.) (citing Article 36,

UCMJ) [hereinafter Analysis]. Accordingly, the JSC carefully

considered analogous provisions in the Federal Rules of Criminal Procedure when it drafted R.C.M. 905(e). In its Analysis of

R.C.M. 905(e), the JSC explained:

The first two sentences in this subsection are

taken from Fed. R. Crim. P. 12(f) . . . . The third

sentence is based on paragraph 67a of MCM,

1969 (Rev.). The Federal Rules of Criminal

Procedure do not expressly provide for waiver of

motions other than those listed in Fed. R. Crim.

P. 12(b) . . . . Nevertheless, it has been contended

that be-cause Fed. R. Crim. P. 12(b)(2) provides

that lack of jurisdiction or failure to allege an

offense “shall be noticed by the court at any time

during the pen-dency of the proceedings,” “it

may, by negative im-plications be interpreted as

foreclosing the other defenses if not raised during

the trial itself.” 8A J. Moore, Moore’s Federal

Practice ¶ 12.03[1] (1982 rev. ed.). . . . There is no

reason why other motions should not be waived

if not raised at trial. Moore’s, supra at ¶ 12.03[1];

accord C. Wright, Federal Practice and Procedure

§ 193 (1969).

Id. at A21-47-A21-48. Although the JSC’s Analysis “does not

necessarily reflect the views of the President in approving” the

R.C.M., id. at A21-3, the explanation in the Analysis identifies a

rational basis for the President’s exercise of discretion in using

the word “waiver” in the third sentence of R.C.M. 905(e).

29a

Court has held that an objection to the composition of

a court-martial “was waived” because “it was not

raised at trial,” and the Court accordingly did not

review the issue. United States v. Curtis, 44 M.J. 106,

133 (C.A.A.F. 1996). Other precedents, however, have

treated the failure to raise such objections as a

forfeiture and have applied plain error review. E.g.,

United States v. Mack, 58 M.J. 413, 417 (C.A.A.F.

2003); United States v. Adams, 66 M.J. 255, 257, 259

(C.A.A.F. 2008); United States v. Sargent, 47 M.J. 367,

368, 369 (C.A.A.F. 1997). Still others have stated that

a failure to raise such objections constitutes a “waiver”

but then have applied what appears to be plain error

review nonetheless. E.g., United States v. Cook, 48

M.J. 434, 436 (C.A.A.F. 1998); United States. v.

McElroy, 40 M.J. 368 (C.M.A. 1994).

I see no way of reconciling these conflicting

decisions. Significantly, not one of these cases

explains why the Court was treating a failure to object

as either a waiver or a forfeiture. In these

circumstances, I do not think that any one of these

decisions has much precedential weight. See Bryan A.

Garner et al., The Law of Judicial Precedent 229 (2016

ed.) (explaining that “a court won’t normally accept as

binding precedent a point that was passed by in

silence”); see also Webster v. Fall, 266 U.S. 507, 511

(1925) (holding that “[q]uestions which merely lurk in

the record, neither brought to the attention of the

court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents”).

Accordingly, in deciding this appeal, my view is that

the Court should simply start over and apply the plain

30a

text of R.C.M. 905(e)’s third sentence. Following this

course leads me to conclude that Appellant’s objection

was waived by operation of law. On that basis, I would

affirm the findings and sentence of the court-martial.

III.

Sometimes deciding whether a failure to make an

objection should be treated as a waiver or a forfeiture

may

have

significant

consequences.

These

consequences—rightly or wrongly—may tilt the scales

of judicial interpretation. But this certainly is not one

of those cases. The waiver-versus-forfeiture issue

ultimately does not change the result of this case

because the Court and I agree that Appellant is not

entitled to relief. In addition, the disagreement over

how to interpret the version of R.C.M. 905(e) that

applies to this case will likely have little import in

future cases. As the Court explains, the President

recently amended R.C.M. 905(e) to provide that

failure to raise “other . . . objections” shall “constitute

forfeiture, absent affirmative waiver.” R.C.M.

905(e)(2) (2019 ed.). Whatever the interpretation of

R.C.M. 905(e) (2016 ed.) is in this appeal, future cases

should follow the plain meaning of the new text in

R.C.M. 905(e) (2019 ed.).

In addition, except in a most unusual case,

regardless of whether a court decides that the

accused’s failure to object to a member’s absence

should be treated as a waiver or a forfeiture, the

outcome will be the same. If the objection is waived,

the court cannot consider it. Plain error review is more

31a

permissive, but it still requires the appellant to prove

prejudice. Appellants generally cannot prove

prejudice even if they can show that a court member

was absent without being excused “[b]y the convening

authority for good cause shown on the record,” as

R.C.M. 505(c)(2)(A)(i) requires. To borrow the words of

the Court, guessing how the absent member would

have voted will be, in most instances, nothing more

than “rank speculation.”

Confronted with this reality, Appellant argues that

prejudice should be presumed. Some older precedents

directly support this view. E.g., United States v.

Greenwell, 12 C.M.A. 560, 562, 31 C.M.R. 146, 148

(1961). But more recent precedents have applied plain

error review without presuming prejudice. E.g., Mack,

58 M.J. at 417; Adams, 66 M.J. at 259; Sargent, 47

M.J. at 369. Once more seeing no way to reconcile

these precedents, I would again return to first

principles. As explained above, plain error review

requires an appellant to prove prejudice. Robinson, 77

M.J. at 299. Accordingly, even if an objection to the

composition of a court-martial is merely forfeited, and

not waived, prejudice should not be presumed.

32a

Judge HARDY, concurring.

I concur with the majority’s reasoning and join the

Court’s opinion in full. I write separately to offer an

additional reason why I think the Court properly

treats the word “waived” in the final sentence of the

pre-2019 version of Rule for Courts-Martial (R.C.M.)

905(e) (2016 ed.) as “forfeited,” rather than as

“waived.” 1

Article 36(a) expressly delegates to the President

the authority to prescribe procedural and evidentiary

rules for conducting courts-martial, but that authority

is not unlimited. The President’s rules must, “so far as

he considers practicable, apply the principles of law

and the rules of evidence generally recognized in the

trial of criminal cases in the United States district

courts.” Article 36(a), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 836(a) (2012). 2 In the

federal civilian courts, the general rule is that “[a]

plain error that affects substantial rights may be

1 The first two sentences of the pre-2019 version of R.C.M.

905(e) (2016 ed.) address the waiver of objections, motions, and

requests that must be raised in a pretrial motion. These

sentences parallel Fed. R. Crim. P. 12(c)(3) and are not at issue

in this case.

2 Article 36(a), UCMJ, also imposes a second limitation: the

President’s rules generally may not be “inconsistent with” the

other provisions of the UCMJ. Whether interpreting R.C.M.

905(e) (2016 ed.) as barring appellate review of all issues not

raised at trial is “inconsistent with” the military appellate courts’

statutory authority to determine whether the findings and

sentence set forth in the entry of judgment are correct in law is

a more nuanced and complicated question that need not be

resolved here.

33a

considered even though it was not brought to the

court’s attention.” Fed. R. Crim. P. 52(b). Thus,

civilian federal courts of appeals generally review

errors not timely raised in federal district court for

plain error absent affirmative waiver. See United

States v. Olano, 507 U.S. 725, 731-32 (1993)

(explaining the operation of Fed. R. Crim. P. 52(b)). If

the President intended the final sentence of R.C.M.

905(e) (2016 ed.) to preclude the military appellate

courts from reviewing “[o]ther motions, requests,

defenses, or objections” not raised at trial for plain

error, then that would render R.C.M. 905(e) (2016 ed.)

a significant departure from the “principles of law . . .

generally recognized in the trial of criminal cases in

the United States district courts.” Article 36(a),

UCMJ; see Hormel v. Helvering, 312 U.S. 552, 557

(1941) (“A rigid and undeviating judicially declared

practice under which courts of review would

invariably and under all circumstances decline to

consider all questions which had not previously been

specifically urged would be out of harmony with . . . .

the rules of fundamental justice.”).

Article 36(a), UCMJ, would permit such a

departure if the President considers adherence to

federal practice impracticable. But neither the

President in the Manual for Courts-Martial, United

States (MCM) nor the Government in this case has

offered any explanation why it would be impracticable

for the military appellate courts to review errors that

were not raised by the parties at trial. As the majority

notes, this Court has long interpreted R.C.M 905(e)—

at least in some circumstances—to impose forfeiture

34a

rather than waiver, see United States v. King, __ M.J.

__, __ (7-8) (C.A.A.F. 2023), but the Government has

not argued that those opinions have made appeals in

those types of cases impracticable. Moreover, the

President’s recent amendment to R.C.M. 905(e)—

which replaces “waiver” with “forfeiture, absent an

affirmative waiver”— is strong evidence that the

President considers conformity with federal practice

to be practicable. See R.C.M. 905(e) (2019 ed.); see also

MCM, Analysis of the Rules for Courts Martial app.

15 at A15-14 (2019 ed.) (explaining the recent

amendment).

Interpreting the final sentence of the pre-2019

version of R.C.M 905(e) (2016 ed.) as barring appellate

review of all issues not raised at trial would represent

a significant deviation from practice in the federal

courts. Absent any indication from the President why

the general federal practice would be impracticable in

the military, such an interpretation would potentially

run afoul of Article 36(a), UCMJ; see United States v.

Kohlbek, 78 M.J. 326, 333 (C.A.A.F. 2019)

(interpreting Military Rule of Evidence 707 to conform

with federal practice in part because although “[t]he

presence of a unique military concern could make

following the federal practice . . . impracticable and

justify a divergent rule. . . . no such military concern

is obvious here” (citations omitted)). Because “[a]n

interpretation of a statute or rule that renders it valid

is preferable to an interpretation that would

invalidate the rule,” I agree that we should interpret

the final sentence of R.C.M 905(e) (2016 ed.) as

imposing forfeiture rather than waiver. Kohlbek, 78

35a

M.J. at 332 (citing Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 66

(2012)). I therefore concur that Appellant forfeited the

issue and plain error is the appropriate standard of

review in this case.

36a

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39583

________________________

UNITED STATES

Appellee

v.

Norbert A. KING II

Lieutenant Colonel (O-5), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 16 August 2021

________________________

Military Judge: J. Wesley Moore (arraignment and

motions); Steven J. Grocki (motions); Shaun S.

Speranza.

Approved sentence: Dismissal and confinement for 3

years. Sentence adjudged 1 August 2018 by GCM

convened at Joint Base McGuire-DixLakehurst, New

Jersey, and Trenton Federal Courthouse, New Jersey.

For Appellant: Mark C. Bruegger, Esquire; Tami L.

Mitchell, Esquire; David P. Sheldon, Esquire.

37a

For Appellee: Lieutenant Colonel Joseph J. Kubler,

USAF; Lieutenant Colonel Brian C. Mason, USAF;

Major Jessica L. Delaney, USAF; Mary Ellen Payne,

Esquire.

Before JOHNSON, LEWIS, and CADOTTE, Appellate

Military Judges.

Senior Judge LEWIS delivered the opinion of the

court, in which Chief Judge JOHNSON and Judge

CADOTTE joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4.

________________________

LEWIS, Senior Judge:

A general court-martial composed of officer

members convicted Appellant, contrary to his pleas, of

one specification of sexual assault of his biological

daughter, JK, in violation of Article 120, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 920, and

one specification of committing an act of sexual

penetration upon a blood relative, JK, a non-capital

offense in violation of Title 2C, Chapter 14, Section 2,

Subsection (c)(3)(a) of the New Jersey Code of

Criminal Justice, as assimilated into federal law

38a

under Article 134, UCMJ, 10 U.S.C. § 934. 1 The court

members sentenced Appellant to a dismissal and

three years of confinement. The convening authority

deferred the mandatory forfeitures of pay and

allowances until action. At action, the convening

authority approved the adjudged sentence and waived

the mandatory forfeitures for six months and directed

they be paid to JK. Appellant had requested the

forfeitures be paid to his spouse, SK, for her benefit

and the benefit of his other three minor children.

Appellant raised 14 issues through counsel, which

we have reworded and reordered: (1) whether the

record of trial is incomplete as two court rulings are

missing; (2) whether the military judge erroneously

denied an unreasonable multiplication of charges

motion; 2 (3) whether a reservist military judge erred

by not recusing himself because of his civilian

employment with the United States Department of

Justice; (4) whether the court-martial was improperly

constituted; (5) whether the evidence is legally and

factually insufficient; (6) whether the military judge

erred in admitting prior consistent statements of JK;

(7) whether trial defense counsel provided ineffective

assistance of counsel on multiple grounds; (8) whether

1 All references in this opinion to the UCMJ, Rules for Courts-

Martial (R.C.M), and Military Rules of Evidence are found in the

Manual for Courts-Martial, United States (2016 ed.).

2 This is one of the missing rulings from the first assignment of

error.

39a

the military judge erred in allowing JK to reference

improper victim impact evidence in her Rule for

Courts-Martial (R.C.M.) 1001A unsworn statement;

(9)

whether

the

mandatory

dismissal

is

unconstitutional; (10) whether the Government’s

unauthorized enrollment of Appellant’s family and

friends in the Victim Witness Assistance Program

(VWAP) represents cruel and unusual punishment or

warrants sentence appropriateness relief; (11)

whether the convening authority improperly directed

that the waived mandatory forfeitures be paid to JK

rather than to Appellant’s wife, SK, and their three

minor children; (12) whether the Government’s

prohibition against Appellant having contact with his

minor children during posttrial confinement violated

his constitutional rights and warrants sentence relief;

(13) whether the Government’s refusal to provide

Appellant with his prescribed medications during

post-trial confinement represents cruel and unusual

punishment or warrants sentence relief; and (14)

whether the cumulative effect of the errors

substantially impaired the fairness of Appellant’s

trial.

Appellant personally raises three issues pursuant

to United States v. Grostefon, 12 M.J. 431 (C.M.A.

1982): (15) whether his sentence is inappropriately

severe; (16) whether the military judge erred in

denying two illegal pretrial punishment motions; and

(17) whether additional sentence relief is warranted

40a

due to Appellant’s transfer from the Naval

Consolidated Brig in Miramar, California, to the

Naval Consolidated Brig in Charleston, South

Carolina, which effectively precluded Appellant from

visiting with his family and continuing his

rehabilitation.

We also consider facially unreasonable appellate

delay as this opinion was released more than 18

months after docketing.

We combine assignments of error (1) and (2) as one

of the two missing rulings involves an unreasonable

multiplication of charges motion that Appellant

asserts was erroneously denied, if it was decided. On

this combined issue, we conclude the record of trial

contains a substantial omission because it is missing

the military judge’s ruling on whether there was an

unreasonable multiplication of charges for findings.

As the Government has failed to rebut the

presumption of prejudice from this substantial

omission, we remedy this error by setting aside the

findings of guilt to the Article 134, UCMJ, offense,

Charge II and its Specification, and dismissing them

with prejudice. We also reassess the sentence later in

the opinion.

Regarding assignment of error (9), we find the

mandatory dismissal is constitutional for the reasons

we announced in United States v. Rita, 80 M.J. 559,

41a

561–62 (A.F. Ct. Crim. App 17 Jul. 2020), rev. denied,

80 M.J. 363 (C.A.A.F. 2020).

We combine assignments of error (10), (12), and

(13) as each involves posttrial confinement conditions.

After considering issues (15), (16), and (17) as

raised personally by Appellant, we find they warrant

no further discussion or relief. See United States v.

Matias, 25 M.J. 356, 361 (C.M.A. 1987).

Regarding assignment of error (14), we considered

whether the principle of cumulative error warrants

reversal of Appellant’s approved sentence. See United

States v. Gray, 51 M.J. 1, 61 (C.A.A.F. 1999)

(explaining the implied premise of the cumulative

error doctrine is that errors, in combination,

necessitate disapproval of a finding or sentence and

that assertions of error without merit are not

sufficient to invoke the doctrine). While we find error

in three areas—missing rulings, showing good cause

on the record for a court member excusal, and

erroneous enrollment of defense witnesses in the

VWAP program—we do not find sentence relief is

warranted even when these errors are considered

cumulatively. Therefore we affirm the remaining

findings to Charge I and its Specification, and the

sentence, as reassessed.

42a

I. BACKGROUND

JK was 17 years old and living at home at the time

of the events that led to Appellant’s court-martial. On

the evening of 10 September 2016, Appellant and JK

were watching movies in the living room of

Appellant’s house on Joint Base McGuire-DixLakehurst (JBMDL), New Jersey. The rest of the

family was upstairs, either sleeping or trying to sleep.

This included Appellant’s wife SK (JK’s stepmother)

and the three biological minor children of Appellant

and SK (JK’s younger half-brothers and half-sister).

While watching the movies, JK requested

Appellant massage her calf muscle as it was tight and

causing her pain. Appellant agreed and proceeded to

massage her calf, then moved to massage JK’s upper

thigh. Appellant generally agreed that these events

occurred.

According to JK, the massage became invasive

when Appellant wanted to massage the area where

her muscle connected to her pelvic bone. Appellant

asked “if this was okay” and JK agreed it was.

Appellant then reached beneath JK’s underwear line

and rubbed her vaginal area rather than her pelvic

bone. Appellant did not digitally penetrate JK’s

vagina. Soon after, Appellant took off JK’s “pants” 3

3 JK

later explained in her testimony that she was wearing

shorts during the massage and that Appellant removed them. JK

43a

and underwear. According to JK, Appellant used his

mouth and tongue to “orally stimulate [her] vaginal

region” and he “partially” penetrated her vagina with

his mouth. 4 JK felt that this lasted for around 30

seconds before she pushed Appellant off her and put

her “underwear and pants” back on. Appellant asked

JK whether he “should go tell mommy?” JK did not

respond. As JK did not want Appellant to touch her

again, she went upstairs to her bedroom, leaving her

cell phone behind. Once upstairs, JK used her

computer to message her best friend ND nine times in

a two-minute span. At trial, photographs of ND’s cell

phone show these messages were between 0047 and

0049 hours. The messages showed that JK was

leaving for ND’s house—also on JBMDL—because she

needed help. Having sent the nine messages to ND,

JK departed her house on foot. Once outside, JK

thought she saw Appellant on one of the sidewalks so

she used a trail that went through the woods to avoid

him.

Despite JK’s messages, ND was still asleep when

JK arrived. JK started knocking on the back door to

try and wake up ND as her bedroom was on the first

clarified that she used the word “pants” to describe jeans and

shorts.

4 Both charged offenses involved penetration of JK’s vulva with

Appellant’s mouth. Appellant was not charged with an offense

for touching the outside of JK’s vagina.

44a

floor. ND’s parents were still awake upstairs and upon

hearing the knocking, one of them called 911 to report

a possible break-in. JBMDL security forces responded

and found a visibly distraught JK at ND’s back door.

JK was brought inside the house and comforted by ND

and ND’s mother while security forces personnel

attempted to determine why JK had run away from

her house in the middle of the night. At first, JK was

uncomfortable disclosing what happened to her so she

spoke in hypotheticals. One of the hypotheticals was

about a daughter and her father where a massage led

to sexual advances by the father. As JK grew more

comfortable, she disclosed her name to the security

forces personnel and clarified that Appellant was the

father in the hypothetical and she was the daughter.

JK’s disclosure required notification of the on-call

special agent (SA) from the Air Force Office of Special

Investigations (AFOSI). AFOSI agents responded to

ND’s house and transported JK to the detachment,

located on JBMDL. The agents conducted a videorecorded interview of JK beginning at about 0500

hours. Portions of the audio of this interview were

admitted as rebuttal evidence as prior consistent

statements of JK.

After JK’s interview with AFOSI, she agreed to go

to the hospital and undergo a sexual assault forensic

examination (SAFE). JK had urinated, but not

showered, prior to the SAFE. The sexual assault nurse

examiner (SANE) wrote down a narrative from JK in

45a

the SAFE report which was also admitted into

evidence. The narrative is largely consistent with JK’s

AFOSI interview and testimony. The SANE collected

the underwear JK wore before and after the assault

and obtained external genital swabs and buccal swabs

from JK for later DNA testing.

At about 0900 hours on 11 September 2016,

Appellant was interviewed by AFOSI agents after

being advised that he was suspected of violating

Article 120b, UCMJ, for “sexual assault of a child.” 5

Appellant waived his rights under Article 31, UCMJ,

10 U.S.C. § 831, and agreed to answer questions.

Appellant’s interview was video-recorded and large

portions of it were admitted into evidence as a

prosecution exhibit.

After Appellant and the agents discussed some

preliminary matters, Appellant described watching

movies with JK as follows:

Went downstairs. I got her[ 6 ] a drink.

Mommy came down. We started a movie,

Bad Boys. Then mommy went to bed. We

watched Bad Boys—[JK] and I watched

5 As JK had attained the age of 16 years old, she was not a “child”

as defined by 10 U.S.C. § 920b(h)(4).

6 Appellant did not explain whether the “her” was JK or SK. It

was not disputed that Appellant gave JK white wine to drink

during the evening. The amount of wine JK consumed was

contested.

46a

Bad Boys. And then—so this is that—

okay, and then we started the second

movie. About halfway through the movie

she said she’s going upstairs, she’ll be

right back. Went upstairs. She’s in the

bathroom. She didn’t come back down.

Appellant then described seeing a “creepy guy”

outside his house and that he “took a quick drive

around the block” and followed the creepy guy, then

went back home and went upstairs where he thought

JK “was in the bathroom still” and he went to bed.

Appellant omitted any mention of a massage of JK

in his initial narrative to AFOSI. In response, the

agents disclosed to Appellant that JK had been

interviewed and one of the agents, SA JB, asked

Appellant more direct questions:

[SA JB]: Did you massage her legs at all

yesterday?

[Appellant]: Yeah. Yeah.

[SA JB]: When did that happen?

[Appellant]: Ah, during the week, she

usually -- she’d throw her leg up on top

of me, ask me to massage her legs. So I

massage her calf. She said her quads

were hurting. Told her to go get the

47a

[foam roller].[ 7] Where it was and then

just showed her how to do that. Well,

that’s not the first time. I’ve showed her

how to do that several times.

Eventually, Appellant admitted that he massaged

JK’s leg while watching one of the movies, but he

denied taking off her pants. He also offered a few

theories on why JK was making false claims against

him. Most prominent was Appellant’s theory that JK’s

biological mother was behind it. Appellant told the

agents that he had full custody of JK and there was a

restraining order against JK’s biological mother

because “she does things like this quite frequently.” 8

The agents responded by telling Appellant that JK

had told them “a little bit about her back story” with

JK’s biological mother and her stepfather and how JK

came to live with Appellant. 9

7 The record indicates in a parenthetical that Appellant

“gestured with his right hand a rolling motion under his right

thigh.”

8 At this point in the interview, Appellant did not explain what

he meant. Later in the interview, Appellant mentioned a claim

by JK’s biological mother that he “threw her down and started

beating her.” Appellant denied wrongdoing but asserted that JK

knew about the complaint her biological mother had made and

the result was a police report for which he “had to go to court.”

9 There was limited testimony before the court members which

explained the “back story” of JK, her biological mother, and an

incident with JK’s stepfather. During JK’s cross-examination,

48a

The agents questioned Appellant further about the

massage:

[SA JB]: Okay. So [what’s] being told to

us is basically, after you massaged her

leg, you took her pants off and you

performed oral sex on her. And then she

pushed you away. And when you tried to

---[Appellant]: So, no. So when -- whenever

I massage her leg I ask her, are you

okay? Is this fine? [Because] we ran into

a situation before, [JK] told a friend that

I touched her inappropriately. I’m like,

oh, my gosh, [JK, your] history,[ 10] you

can’t do that. It’s -then I’m not going to

massage you anymore. When I told her I

wasn’t going to touch her, and then she

JK was asked by Appellant’s civilian defense counsel, “But you

knew that you had made a prior allegation against your

stepfather that resulted in, [an] investigation, prosecution and

guilty plea, right?” JK answered “correct.” ND’s mother also

testified one of the hypotheticals JK used was “that there was

this young girl was with her mom” and “her mom’s boyfriend

inappropriately touched her and then she moved in with her

dad.” Appellant’s father testified that JK was about nine years

old when she began living with Appellant. Additional details

regarding the incident with JK and her stepfather remain sealed

in the record of trial.

10 Appellant appears to be referencing the incident with JK and

her stepfather.

49a

got all weird about it. And I said, no, no

more massaging. Nothing. You don’t

touch me. I don’t touch you. That went

on for a good -- I want to say six, seven

months. And then she started asking me

again, and then…

[SA JB]: Yeah, she said that you asked

her if it was okay when you were

massaging her leg. And she said yeah,

that’s fine. And she said when you went

to take her pants off, she kind of zoned

out. And you know, she---[Appellant]: Well that didn’t happen.

Well, that’s not…

[SA JB]: She said you performed oral sex

on her for about 30 seconds or so. She---[Appellant]: I’m trying to think what

movie we watched. So the Bad Boys. And

then we were watching Bad Boys II.

[SA JB]: She said she pushed you away.

And then you said, “Should I tell

mommy,” and then she got freaked out

and ran upstairs, and left her phone

down there.

[Appellant]: So [SK] found the phone on

the couch. So if that makes sense. But

none of that stuff happened.

50a

Later in the interview, SA JB asked Appellant

about the earlier time JK told a friend that Appellant

touched her inappropriately. Appellant denied

knowing the specifics of what JK told her friend but

agreed that allegation was “the whole massage thing

again” and it was “along the lines of I touched her

inappropriately.” The questioning continued:

[SA JB]: Okay. And why did you

continue to massage her after this had

happened?

[Appellant]: I totally stopped it, like and

I told her that [because] she always

asked me [to] massage her calves . . . I

should have just not ever massage[d]

her again, obviously. But just something

my mom -- we used to do the same thing

for me whenever my calves hurt, or my

back, or my legs. She used to do the

same thing. She’s a nurse. I did it for my

mom. I know [SK] thinks it weird. Like,

we massaged each other, but...

[SA JB]: [SK] thinks what’s weird?

[Appellant]: That [JK] massages my

back and then I massage, like, her back.

And she’s like this -- [is] weird, I’m no,

my mom does it to me all the time.

By the end of the interview, Appellant posited

several additional theories for why JK was making a

51a

false claim against him. The additional theories

included: (1) JK was not allowed to go to prom; (2)

Appellant yelled at JK for her driving earlier in the

day; (3) Appellant did not allow her to have a

boyfriend; (4) Appellant checked JK’s messages with

a boy, CH; and (5) Appellant’s opinion that JK might

have several mental health conditions. Appellant

conceded that his massages of JK now seemed

“creepy” to him, but he did not think about this at the

time because it was his daughter and it was for

“medicinal purposes.” He then stated that JK was

smart, that this was not the first time Appellant

massaged her and that is why SK is “always saying

it’s weird” and he “just never thought of it like that,

like the sexual aspect of it.” Appellant agreed to

provide a DNA sample at the end of the interview.

Appellant did not undergo a SAFE.

While Appellant was being interviewed, AFOSI

agents searched the house with SK’s consent and

photographed the downstairs living room and a bottle

of white wine in the kitchen. JK returned during this

search and showed the agents the computer she used

to send messages to her friend ND. The agents did not

collect any biological evidence from the house.

Later forensic testing by the United States Army

Criminal Investigation Laboratory (USACIL) found

no male DNA on the external genital swabs from JK’s

SAFE. At trial, the USACIL DNA examiner testified

that she received eight external genital swabs, rather

52a

than the normal two, and the collection of eight swabs

could have diluted any DNA that was present. The

DNA examiner also explained that it could have been

that “no male DNA [was present] to begin with.” The

DNA examiner also testified that she received a swab

from Appellant’s “outer mouth area” and “there was

nothing foreign to him on that sample.”

The forensic testing results of JK’s underwear

showed that male DNA was found on the “inside

crotch area and inside front panel.” Y-chromosome

short tandem repeat (Y-STR) testing of the “inside

front panel” of JK’s underwear was “inconclusive due

to degraded and/or insufficient amount of male DNA

present in the sample.” Regarding the “inside crotch

area” of JK’s underwear, Appellant and his paternal

male relatives could not be excluded from the Y-STR

testing results. 11

11 USACIL generated Y-STR statistics based on the “probability

of randomly selecting a male individual with this profile from the

same population group as [Appellant], given that it has already

been observed.” The Defense’s forensic DNA expert testified at

trial that the closest calculation for a population group for

Appellant was 1 in 1,335 individuals, “a relatively low match

statistic, meaning that many individuals in the random

population could have that same profile and also all male

relatives” of Appellant.

53a

II. DISCUSSION

A. Incomplete Record and Unreasonable

Multiplication of Charges

1. Additional Background

Appellant asserts the record of trial is incomplete

because it is missing two military judge rulings on

defense motions, one of which alleged an

unreasonable multiplication of charges (UMC) for

findings. Appellant argues that we must set aside the

findings and sentence because we cannot fulfill our

statutory obligation to review the findings and

sentence without the missing rulings. We agree with

Appellant but only for the missing UMC ruling.

Regarding the missing UMC ruling, Appellant

alternatively argues that assuming arguendo that the

military judge denied the motion for purposes of

findings, that decision was erroneous. Appellant

argues his conduct was “united in time, circumstance,

and impulse” as to constitute one offense for findings.

See, e.g., United States v. Hernandez, 78 M.J. 643

(C.G. Ct. Crim. App. 2018); United States v. Clarke, 74

M.J. 627 (A. Ct. Crim. App. 2015). Both of the cases

Appellant cites involved separately charged assaults

under Article 128, UCMJ, 10 U.S.C. § 928. Given our

resolution of the incomplete record issue due to the

missing UMC ruling, we find this alternative

argument moot.

54a

a. Motion to Dismiss for Unreasonable

Multiplication of Charges

The first missing ruling involved a defense motion

to dismiss for UMC. The written motion and the

Government’s response are appellate exhibits in the

record of trial. The first military judge who presided

over Appellant’s court-martial—Judge Moore—heard

arguments from the parties on this motion. Those

arguments are transcribed in the record of trial.

Before recessing the court-martial, Judge Moore

stated his intent to issue written rulings on the

motions that were argued. Judge Moore did not

reserve an appellate exhibit for his UMC ruling.

At the next session of Appellant’s court-martial,

about two months later, the second military judge,

Judge Grocki, presided. A number of rulings by Judge

Moore were marked as appellate exhibits, but the

UMC motion ruling was not among them. Judge

Grocki discussed a few pending motions but did not

specifically identify the UMC motion. However, at a

later point, the Defense referenced the UMC motion

and how Judge Moore ruled on it. Specifically, the

Defense told Judge Grocki about the motion for an

“unreasonable multiplication of similar charges” and

that the Defense “filed a motion on that previously.

We were denied. So I’m not going to relitigate that

issue.” Appellant does not allege that Judge Moore

failed to rule on the UMC motion entirely, just that

“no such ruling can be found in the record.”

55a

The third military judge, Judge Speranza—who

presided over findings and sentencing—decided sua

sponte to merge both charges and specifications for

purposes of sentencing once findings were announced

and Appellant was convicted of both offenses. Judge

Moore’s earlier UMC ruling was not mentioned.

b. Motion for Appropriate Relief – Illegal

Pretrial Punishment

The second missing ruling was on a Defense

motion for appropriate relief for illegal pretrial

punishment under Article 13, UCMJ, 10 U.S.C. §

813. 12 This motion addressed restrictions that were

placed on Appellant during the investigation and trial

that limited when he could access his house and have

contact with his three minor children. Judge Grocki

received evidence and heard argument on this motion.

The motion, response, and transcribed argument on

the motion are all contained in the record of trial.

Judge Grocki did not rule on the record and did not

reserve an appellate exhibit for a written ruling.

At the next session of court, three months later,

Judge Speranza presided. He summarized an R.C.M.

802 conference he held with the parties and stated

The Defense filed two motions addressing illegal pretrial

punishment. The first motion filed on this issue was ruled upon

and that ruling is contained in the record of trial. This

assignment of error relates only to the second illegal pretrial

punishment motion.

12

56a

there were no outstanding rulings. At this session,

several rulings made by Judge Grocki were marked as

appellate exhibits, but this illegal pretrial

punishment ruling was not one of them.

After Appellant was convicted, Judge Speranza

inquired whether Appellant was subjected to illegal

pretrial punishment. The Defense responded that

“[t]he issue was already previously raised.” Judge

Speranza asked if it was resolved and whether there

was a ruling and the Defense responded, “There was

a ruling, yes sir.” The trial counsel agreed. Judge

Speranza then noted, “It is one of the rulings I know

that we marked in our initial session, I believe.” Judge

Speranza was incorrect as this illegal pretrial

punishment ruling was never marked as an appellate

exhibit. Therefore it was not attached to the record of

trial.

On appeal, the Government filed a motion to

attach an affidavit from the assistant trial counsel

and a five-page ruling dated 30 April 2018 from Judge

Grocki on this illegal pretrial punishment motion. The

ruling does not bear a signature, digital or wet, but

does contain Judge Grocki’s signature block with “//s//”

above it. Other written rulings by Judge Grocki in the

record of trial contain an identical “//s//” above his

signature block. The assistant trial counsel declared

that the five-page ruling is a true and accurate copy of

the ruling provided to the parties, to the best of his

recollection. We granted the motion to attach over

57a

Appellant’s objection. 13 In his reply brief, Appellant

argues that we should have required the Government

to utilize R.C.M. 1112(d)(2) to correct the record of

trial, and the Defense should have been allowed to

review this ruling under that rule.

2. Law

A complete record of the proceedings, including all

exhibits, must be prepared for any general courtmartial that results in death, dismissal, a discharge,

or (if the sentence adjudged does not include a

discharge) any other punishment which exceeds that

which may otherwise be adjudged by a special courtmartial. Article 54(c)(1)(A), UCMJ, 10 U.S.C. §

854(c)(1)(A); R.C.M. 1103(b)(2)(D)(v). Whether a

record of trial is complete is a question of law we

review de novo. United States v. Davenport, 73 M.J.

373, 376 (C.A.A.F. 2014) (citation omitted).

“[A] substantial omission renders a record of trial

incomplete and raises a presumption of prejudice that

the government must rebut.” United States v. Harrow,

62 M.J. 649, 654 (A.F. Ct. Crim. App. 2006) (citation

omitted), aff’d, 65 M.J. 190 (C.A.A.F. 2007). However,

“[i]nsubstantial omissions from a record of trial do not

raise a presumption of prejudice or affect that record’s

13 We understand that we are permitted to consider

declarations from outside the record of trial when necessary to

resolve issues raised by materials in the record of trial. See

United States v. Jessie, 79 M.J. 437, 442–44 (C.A.A.F. 2020).

58a

characterization as a complete one.” United States v.

Henry, 53 M.J. 108, 111 (C.A.A.F. 2000) (holding that

four missing prosecution exhibits were insubstantial

omissions when other exhibits of similar sexually

explicit material were included). We must approach

the question of what constitutes a substantial

omission on a case-by-case basis. United States v.

Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999) (citation

omitted).

Article 54, UCMJ, and R.C.M. 1103 do “not limit

the court of criminal appeals’ [ ] discretion to remedy

an error in compiling a complete record.” United

States v. Gaskins, 72 M.J. 225, 230 (C.A.A.F 2013).

Only in the cases where “a verbatim transcript cannot

be prepared” are the remedial options “limited and

definitively circumscribed.” Davenport, 73 M.J. at 378.

3. Analysis

The Government argues both missing rulings are

insubstantial omissions as they did not have an

impact on the sufficiency of the Government’s

evidence on the merits. 14 We disagree. In our view, the

14 The Government favorably cites United States v. Bennett, No.

ARMY 20121072, 2016 CCA LEXIS 418, at *34 (A. Ct. Crim.

App. 30 Jun. 2016), aff’d, 76 M.J. 337 (C.A.A.F. 2017), and

United States v. Singletery, No. ARMY 20140686, 2016 CCA

LEXIS 390, at *7 (A. Ct. Crim. App. 16 Jun. 2016). While both

cases involved missing rulings of a military judge, we find both

cases distinguishable and therefore unpersuasive.

59a

correct approach is to determine whether the missing

rulings affected “an appellant’s rights at trial.” United

States v. Hill, No. ACM 38648, 2015 CCA LEXIS 308,

at *10 (A.F. Ct. Crim. App. 29 Jul. 2015) (unpub. op.)

(citing Abrams, 50 M.J. at 364; United States v. Gray,

7 M.J. 296, 298 (C.M.A. 1979)).

We evaluated the omission of each of the missing

rulings and conclude that each one affected

Appellant’s rights at trial. Specifically, the UMC

motion implicated “those features of military law that

increase the potential for overreaching in the exercise

of prosecutorial discretion” and “dismissal of . . .

charges is a remedy available” to the military judge to

address UMC for findings. See United States v.

Campbell, 71 M.J. 19, 22–23 (C.A.A.F. 2012) (quoting

United States v. Roderick, 62 M.J. 425, 433 (C.A.A.F.

2006); United States v. Quiroz, 55 M.J. 334, 337

(C.A.A.F. 2001)). Additionally, R.C.M. 307(c)(4)

instructs “[w]hat is substantially one transaction

should not be made the basis for an unreasonable

multiplication of charges against one person” and

R.C.M. 906(b)(12)(i) addresses that the appropriate

remedy “shall be dismissal of the lesser offense or

merger of the offenses into one specification” if the

military judge, in his or her discretion, finds UMC for

findings. We conclude that once the issue of UMC for

findings was properly raised by written motion, the

military judge’s decision on that issue, while

discretionary, affected Appellant’s rights at trial and

60a

ultimately allowed the court members to convict

Appellant of both offenses. Turning to the denial of the

illegal pretrial punishment motion, we conclude it also

affected Appellant’s rights at trial because the issue

was properly raised by written motion and the

military judge’s decision resulted in Appellant

receiving no credit against his adjudged confinement

sentence of three years. As each ruling affected

Appellant’s rights at trial, we conclude that each

missing ruling is a substantial omission. Therefore, a

presumption of prejudice exists which the

Government bears the burden of rebutting.

The Government identifies three points when

Appellant could have been prejudiced by a missing

ruling: (1) at trial, if the Defense had requested

reconsideration on the military judge’s ruling; (2)

during clemency; and (3) on appeal. Applying the

Government’s first point to this case, we note that

both missing rulings were issued prior to trial on the

merits, the Defense either received or had access to

the rulings for use during trial, and the Defense never

requested reconsideration during trial. Therefore, we

will focus our prejudice analysis on the clemency

process and appeal. See United States v. Underhill,

NMCCA 200700144, 2007 CCA LEXIS 306, at *8–9

(N.M. Ct. Crim. App. 9 Aug. 2007) (unpub. op.)

(observing the convening authority’s action and

appellate review are the two primary points in the

61a

post-trial process where prejudice could result from a

record of trial with substantial omissions).

a. Unreasonable Multiplication of

Charges

In his clemency submission, Appellant did not

specifically allege legal error 15 by Judge Moore’s

apparent denial of the UMC ruling and did not

mention the ruling was omitted from the record.

Therefore, the staff judge advocate and convening

authority were not called upon to review the specifics

of the ruling and were not alerted that it was missing

from the record. Additionally, the convening authority

could not have modified the findings in this case under

the applicable version of Article 60(c)(3), UCMJ, 10

U.S.C. § 860(c)(3), even if the merits of the UMC

motion were raised. Under these circumstances, we

conclude the Government has rebutted the

presumption of prejudice as it applies to clemency for

the missing UMC ruling.

On appeal, we reach a different conclusion and find

the Government failed to rebut the presumption of

Appellant’s military defense counsel asked the convening

authority to “consider any and all objections and motions” made.

We find this broad statement insufficient to raise a specific claim

of legal error in the UMC ruling or that the record was

incomplete. See R.C.M. 1107(b)(1) (“The convening authority is

not required to review the case for legal errors or factual

sufficiency.”).

15

62a

prejudice. The Government has not moved to attach

the missing UMC ruling and instead asks our court to

conduct a de novo review of the legal issue. We decline

the Government’s request. We note that there is a

question of fact raised by the UMC motion, and the

Government has not shown how this factual dispute

was resolved by Judge Moore. As we explain below,

this is insufficient for the Government to rebut the

presumption of prejudice.

The Defense’s UMC motion listed three

paragraphs of facts, including that the Government

had, at the Article 32 preliminary hearing, stated that

the specifications were charged “in the alternative”

and “based on exigencies of proof.” The Government’s

written response to the UMC motion was that it was

“without knowledge” of the Defense’s assertion that

the specifications were charged in the alternative. We

note that the Article 32 preliminary hearing officer’s

report specifically states, “Both allegations were

charged in the alternative based on exigencies of

proof, which the government confirmed during the

hearing.”

If the record contained Judge Moore’s ruling, we

would know whether and how this factual dispute was

resolved, relevant to deciding if there is evidence of

prosecutorial overreaching. See Quiroz, 55 M.J. at

338. The Government has not attempted to

demonstrate that it changed its mind regarding

exigencies of proof between the Article 32 preliminary

63a

hearing and the trial. Nor has it provided us any

explanation of its motion response denying knowledge

of a specific matter that was documented in the Article

32 report by the preliminary hearing officer. These are

the type of questions that the Government must

endeavor to answer to rebut a presumption of

prejudice on appeal when it fails to produce a complete

record of trial. We recognize our fact-finding authority

under Article 66, UCMJ, 10 U.S.C. § 866, but decline

to use it in this situation as the Government bears the

burden of rebutting prejudice. We also note the

Government has not requested we order a post-trial

hearing under United States v. DuBay, 37 C.M.R. 411

(C.M.A. 1967). Nor has it requested that we remand

the case so a certificate of correction can be obtained.

Presumably, if the Government had located a copy of

Judge Moore’s missing ruling, it would have filed a

motion to attach along with a suitable declaration,

just as it did with the other missing ruling in this case.

We acknowledge that Appellant has been able to

raise an assignment of error that the denial of the

UMC motion was erroneous. This provides some

support to the Government’s argument that the

presumption of prejudice has been rebutted. However,

that assignment of error does not address the factual

issue described above regarding exigencies of proof.

We see this as an important matter to our review

under Article 66, UCMJ. See Quiroz, 55 M.J. at 339

(describing Article 66(c), UCMJ, powers applicable to

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UMC as a determination of law under a classic legal

test—whether the action under review was

“reasonable” or “unreasonable”). Additionally, the

assignment of error and answer do not reveal

knowledge of the breadth or depth of Judge Moore’s

ruling, matters we see as important to whether the

Government can rebut the presumption of prejudice.

Under these circumstances, we find the Government

has not rebutted the presumption of prejudice on

appeal for the missing UMC ruling. We remedy this

error by setting aside Charge II and its Specification

and dismissing Charge II and its Specification with

prejudice. We will conduct a sentence reassessment

after addressing the remainder of the assignments of

error.

Given our resolution of the above issue, we find

Appellant’s alternative argument—that his conduct

was “united in time, circumstance, and impulse” as to

constitute one offense and an unreasonable

multiplication of charges for findings—to be moot.

b. Illegal Pretrial Punishment Motion

We conclude the Government has rebutted the

presumption of prejudice during clemency and on

appeal for the missing ruling on this illegal pretrial

punishment motion.

In his clemency submission, Appellant did not

specifically allege legal error in Judge Grocki’s ruling

or note its omission from the record of trial. Therefore,

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the staff judge advocate and convening authority were

not called upon to review the specifics of the ruling or

its omission during the clemency process. Under these

circumstances, we conclude the Government has

rebutted the presumption of prejudice as it applies to

clemency.

The Government has also rebutted the

presumption of prejudice on appeal. We granted the

Government’s motion to attach Judge Grocki’s ruling

and the declaration of the assistant trial counsel. We

understand this to mean that we can consider the

written ruling in deciding whether the Government

has rebutted the presumption of prejudice on appeal.

To be clear, we are not holding that the record of trial

is now complete with Judge Grocki’s ruling added as

an appellate exhibit. If the Government sought to

make the record of trial complete, it should have

requested our court order a certificate of correction.

We considered doing so on our own, but decline to do

as we can resolve the presumption of prejudice issue

without a certificate of correction. After reviewing the

written ruling of Judge Grocki, we see no reason to

question its authenticity or accuracy. We are satisfied

that there are no impediments to our performance of

our Article 66, UCMJ, responsibilities 16 or Appellant’s

16 We

also considered the assistant trial counsel’s declaration

and Judge Grocki’s ruling before we resolved issue (16) without

further discussion or relief earlier in our opinion.

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ability to challenge this ruling regarding illegal

pretrial punishment. The Government has rebutted

the presumption of prejudice for this substantial

omission from the record of trial.

B. Military Judge Recusal

1. Additional Background

Appellant argues that Judge Grocki, an Air Force

reservist, erred by refusing to recuse himself when, at

the time of Appellant’s trial, he was employed in his

civilian capacity by the United States Department of

Justice (DoJ) as a prosecutor for sex crimes against

children. Appellant preserved this issue at trial.

Judge Grocki presided over some of the motions

sessions and voir dire of the initial group of court

members. He assembled the court with five members

before granting a defense continuance motion. When

court resumed months later, Judge Speranza presided

over the remainder of the trial including the seating

of replacement court members, findings, and

sentencing proceedings.

Judge Grocki permitted the Defense an extensive

opportunity to voir dire him regarding his civilian

employment, his military justice career and

experience, and various professional presentations he

had given. The record is well developed that at the

time of the recusal motion Judge Grocki’s civilian

employment was as supervisor of the Child

Exploitation and Obscenity Section for the Criminal

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Division of the DoJ. Judge Grocki had been employed

by the DoJ for 13 years and in several positions within

this section. The record also contains Judge Grocki’s

military justice background as an active duty judge

advocate and reserve judge advocate, including

military justice assignments as an area defense

counsel, circuit trial counsel, appellate government

counsel, and military judge. Several appellate exhibits

show presentations that Judge Grocki made in his

civilian capacity at various professional forums

including his involvement in the We Protect Global

Alliance, an international organization focused on

preventing child sexual abuse, child pornography,

prostitution, and human trafficking. The record also

contains a presentation that Judge Grocki made

before the Judicial Proceedings Panel 17 comparing the

military justice system to the federal judicial system.

The Defense moved for Judge Grocki to recuse

himself arguing that a reasonable member of the

public would question his impartiality given his

civilian employment. Judge Grocki denied the motion.

In ruling, Judge Grocki highlighted (1) the extensive

voir dire he allowed which he estimated lasted

between an hour and a half to two hours; (2) that he

17 See e.g., National Defense Authorization Act for Fiscal Year

2013, Pub. L. No. 112239, § 576(a)(2) (2 Jan. 2013) (requiring the

Secretary of Defense to establish a panel to conduct an

independent review and assessment of judicial proceedings of

adult sexual assault and related offenses).

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had no personal knowledge or involvement with

Appellant’s case; (3) that in his civilian job he had not

prosecuted a case since the spring of 2009 and that his

responsibilities were “personnel,” “policy and

legislation far more . . . than litigation;” (4) his prior

active duty assignment as an area defense counsel; (5)

his ethical obligations under his state bar license

when performing his judicial role as a reservist; and

(6) his DoJ role in closing cases and dismissing

charges were conducted to ensure the fair

administration of justice. In explaining his reservist

military judge role, Judge Grocki noted that his

responsibilities are “very different and distinct” from

his civilian role at the DoJ; he characterized this as “a

bright line distinction.” Judge Grocki noted that he

had presided over cases involving child pornography

and had never found his civilian position in the DoJ or

his work history to require recusal. Judge Grocki cited

R.C.M. 902(a) and applicable caselaw in denying the

recusal motion.

2. Law

We review a military judge’s decision not to recuse

himself for an abuse of discretion. United States v.

Sullivan, 74 M.J. 448, 454 (C.A.A.F. 2015). “A military

judge’s ruling constitutes an abuse of discretion if it is

‘arbitrary, fanciful, clearly unreasonable or clearly

erroneous.’” Id. at 453 (quoting United States v.

Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)). “The abuse

of discretion standard is a strict one, calling for more

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than a mere difference of opinion.” United States v.

McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (citing

United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997);

United States v. Travers, 25 M.J. 61, 62 (C.M.A.

1987)).

“[T]he validity of the military justice system and

the integrity of the courtmartial process ‘depend[ ] on

the impartiality of military judges in fact and in

appearance.’” United States v. Uribe, 80 M.J. 442, 446

(C.A.A.F. 2021) (alteration in original) (quoting Hasan

v. Gross, 71 M.J. 416, 419 (C.A.A.F. 2012) (per

curiam)). “In the military context, the appearance of

bias principle is derived from R.C.M. 902(a).” Id.

(citation omitted). R.C.M. 902(a) states: “a military

judge shall disqualify himself or herself in any

proceeding in which that military judge’s impartiality

might reasonably be questioned.” Disqualification

pursuant to R.C.M. 902(a) is determined by applying

an objective standard of “whether a reasonable person

knowing all the circumstances would conclude that

the military judge’s impartiality might reasonably be

questioned.” Sullivan, 74 M.J. at 453 (citation

omitted). “The appearance standard is designed to

enhance public confidence in the integrity of the

judicial system.” United States v. Quintanilla, 56 M.J.

37, 45 (C.A.A.F. 2001) (citation omitted). “Although a

military judge is to ‘broadly construe’ the grounds for

challenge, he should not leave the case

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‘unnecessarily.’” Sullivan, 74 M.J. at 454 (quoting

R.C.M. 902(d)(1), Discussion).

“[N]ot every judicial disqualification error requires

reversal . . . .” United States v. McIlwain, 66 M.J. 312,

315 (C.A.A.F. 2008) (citation omitted). Appellate

courts consider three factors to determine whether a

disqualification error warrants a remedy: “(1) the risk

of injustice to the parties[;] (2) the risk that denial of

relief will produce injustice in other cases[;] and (3)

the risk of undermining public confidence in the

judicial process.” Id. (citing Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 864 (1988))

(additional citations omitted).

3. Analysis

Judge Grocki was only challenged because his

impartiality might reasonably be questioned. We find

no abuse of discretion in his ruling. Judge Grocki cited

and applied the correct law and his findings of fact

regarding his civilian employment and work history

are not clearly erroneous. Judge Grocki’s application

of the objective standard of impartiality was not

clearly unreasonable, arbitrary, or fanciful.

Objectively, a reasonable person would have

favorably viewed the extensive inquiry Judge Grocki

allowed into his civilian employment, work history,

and professional presentations. Such a transparent

approach ensured a thoroughly developed record for

the public to observe during the trial and for us to

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review on appeal. We have considered the

declarations made to our court from Appellant, his

family, and his friends regarding their views of Judge

Grocki. We recognize that the law does not view

recusal subjectively through the eyes of those with a

stake in the outcome of the proceeding. Rather,

recusal is viewed through the eyes of a reasonable

person who is detached from the outcome of the

litigation but is concerned about public confidence in

the judicial process to reach that outcome.

Judge Grocki thoroughly described his civilian and

military roles and explained the distinction between

those roles. This would have reduced the possibility of

a reasonable person being confused about his separate

roles in his DoJ civilian position and as a reserve

military judge. Additionally, it would have been

abundantly clear to a reasonable person that

Appellant’s investigation and court-martial did not

intersect with the DoJ in any way. A reasonable

person would notice that Judge Grocki had presided

over Air Force cases with child pornography

specifications despite his concurrent civilian role in

the DoJ. A reasonable person would favorably

consider Judge Grocki’s significant experience in

different roles in the military justice system, including

as an area defense counsel and his specific disavowal

of any actual bias. A reasonable person would find

confidence in Judge Grocki’s explanation about how

seriously he took the issue of impartiality as a military

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judge and would recognize that it is common for

reserve military judges to have civilian legal

positions—including as prosecutors or defense

counsel—that must be left behind when they put on

their uniform and perform their military judicial

duties.

On the whole, a reasonable person initially could

have had some concern about Judge Grocki’s civilian

employment with DoJ and may have wanted to know

more about it before deciding whether Judge Grocki’s

impartiality reasonably might be questioned.

However, any initial concern about civilian

employment or a desire for additional information

would have been satisfied once all of the

circumstances were revealed in an open and thorough

fashion and Judge Grocki ruled on the recusal motion.

We find no abuse of discretion in Judge Grocki’s

decision to not recuse himself.

Even if we assume arguendo that Judge Grocki

abused his discretion by not recusing himself, in

applying the three Liljeberg factors, we would not find

reversal necessary to maintain public confidence in

the judicial process. See McIlwain, 66 M.J. at 315

(citing Liljeberg, 486 U.S. at 864). First, we find the

risk of injustice to the parties to be minimal. Judge

Speranza actually presided over the findings and

sentencing proceedings and Judge Grocki’s rulings

during motion practice show fair resolutions of the

legal issues that were presented to him. While

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Appellant cites one comment made by Judge Grocki to

one trial defense counsel during one motion argument,

we find this comment to be isolated and made in

passing. 18 After the comment, Judge Grocki

accurately summarized what the Defense requested

on the motion and in our view fairly resolved the legal

issue.

Second, we find the risk of injustice in other cases

to be low. We expect that reserve military judges will

have varying military justice assignments in their

backgrounds and different civilian positions when

selected and trained to be trial judges. We expect

military judges to follow the established law on

recusal and to invite the parties to question or

challenge them on the record, which leaves little risk

of injustice in other cases.

Third, we find the risk of undermining public

confidence to be low. There is no inappropriate judicial

behavior in this case and a different military judge

actually presided over the merits of the case. While

Judge Grocki made important rulings, the Defense

had an opportunity to request reconsideration of any

of those rulings once Judge Speranza was detailed. We

conclude that a member of the public, fully informed

of the circumstances, would believe that Appellant

had a fair trial with a reliable result.

We address this comment in the ineffective assistance of

counsel assignment of error.

18

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C. Court Member Excusals

1. Additional Background

In April 2018, after the court was assembled and

voir dire completed, two full days of Appellant’s fiveday-docketed trial had been consumed and the

Defense raised conflict concerns if the trial extended

into the weekend. Judge Grocki expressed concern of

being able to complete the findings phase of trial in

the docketed timeframe. The Government noted that

a defense expert consultant had to leave the next

evening and opined that the findings would not be

complete before this expert consultant had to depart.

After this discussion, the Defense moved for a

continuance which was granted until late July 2018.

Subsequently, Judge Grocki brought in the court

members as a group to discuss whether the

continuance affected their availability to sit as court

members. Various responses were obtained from the

members, but the responses of Lieutenant Colonel (Lt

Col) PBL and Lt Col KW are pertinent to this

assignment of error.

Lt Col PBL told Judge Grocki about an upcoming

assignment in June 2018 to a different organization

on JBMDL. No further questioning was conducted of

Lt Col PBL. Lt Col KW disclosed a selection for a

Secretary of Defense fellowship from 1 July through 4

August 2018 in Washington, D.C., which would be

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followed by a permanent change of station (PCS) to an

unknown location.

With all the members present, Judge Grocki

instructed that they could only be released upon a

showing of good cause by either the military judge or

the convening authority.

After the continuance, on 24 July 2018 Appellant’s

trial resumed with Judge Speranza presiding and a

new senior trial counsel as lead prosecutor. The

Government announced all of the amendments to the

convening orders including Special Order A-14, dated

21 June 2018, which is relevant to this assignment of

error. Special Order A-14 was inserted into the record

and it showed that Lt Col PBL and Lt Col KW were

“relieved.” After some preliminary matters, the newly

detailed court members were sworn and questioned

during voir dire. The Government mentioned three

members were absent but still on the panel and then

stated incorrectly, “The others were excused at an

earlier session.” Trial defense counsel said nothing

even though Lt Col PBL and Lt Col KW had been

excused by the convening authority and not by Judge

Grocki at an earlier session of the court-martial.

In response to this assignment of error, the

Government moved to attach a declaration of Colonel

(Col) WA, the staff judge advocate to the general

court-martial convening authority. Col WA’s

declaration includes several attachments which

76a

document the written excusal requests of Lt Col PBL,

dated 14 June 2018, and Lt Col KW, dated 20 April

2018, as well as the staffing package showing the

convening authority’s decision to excuse both court

members. We granted the motion to attach Col WA’s

declaration and the attachments over Appellant’s

objection. We understand that we are permitted to

consider declarations from outside the record of trial

when necessary to resolve issues raised by materials

in the record of trial. See United States v. Jessie, 79

M.J. 437, 442– 44 (C.A.A.F. 2020). This permits us to

consider the declaration of Col WA and the

attachments. Taken together, these documents show

that Lt Col PBL was not reassigned to another unit on

JBMDL but was selected for Air War College on 7

June 2018 and had a PCS to Maxwell Air Force Base,

Alabama, not later than 18 July 2018. Turning to Lt

Col KW’s excusal request, we note that the request

referenced the specifics of the Secretary of Defense

fellowship in a substantially similar way to what was

described on the record before Judge Grocki.

In his written advice to the general court-martial

convening authority, Col WA, citing R.C.M. 505(c)(2),

stated excusal after assembly may only be done for

“good cause on the record.” Col WA defined “good

cause” consistent with R.C.M. 505(f) and explained

that it does not include temporary inconveniences

which are incident to normal conditions of military

life. The general court-martial convening authority

77a

excused Lt Col PBL and Lt Col KW by initialing next

to their names.

Before us, Appellant argues that no good cause

was “shown on the record” for the excusals of Lt Col

PBL and Lt Col KW. Appellant states the convening

authority “failed to provide any rationale, let alone

good cause, for the excusals.” Appellant claims the

panel was not constituted in accordance with the

UCMJ or Rules for Courts-Martial and that the

court-martial lacked jurisdiction to try him. In his

reply brief, Appellant argues the excusals were

“without notice, opportunity to object, or establishing

‘good cause’ on the record,” and this deprived

Appellant of his “due process rights to be tried by the

panel that had been assembled in April 2018.”

The Government argues that the process of excusal

is not a jurisdictional issue and that Appellant’s

failure to object to the excusal process during trial

means we should review for plain error and find none.

2. Law

Article 29(a), UCMJ, 10 U.S.C. § 829(a), reads

No member of a general or special courtmartial may be absent or excused after

the court has been assembled for the

trial of the accused unless excused as a

result of a challenge, excused by the

military judge for physical disability or

78a

other good cause, or excused by order of

the convening authority for good cause.

R.C.M. 505(c)(2)(A) states, “After assembly no

member may be excused, except: (i) By the convening

authority for good cause shown on the record; (ii) By

the military judge for good cause shown on the record;

or (iii) As a result of a challenge under R.C.M. 912.”

When preserved by objection, we review a

convening authority’s decision to excuse a court

member for good cause, after assembly, for an abuse

of discretion. This is the same standard we use when

reviewing a military judge’s decision to excuse a court

member for good cause, after assembly. United States

v. Lizana, No. ACM 39280, 2018 CCA LEXIS 348, at

*11 (A.F. Ct. Crim. App. 13 Jul. 2018) (unpub. op.)

(citing United States v. Strand, 59 M.J. 455, 458

(C.A.A.F. 2004)).

“Whether a court-martial is properly constituted is

an issue of law we review de novo.” United States v.

Prasad, No. ACM 39003 (reh), 2019 CCA LEXIS 246,

at *8 (A.F. Ct. Crim. App. 10 Jun. 2019) (unpub. op.)

(citation omitted), rev’d on other grounds, 80 M.J. 23

(C.A.A.F. 2020). Interpretation of a statute and a Rule

for Court-Martial provision are also questions of law

that we review de novo. United States v. Hunter, 65

M.J. 399, 401 (C.A.A.F. 2008) (citation omitted);

United States v. Martinelli, 62 M.J. 52, 56 (C.A.A.F.

2005) (citation omitted).

79a

In United States v. Colon, 6 M.J. 73, 74 (C.M.A.

1978), the absence of four members detailed to a tenmember general court-martial did not constitute

jurisdictional error. In United States v. Sargent, 47

M.J. 367, 368 (C.A.A.F. 1997), no jurisdictional

significance was found when the statutory quorum of

members were present in a general court-martial even

though R.C.M. 805 stated “no court-martial

proceeding may take place in the absence of any

detailed member” and one member was absent and

never excused.

Service members do not enjoy “due process

protections above and beyond the panoply of rights

provided to them by the plain text of the Constitution,

the UCMJ, and the MCM.” United States v. Vazquez,

72 M.J. 13, 19 (C.A.A.F. 2013).

Whether an accused has waived or merely forfeited

an issue is a question of law we review de novo. United

States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017)

(citing United States v. Rosenthal, 62 M.J. 261, 262

(C.A.A.F. 2005)). “Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the

intentional relinquishment or abandonment of a

known right.” Id. (quoting United States v. Gladue, 67

M.J. 311, 313 (C.A.A.F. 2009)). When “an appellant

has forfeited a right by failing to raise it at trial, we

review for plain error.” United States v. Lopez, 76 M.J.

151, 154 (C.A.A.F. 2017) (quoting Gladue, 67 M.J. at

313). To prevail under a plain error analysis, an

80a

appellant must show “(1) there was an error; (2) it was

plain or obvious; and (3) the error materially

prejudiced a substantial right.” United States v.

Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (citations

omitted). However, forfeited constitutional errors are

assessed using the harmless beyond a reasonable

doubt test in Chapman v. California, 386 U.S. 18, 24

(1967). United States. v. Tovarchavez, 78 M.J. 458,

468 (C.A.A.F. 2019). “Chapman directs that the

government must show that the error was harmless

beyond a reasonable doubt to obviate a finding of

prejudice.” Id. at 462–63 (citing Chapman, 386 U.S. at

24).

3. Analysis

As a threshold matter, we see no waiver by

Appellant of this issue. The Government’s erroneous

statement that the excusals were made at a prior

session meant there was no need for Judge Speranza

to conduct a further inquiry on the record. While

Appellant did not object or correct the Government,

we cannot say from this record that the silence of the

Defense was more than an oversight. We see no

intentional relinquishment or abandonment of a

known right to object that the excusals were “for good

cause shown on the record.” We conclude that

Appellant forfeited the issue and will review for plain

error.

81a

Appellant’s first assertion is that the convening

authority did not constitute the panel in accordance

with the UCMJ or the Rules for Courts-Martial and

that the court-martial lacked jurisdiction to try him.

We find Appellant’s assertion of a lack of jurisdiction

without merit. Precedent such as Sargent and Colon

demonstrate that the issue of missing members is not

a jurisdictional issue unless the number of court

members falls below quorum. 47 M.J. at 368– 69; 6

M.J. at 74; see also United States v. Malczewskyj, 26

M.J. 995, 997 (A.F.C.M.R. 1988). While some of these

cases involved R.C.M. 805 whereas this case involved

R.C.M. 505, the fundamental issue is the same. The

excusal of members for good cause, but only off-therecord, does not raise jurisdictional questions so long

as the statutory quorum of members exists. At the

time of Appellant’s general court-martial in 2018, the

statutory quorum was a panel of not less than five

officer members. Article 16, UCMJ, 10 U.S.C. § 816.

One colonel and four lieutenant colonels composed the

panel who heard Appellant’s case. There is no

question they were each present during the open court

sessions of findings and sentencing. Therefore, we

reject Appellant’s claims of a lack of jurisdiction.

Next, we address Appellant’s claim—raised for the

first time in his reply brief—that he was deprived of

his “due process” rights to be tried by the panel that

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had been assembled in April of 2018. 19 Appellant cites

one of our sister-service court opinions, United States

v. Latimer, 30 M.J. 554 (A.C.M.R. 1990), and Colon—

an absent-member case—as authority. Only Colon

warrants further discussion. In Colon the military

judge elected to start the general court-martial when

only six of the ten detailed members had arrived by

the time court was to start. The military judge stated,

“It is after nine. Call them in. Whoever is not here will

be noted as absent.” 6 M.J. at 74. The issue in Colon

was that the convening authority was never notified

that four detailed members had not shown up for trial.

Id. After rejecting a jurisdictional challenge, the

United States Court of Military Appeals determined

“as a matter of military due process,” the conduct of

the military judge amounted to error because Article

19 Appellant does not claim that jeopardy attached at the time

the court members were assembled in April 2018 as in a civilian

jury trial where jeopardy attaches when a jury is empaneled and

sworn. See Crist v. Bretz, 437 U.S. 28, 35 (1978). Article 44(c),

UCMJ, 10 U.S.C. § 844(c), provides that jeopardy does not attach

in a court-martial until evidence is introduced and the CAAF has

found this statute constitutional. United States v. Easton, 71

M.J. 168, 170 (C.A.A.F. 2012). In Easton, the CAAF noted that

Article 29, UCMJ, “illustrates that, due to the unique nature of

the military, an accused’s chosen panel will not necessarily

remain intact throughout a trial.” Id. at 175. By enacting Article

29, UCMJ, “Congress evinced the intent that, in light of the

nature of the military, an accused does not have the same right

to have a trial completed by a particular court panel as a

defendant in a civilian jury trial does.” Id. at 175–76.

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25(d)(2), UCMJ, permitted the convening authority to

choose the basic composition of the court-martial

assembled for trial. Id. at 74–75. Later, in rejecting a

government waiver argument, the Court of Military

Appeals noted that “[t]he concept of waiver has not

been embraced with much affection by this Court

where evidence of record clearly demonstrates that a

military judge denied military due process to an

accused at his court-martial.” Id. at 75 (citation

omitted). In essence, Colon twice referenced that

missing court members without convening authority

notification was a “military due process” issue.

In 2013, the United States Court of Appeals for the

Armed Forces (CAAF) decided Vazquez and made

clear that “due process” protections afforded service

members are those in the plain text of the

Constitution, the UCMJ, and the MCM, and rejected

our court’s mistaken reliance on the “amorphous

concept” of “military due process.” 72 M.J. at 15–19.

Therefore, we will apply Vazquez though we note that

its holding rejected an as-applied constitutional

challenge to Article 29(b), UCMJ, and R.C.M. 805

while this case involves Article 29(a) and R.C.M. 505.

After considering Vazquez and the due process

rights in the Constitution, the UCMJ, and the MCM,

we reject Appellant’s claim that he was entitled to

have the court-martial which was assembled in April

of 2018 try his case through findings and sentencing.

First, we find no due process violation under the

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Constitution. See id. at 18–19 (discussing Congress is

subject to the requirements of the Due Process Clause

when legislating but courts “must give particular

deference” in congressional determinations made

under U.S. CONST. ART. I, § 8) (quoting Weiss v.

United States, 510 U.S. 163, 176–77 (1994)). Second,

we find no Article 29(a), UCMJ, violation. Congress

specifically authorized a convening authority to

excuse court members after assembly for good cause

shown. Appellant’s claim finds no support in the

statutory language of Article 29(a), UCMJ, as the

convening authority could have excused the entire

panel after assembly if there was good cause to do so

and still satisfied Article 29(a), UCMJ. Third,

Appellant’s due process claim also does not find

support in the MCM as the President in promulgating

R.C.M. 505 permitted a convening authority to excuse

court members after assembly for good cause shown

on the record. Therefore, under this rule, the

convening authority could have excused the entire

panel, after assembly, as long as the good cause was

shown on the record. In essence, the rule’s additional

language of “on the record” merely requires off-therecord excusal decisions of the convening authority

after assembly be directly addressed in some

reasonable manner in open court. We reject

Appellant’s vague “due process” claim that he had the

right to have the assembled panel in April 2018 decide

the findings and sentence in his case.

85a

We now address whether the convening authority

complied with Article 29(a), UCMJ, by excusing two

members after assembly. We find no plain or obvious

error. Appellant challenges whether the excusal of Lt

Col PBL was for “good cause.” While the convening

authority did not cite the reasons for excusal of Lt Col

PBL, the advice of the staff judge advocate and the

request of Lt Col PBL show the rationale. The staff

judge advocate included the appropriate “good cause

shown” standard even though Article 29(a), UCMJ,

was not specifically cited. We see no plain or obvious

error in the excusal of Lt Col PBL who received an

assignment notification to attend Air War College at

Maxwell AFB and would begin classes before

Appellant’s trial resumed. R.C.M. 505(f) lists a

“military exigency, and other extraordinary

circumstances” which renders a member unable to

proceed with the court-martial within a reasonable

time as two types of good cause. Appellant has not

shown that the selection for in-residence Air War

College was plainly or obviously insufficient to be a

military exigency or an extraordinary circumstance.

To be clear, Appellant has not suggested that the

convening authority excused Lt Col PBL for any

improper reason, which, if alleged, would have

warranted close scrutiny. Using the same rationale,

we see no plain or obvious error under Article 29(a) in

the excusal of Lt Col KW. The Secretary of Defense

fellowship and subsequent follow-on assignment

rendered Lt Col KW unable to continue to serve on

86a

Appellant’s court-martial when it resumed. Appellant

has not shown this was plainly or obviously

insufficient to be a military exigency or an

extraordinary circumstance. There is nothing before

us to suggest that the convening authority’s

determination to excuse Lt Col KW was based on any

improper reason.

We now reach the issue of whether good cause was

“shown on the record” such that two excusals complied

with R.C.M. 505(c)(2)(A). Starting with Lt Col PBL’s

excusal, we find it was plain or obvious error when the

Government failed to show good cause for the excusal

on the record. The record never demonstrated that Lt

Col PBL had been selected for Air War College after

the continuance was granted. Rather, the record only

showed that Lt Col PBL was changing units and

would still be assigned to JBMDL when court

resumed. Without more, a reassignment on the same

installation was an insufficient “on the record”

showing for a good cause excusal after assembly. We

conclude that this was a plain or obvious error to not

announce the Air War College assignment as the good

cause for Lt Col PBL’s excusal for four reasons: (1)

Special Order A-14 did not explain the reasoning for

the post-assembly excusal; (2) no part of the excusal

package was marked as an appellate exhibit; (3) trial

counsel did not announce the substantive reasons for

the excusal in open court; and (4) trial counsel

misstated that some members, which included Lt Col

87a

PBL, had been excused at a prior session. We will

assess whether there was material prejudice by this

plain or obvious error below.

Turning to Lt Col KW’s excusal, we find no plain

or obvious error as we see sufficient good cause shown

on the record. The excusal itself was documented on

Special Order A-14 and Lt Col KW’s selection for a

Secretary of Defense fellowship was discussed during

individual voir dire. Afterwards, in a session outside

of the members’ presence, the senior trial counsel

stated, “I anticipate at least with [Lt Col KW] there

might be an excusal.” Judge Grocki replied, “Yeah.”

Trial defense counsel said nothing. Under these

circumstances, Appellant has not shown a plain or

obvious error that good cause was not shown on the

record. Lt Col KW’s written excusal request from the

convening authority showed similar reasons to those

raised during individual voir dire. Further, the

distinct possibility of Lt Col KW’s excusal was

discussed by the trial counsel and acknowledged by

the military judge. Having resolved there was no plain

or obvious error, we do not reach the question of Lt Col

KW’s excusal resulted in material prejudice.

Finally, we must determine whether material

prejudice resulted from the excusal of Lt Col PBL for

good cause, but with none “shown on the record” as

required by R.C.M. 505(c)(2)(A)(i). The test for

prejudice is “based on the nature of the right violated.”

United States v. Clark, 79 M.J. 449, 454 (C.A.A.F.

88a

2020) (quoting Tovarchavez, 78 M.J. at 465). The

standard of review and allocation of burdens depends

on whether the defect amounts to a constitutional

error or a nonconstitutional error. Id. at 454.

We do not find the noncompliance with R.C.M.

505(c)(2)(A)(i) to implicate Appellant’s constitutional

rights such that the Government must show the error

was harmless beyond a reasonable doubt. “As a

matter of due process, an accused has a constitutional

right, as well as a regulatory right, to a fair and

impartial panel.” United States v. Commisso, 76 M.J.

315, 321 (C.A.A.F. 2017) (citation omitted). However,

there is no question raised about the fairness or

impartiality of the panel members who sat on

Appellant’s case. In Colon—a case with four

unexplained missing members—there was “a

substantial reduction in the membership of the Court

so as not to represent the kind of court contemplated

by the convening authority in his original detail.”

Malczewskyj, 26 M.J. at 998 (quoting Colon, 6 M.J. at

75.). Here, the convening authority personally

excused the members. We see no substantial

reduction in the membership of the court such that it

did not “represent the kind of court contemplated by

the convening authority in his original detail.” Id.

Therefore, we conclude that the failure to show good

cause on the record was a nonconstitutional

administrative error made by the Government.

89a

Even administrative errors are tested for

prejudice, but under plain error Appellant would bear

the burden of demonstrating material prejudice. In

United States v. Cook, a dispute was raised whether

the

staff

judge

advocate

violated

R.C.M.

505(c)(1)(B)(ii) by excusing more than one-third of the

detailed court-members before assembly. 48 M.J. 434,

436 (C.A.A.F. 1998). The CAAF declined to resolve the

“computational dispute” of the parties but stated

“[a]ny error with respect to such an administrative

matter must be tested for prejudice.” Id. (citation

omitted). The CAAF then noted the appellant did not

argue prejudice and did not object. Id. The CAAF

stated “[t]here is nothing to indicate that, at the outset

of trial, [the appellant] was dissatisfied with the panel

or that he wanted to give the convening authority an

opportunity to alter its composition.” Id. The CAAF

opinion concluded that any error was “not plain error”

and did not require the Government to bear the

burden of showing that no prejudice existed. See id.

We see similarities between the excusal of Lt Col PBL

before us and Cook. Here, Appellant raised no concern

with Lt Col PBL’s excusal during his trial and had

ample time to do so as the excusal occurred a month

prior to court resuming. While Appellant raises a

claim of prejudice now, we see no dissatisfaction

raised at the outset of the trial with the panel that

would hear his case.

90a

The CAAF has also drawn a distinction between

administrative mistakes and more egregious errors in

the context of noncompliance with member selection

under Article 25, UCMJ. United States v. Dowty, 60

M.J. 163, 173 (C.A.A.F. 2004). In Dowty, the CAAF

stated that an

error in preliminarily screening the

members

was

not

merely

an

“administrative mistake.” As the error

was more egregious, we conclude that

the Government has the burden to

demonstrate that the error did not

“materially prejudice the substantial

rights of the accused.”

Id. (citing Article 59(a), 10 U.S.C. § 859(a) (2000)).

We do not see an egregious error like in Dowty.

Here, the error was more attributable to a change of

the senior trial counsel and confusion of the assistant

trial counsel in documenting the excusal rather than

a defect in the excusal process itself. The failure to

state good cause on the record only involved one

excused member, Lt Col PBL. The difference between

the five members who decided the findings and

adjudged the sentence and six members (if Lt Col PBL

had also sat on the case) would not have impacted how

many members would be needed for the Government

to obtain a conviction based on the law at the time.

Regardless of whether the panel was five officers or

six officers, at the time, two-thirds or four members

91a

would have been needed to vote for a finding of guilty

to any charge and specification. As Appellant was

sentenced to less than ten years of confinement, the

same two-thirds would have been needed to determine

the sentence.

Appellant argues that prejudice lies in “not being

tried by the panel originally assembled, particularly

with respect to Lt Col PBL.” Appellant argues the voir

dire of Lt Col PBL demonstrated he “was a desirable

panel member for Appellant because he had been

falsely accused of sexually assaulting someone when

he was 15 years old.” In essence, Appellant would

assess prejudice through his lens of a favorable panel,

rather than the convening authority’s lens of selecting

a panel of his or her choosing under Article 25, UCMJ,

criteria. We are not persuaded by Appellant’s

argument.

We see nothing in the record to indicate that the

convening authority selected Lt Col PBL for service on

Appellant’s court-martial because of the prior false

allegation against Lt Col PBL which was discussed

during individual voir dire. Rather, the record

indicates the convening authority followed the advice

of the staff judge advocate and selected Lt Col PBL

using the criteria listed in Article 25, UCMJ, as an

officer best qualified by reason of age, education,

training, experience, length of service, and judicial

temperament. We also see nothing in the excusal

package which identified the prior false accusation

92a

against Lt Col PBL which would have alerted the

convening authority to the concern Appellant raises

on appeal.

Even if the Government bears the burden of

showing no material prejudice to Appellant and that

the administrative error was harmless, it has done so.

Lt Col PBL did not hear the evidence in this case,

receive the instructions on the law, or participate in

deliberations. We cannot ascertain how Lt Col PBL

would have participated in deliberations with the

members who heard this case. There is little question

that Lt Col PBL knew first-hand that false complaints

were possible, but the two court members detailed

after assembly who heard Appellant’s case also agreed

that it was possible for someone to falsely accuse a

person of a crime as serious as sexual assault. Under

these

circumstances,

the

Government

has

demonstrated that Appellant suffered no material

prejudice from Lt Col PBL’s excusal for good cause not

being “shown on the record” under R.C.M.

505(c)(2)(A)(i).

D. Legal and Factual Sufficiency

1. Additional Background

Appellant argues that “a fair and rational

hypothesis other than guilt” exists because he “never

performed oral sex on JK.” Appellant cites the lack of

eyewitnesses, physical evidence, or admissions of guilt

by him. Appellant also challenges the evidence on the

93a

penetration element and JK’s credibility. Some of

these arguments warrant further discussion.

First, regarding physical evidence, Appellant

asserts that the DNA evidence from JK’s underwear

was not conclusively tied to him as it could have

belonged to his paternal male relatives who had lived

in or visited his house. Appellant also argues that the

male DNA, if his, could have been transferred to JK’s

underwear innocently, such as through laundry or a

consensual massage. Appellant also argues that some

of his DNA should have been on the swabs of JK’s

external genitalia if the incident occurred. Lastly,

Appellant argues that AFOSI should have found

bodily fluids during a search of his living room if the

incident happened.

Second, regarding the penetration element,

Appellant asserts that JK’s statements at ND’s house,

in her SAFE narrative, and to AFOSI did not suggest

penetration occurred.

Third and finally, regarding JK’s credibility,

Appellant states that she (1) was an admitted “liar

and manipulator;” (2) had a reputation for

untruthfulness within her own family; (3) wanted to

move out because he was too strict; and (4) falsified

the allegation against him to return to her biological

mother.

94a

2. Law

We review issues of legal and factual sufficiency de

novo. United States v. Washington, 57 M.J. 394, 399

(C.A.A.F. 2002) (citation omitted). Our assessment of

legal and factual sufficiency is limited to the evidence

produced at trial. United States v. Dykes, 38 M.J. 270,

272 (C.M.A. 1993) (citations omitted).

The test for legal sufficiency of the evidence is

“whether, considering the evidence in the light most

favorable to the prosecution, a reasonable factfinder

could have found all the essential elements beyond a

reasonable doubt.” United States v. Turner, 25 M.J.

324, 324 (C.M.A. 1987) (citation omitted); see also

United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F.

2002) (citation omitted). “[I]n resolving questions of

legal sufficiency, we are bound to draw every

reasonable inference from the evidence of record in

favor of the prosecution.” United States v. Barner, 56

M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). “The

term reasonable doubt, however, does not mean that

the evidence must be free from conflict.” United States

v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017)

(citing United States v. Lips, 22 M.J. 679, 684

(A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).

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 [appellant]’s

95a

guilt beyond a reasonable doubt.” Turner, 25 M.J. at

325. “In conducting this unique appellate role, we take

‘a fresh, impartial look at the evidence,’ applying

‘neither a presumption of innocence nor a

presumption of guilt’ to ‘make [our] own independent

determination as to whether the evidence constitutes

proof of each required element beyond a reasonable

doubt.’” Wheeler, 76 M.J. at 568 (alteration in original)

(quoting Washington, 57 M.J. at 399).

Based on the charge sheet, to convict Appellant of

sexual assault in violation of Article 120, UCMJ, the

Government was required to prove beyond a

reasonable doubt: (1) that at or near JBMDL, New

Jersey, on or about 11 September 2016, Appellant

committed a sexual act upon JK by penetrating her

vulva with his mouth; and (2) that Appellant did so by

causing bodily harm, to wit: a nonconsensual sexual

act with an intent to gratify the sexual desire of either

JK or Appellant. See Manual for Courts-Martial,

United States (2016 ed.) (MCM), pt. IV, ¶ 45.b.(4)(b).

“Sexual act” includes “the penetration, however

slight, of the vulva . . . of another by any part of the

body . . . with an intent to . . . arouse or gratify the

sexual desire of any person.” MCM, pt. IV, ¶

45.a.(g)(1)(B). “Bodily harm” means “any offensive

touching of another, however slight, including any

nonconsensual sexual act or nonconsensual sexual

contact.” See MCM, pt. IV, ¶ 45.a.(g)(3). “‘[C]onsent’

means a freely given agreement to the conduct at

96a

issue by a competent person. An expression of lack of

consent through words or conduct means there is no

consent.” MCM, pt. IV, ¶ 45.a.(g)(8)(A). “Lack of

consent may be inferred based on the circumstances

of the offense. All the surrounding circumstances are

to be considered in determining whether a person

gave consent, or whether a person did not resist or

ceased to resist because of another person’s actions.”

MCM, pt. IV, ¶ 45.a.(g)(8)(C). “The burden is on the

actor to obtain consent, rather than the victim to

manifest a lack of consent.” United States v.

McDonald, 78 M.J. 376, 381 (C.A.A.F. 2019).

3. Analysis

Appellant claims the lack of eyewitnesses and the

absence of admissions of guilt by him demonstrate

that there is a “fair and rational hypothesis other than

guilt” that he “never performed oral sex on JK.” We

disagree. While some cases involve corroboration of

victim testimony through eyewitness testimony or

admissions of guilt by an appellant, the law does not

require such evidence to sustain a conviction as

legally and factually sufficient on appeal. The

Government may meet its burden to prove each

element beyond a reasonable doubt through testimony

of only one witness “so long as the members find that

the witness’s testimony is relevant and is sufficiently

credible.” United States v. Rodriguez-Rivera, 63 M.J.

372, 383 (C.A.A.F. 2006) (citations omitted). Here,

JK’s testimony established the elements of the

97a

charged Article 120, UCMJ, sexual assault offense.

While Appellant challenged JK’s credibility on several

bases, as we will discuss in greater detail below, the

members found JK sufficiently credible. The lack of

other eyewitnesses or admissions of guilt do not

render the conviction for this offense legally or

factually insufficient.

a. Physical Evidence or Lack Thereof

Appellant’s asserts that JK’s testimony is not

supported by the physical evidence in the case. We are

not persuaded. The DNA evidence on the inside crotch

area of JK’s underwear provided some support to JK’s

testimony though it is correct that Appellant’s

paternal male relatives could not be excluded from the

Y-STR testing results. Appellant offers several

innocent reasons why male DNA—from which he

could not be excluded—was found on the inside crotch

of JK’s underwear. But a reasonable factfinder who

was considering whether the DNA was transferred

inadvertently through laundry or other means would

have also realized that no other foreign DNA was

found in the same location on JK’s underwear. A

reasonable factfinder would have realized the limits of

the DNA results from the inside crotch of JK’s

underwear and concluded that it only provided some

support for JK’s testimony and should be considered

along with all the other evidence in the case.

98a

Regarding the absence of physical evidence, a

reasonable factfinder could have concluded that there

were legitimate reasons why certain biological

evidence was not found and that the absence of the

evidence did not mean that JK fabricated the assault.

Specifically, Appellant argues if the incident occurred

then his DNA would have been on the swabs of JK’s

external genitalia. This ignores the evidence that JK

urinated and wiped prior to swabs being collected

during the SAFE. The Government’s expert DNA

examiner testified this could affect DNA retention, a

fact that would not have gone unnoticed by a

reasonable factfinder. Additionally, eight swabs were

collected from JK’s external genitalia during the

SAFE rather than the normal two. According to the

Government’s DNA expert, taking six additional

swabs could have diluted any male DNA that was

present. USACIL did not test all eight swabs because

some needed to be saved. The Government’s DNA

expert explained that “[i]t could be that I didn’t get a

good sampling from each of the swabs.” A reasonable

factfinder could have determined that the above

reasons accounted for why Appellant’s DNA was not

found on the external genital swabs of JK that

USACIL tested.

Similarly, Appellant argues the outer mouth area

swabs that AFOSI collected from him should have

shown JK’s DNA if the incident occurred. There is no

question that no foreign DNA was found on the outer

99a

mouth swabs when tested. A reasonable factfinder

would have considered that no foreign DNA was

found, while recognizing the amount of time that

passed and Appellant’s access to a bathroom, before

deciding what weight to give the results of his outer

mouth swabs. A reasonable factfinder could have

believed that the offense occurred as charged despite

the absence of JK’s DNA on Appellant’s outer mouth

swabs.

The final argument Appellant raises regarding

absence of physical evidence is that AFOSI found no

biological evidence in the downstairs living room. We

disagree that this shows the offense was not

committed. A reasonable factfinder could have

considered JK’s testimony and determined that the

manner in which she described the offense would not

have left biological evidence for AFOSI to observe with

their crime-scene handheld LED light source and

subsequently collect.

b. Penetration

Appellant’s next assertion is that JK’s statements

made at ND’s house, during her SAFE, and to AFOSI

did not suggest penetration occurred. We address each

of these assertions in turn.

We agree that the evidence produced at trial did

not include a description of penetration in JK’s initial

disclosure at ND’s house. A reasonable factfinder

would consider this, along with the other evidence in

100a

the case, but would also recognize that JK’s initial

disclosure did not involve questioning on the subject

of penetration by ND’s mother or security forces

personnel.

JK’s SAFE report is on a State of New Jersey

Forensic Medical Examination Report. The acts of

“licking/kissing” are checked “Yes” in the “oral

contact” section of the form. The listed location of the

oral contact is “vaginal area.” The SAFE report has a

section for “Penetration – Into Vagina” with three

possible responses: By Finger(s), By Penis, By Foreign

Object. Each of these is checked No. There is no block

on the form for penetration by the mouth. The

narrative JK provided was “dad then put his mouth

on her vagina and licked the area.” A reasonable

factfinder could have determined that the SAFE

report left open the question of whether penetration of

JK’s vulva occurred by Appellant’s mouth. That the

“foreign object” block might have been broad enough

to include Appellant’s mouth is not a strong indicator

that JK denied penetration; the New Jersey form did

not utilize a more precise question such as whether

“any other body part” of Appellant penetrated JK’s

vulva, however slight.

JK’s statements to AFOSI, as admitted into

evidence, were definitive regarding penetration. JK

was asked whether any part of Appellant’s mouth

penetrated inside of her vagina. JK responded, “It did

penetrate.” JK’s trial testimony was consistent with

101a

her statement to AFOSI. JK testified that Appellant

used his tongue and mouth to “orally stimulate” her

and that he “partially” penetrated her vagina when

doing so. A reasonable factfinder could have concluded

that Appellant penetrated JK’s vulva with his mouth,

however slightly, as charged, based on JK’s

statements to AFOSI and her trial testimony, and

discounted the disclosure at ND’s house and the

statements made during her SAFE on the subject of

penetration.

c. JK’s Credibility

Appellant’s challenges to JK’s credibility are

similar to the theories he posited in his AFOSI

interview and raised during trial. It is true that JK

admitted in cross-examination that she wrote in her

journal that she lied “constantly” to her parents and

friends. JK described her bigger lies as including

whether she talked to teachers or did schoolwork. JK

also agreed she lied to Appellant about having

boyfriends and that sometimes she manipulated

people. She agreed that she wrote that she wanted

people to like her so badly that she faked who she was.

It is also true that Appellant’s mother-in-law testified

that JK had a reputation for untruthfulness amongst

the entire family, though other witnesses, outside the

family, testified to JK’s character for truthfulness.

There is little question that Appellant and SK were

strict with JK and in comparison to some of JK’s

102a

friends much more strict. Appellant said no to JK’s

requests often enough to make her angry. But JK also

testified that she loved Appellant and did not want to

get him in trouble. JK denied that she made up a story

about Appellant performing oral sex on her. A

reasonable factfinder would have concluded that there

was overwhelming evidence that JK wanted to remain

in New Jersey where she attended school, was

involved in sports, had close friends, and was seeking

a relationship with a boy, CH. A reasonable factfinder

could have concluded that Appellant’s strict policies

and parenting practices, while true, were not

indicative of a fabricated sexual assault, especially as

immediately before the assault JK and Appellant

were alone, harmoniously watching movies together

in the downstairs living room.

Lastly, there are some references to JK’s biological

mother in the evidence, but none which supported

that JK fabricated the incident to return to live with

her biological mother. JK was questioned about her

relationship with her biological mother and it was

essentially non-existent. JK’s biological mother did

not testify. Appellant’s comments to AFOSI that JK’s

biological mother must somehow be behind JK’s

fabrication is wholly unsupported by the evidence. A

reasonable factfinder would have determined that the

evidence did not support a conclusion that JK

fabricated the claims against Appellant to live with

her biological mother.

103a

We have considered whether the evidence about

JK’s lies, manipulations, and reputation for

truthfulness in her family are such that we cannot

believe her testimony and prior consistent statements

to AFOSI that Appellant sexually assaulted her as

charged. We also weighed Appellant’s interview with

AFOSI where he denied committing the offense yet

also omitted how he massaged JK from his initial

narrative of the evening. We closely examined how

Appellant responded when AFOSI informed him of

JK’s specific accusation and found him evasive,

especially when he unconvincingly pondered what

movie the two had been watching even though in his

initial narrative he had already told AFOSI the names

of the exact two movies that had been watched. This

evasiveness is evidence of his consciousness of guilt

for us to consider with the other evidence presented

before the court members.

This was not the first time that one of Appellant’s

massages made JK uncomfortable. The first time a

massage became invasive, JK confided in her friends.

A months-long massage ban followed that first

incident. Appellant and JK agreed that the massage

ban had been recently relaxed before 10 September

2016. By all accounts, JK and Appellant were happily

alone in the downstairs family room, drinking alcohol,

watching multiple movies, before a consensual

massage began. Their prior parent/teenager

disagreements and conflicts about school and life

104a

appear to us to be largely absent. Then, a short time

after a consensual massage began, JK abruptly left

the downstairs living room without her cell phone,

found an alternative method to message ND, fled her

house despite the late hour, and believed she saw

Appellant outside. These actions provide strong

circumstantial evidence that one of Appellant’s

massages became invasive, again, and resulted in the

sexual assault, as charged. We have considered the

evidence from Appellant’s family members and

friends who essentially believe that Appellant was

incapable of committing this offense and that JK

fabricated it. We conclude that a reasonable factfinder

could have found that every essential element of the

sexual assault offense was proven beyond a

reasonable doubt.

Drawing “every reasonable inference from the

evidence of record in favor of the [P]rosecution,” the

evidence was legally sufficient to support Appellant’s

conviction of sexual assault of JK beyond a reasonable

doubt. See Barner, 56 M.J. at 134 (citations omitted).

Moreover, having weighed the evidence in the record

of trial and having made allowances for not having

personally observed the witnesses as the members

did, we are convinced of Appellant’s guilt beyond a

reasonable doubt. See Turner, 25 M.J. at 325.

Appellant’s conviction for sexual assault of JK is both

legally and factually sufficient.

105a

E. Prior Consistent Statements

1. Additional Background

The military judge admitted, over defense

objection, several statements of JK as prior consistent

statements under Mil. R. Evid. 801(d)(1)(B) after JK

was cross-examined about several motives to

fabricate. Two subsequent witnesses in the

Government’s case-in-chief, ND’s mother and a

security forces member, testified to hypothetical

statements that JK made when inside ND’s house.

While styled initially as hypotheticals, JK clarified for

the witnesses that Appellant was the father in the

hypotheticals and she was the daughter. During

rebuttal, an audio recording of JK’s statements to

AFOSI was played for the court members.

Some of JK’s motives to fabricate existed before

she reported what Appellant did to her. Two motives

which were prominently featured were: (1) that JK

wanted to date a boy, CH; and (2) JK wanted to attend

to college at The Pennsylvania State University (Penn

State) with CH. Regarding dating CH, Appellant

would not let JK date CH until the family met him. In

the days before JK reported the incident before us

involving Appellant, CH made a short visit to the

house and met her parents and paternal

grandparents. After the visit, JK and CH tried to

organize a date to go to the movies. Regarding college

106a

choices, JK had already told CH her top choice was

Penn State.

However, there were many times during crossexamination where trial defense counsel asked JK

questions about events and motives that occurred well

after JK reported Appellant. These events and

motives included that (1) JK started a dating

relationship with CH about a week after she reported;

(2) their first in-person date was at an on-base concert

12 days after she reported; (3) JK moved to Montana

to live with Appellant’s parents and hated being away

from CH; and (4) after her 18th birthday, JK returned

to New Jersey and moved in with CH and his parents.

JK was also cross-examined that, at the time of trial,

she (1) lived with CH in Pennsylvania; (2) would be

attending Penn State in the upcoming semester; and

(3) was now engaged to CH.

The first witness to testify about JK’s prior

statements in the Government’s case-in-chief was

ND’s mother. Before allowing ND’s mother to testify,

the military judge conducted a hearing outside of the

court members’ presence to address two objections by

the Defense: hearsay and cumulativeness. The

Government argued that JK’s prior statements were

not hearsay because they were prior consistent

statements under Mil. R. Evid. 801(d)(1)(B). The

military judge agreed with the Government and

concluded that the Defense’s cross-examination

questions about JK “going to Penn State” and “moving

107a

in with her boyfriend, [CH]” showed the Defense had

“tried to establish a motive or at least inference of an

improper, influence, or motive.” The military judge

overruled the hearsay objection and we find his ruling

is consistent with the language in Mil. R. Evid.

801(d)(1)(B)(i). The military judge also overruled an

objection that ND’s mother’s testimony was

cumulative with JK’s testimony as she was the first

witness to testify to a prior consistent statement of

JK.

Pertinent to Appellant’s offenses, 20 ND’s

mother

testified

that

JK

said

hypothetically she was at home watching

a movie with her dad, her mom went to

sleep along with her siblings. . . . she was

complaining about a groin pain . . . he

gave her some wine . . . he said he would

As described above, ND’s mother also testified about a

hypothetical that JK told about an allegation made against a

“stepfather” by “a young girl” before the girl came to live with her

dad. Appellant has not claimed error. However, even if we

assume that it was a plain or obvious error to admit this portion

of the hypothetical because the military judge had ruled that

only limited testimony was allowed about JK’s allegation against

her stepfather, we find no prejudice as this testimony had no

substantial influence on the findings or sentence. In particular,

the evidence lacked materiality because its subject matter

involved wrongdoing by JK’s stepfather, not Appellant, and few

details on the nature of the allegation were given to the court

members. See United States v. Ayala, 81 M.J. 25, 29 (C.A.A.F.

2021).

20

108a

massage the place where she had the

pain in her groin and then he started

massaging her leg and then his hands

went under her shorts and her

underwear.

ND’s mother did not mention oral penetration when

testifying about JK’s hypothetical. 21 However, ND’s

mother did testify that (1) the dad in the hypothetical

asked afterwards “will you tell mom?” and (2) JK said

she left her house and crossed a wooded area before

arriving at ND’s house.

The second witness to testify about JK’s prior

statements during the Government’s case-in-chief

was Master Sergeant (MSgt) AD, a security forces

patrolman who responded to the “potential break-in”

only to find JK outside the house. Trial defense

counsel objected to MSgt AD’s testimony as hearsay

and cumulative with ND’s mother’s testimony. The

Defense declined the military judge’s offer of another

hearing outside of the members’ presence. The

military judge overruled both objections. Regarding

the hearsay objection, the military judge found JK’s

21 The record of trial contains the AFOSI report of investigation

which shows a summary of an interview ND’s mother completed

with AFOSI agents three days after the incident. In that

summary, JK’s hypothetical included “if a man is sitting

watching a movie and a man rubs their daughter’s legs and puts

his mouth ‘down there.’” ND’s mother did not write a statement

to AFOSI.

109a

statements preceded the motive to fabricate and

improper influence. Regarding cumulativeness, the

military judge cited Mil. R. Evid. 403 and ruled the

probative value of the prior consistent statements was

“not outweighed by the dangers of unfair prejudice.”

MSgt AD testified that JK said

what if this girl was out playing sports

and sustained an injury playing soccer

and . . . was offered to be massaged in her

thigh

area

by

[her]

father.

Hypothetically, what if this person’s

father made sexual advancements.

Hypothetically, what if this person’s

father tried to perform oral sex.

During the Defense’s case-in-chief, several

witnesses testified to Appellant’s character for

truthfulness. Appellant’s wife, SK, testified about

family dynamics. Appellant’s mother-in-law testified

that JK had a reputation “amongst the entire family”

for untruthfulness. Appellant’s father described JK’s

relationship with CH after the allegations when JK

lived with Appellant’s parents for a time in Montana.

Appellant’s father observed JK spending an average

of at least five hours a day communicating with CH in

various ways.

He opined that, at the time, JK wanted to return to

New Jersey because she loved CH and wanted to live

with CH.

110a

During rebuttal and over defense objection, the

military judge permitted the audio of JK’s videorecorded interview with two AFOSI agents to be

played in open court as a prior consistent statement.

The military judge reviewed a transcript of the

interview before ruling on its admissibility. The

military judge’s ruling focused on the post-interview

motives to fabricate that were brought up in crossexamination of JK and later in the Defense’s case-inchief. The military judge found admitting the video

recording itself as a prosecution exhibit and letting

the court members view it would raise some danger of

prejudice as the court members could use it to

evaluate the demeanor of the AFOSI agents and JK.

Therefore, the military judge only permitted the audio

to be played. The military judge ruled the “interview

itself” was not a statement and that the questions and

comments by the agents were not admissible as

substantive evidence and could only be considered for

their effect on JK as a listener. The military judge

ruled two areas were admissible as prior consistent

statements: statements related to (1) whether JK lied

about why she went to ND’s house; and (2) “the

allegations themselves.” The Defense also objected

that JK or the AFOSI agents were not on the witness

stand when the audio was played. The military judge

overruled this objection.

111a

2. Law

We review a military judge’s decision to admit

evidence for an abuse of discretion. United States v.

Finch, 79 M.J. 389, 394 (C.A.A.F. 2020) (citing United

States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019)). “A

military judge abuses his discretion when his findings

of fact are clearly erroneous, the court’s decision is

influenced by an erroneous view of the law, or the

military judge’s decision . . . is outside the range of

choices reasonably arising from the applicable facts

and the law.” United States v. Kelly, 72 M.J. 237, 242

(C.A.A.F. 2013) (citation omitted).

“Hearsay statements—out of court statements

offered into evidence to prove the truth of the matters

asserted—usually are inadmissible in courtsmartial.” United States v. Norwood, 81 M.J. 12, 17

(C.A.A.F. 2021) (citing Mil. R. Evid. 801(c)), cert.

denied, ___ S. Ct. ___, 2021 U.S. LEXIS 3528 (28 Jun.

2021). Mil. R. Evid. 801(d)(1)(B) provides that a

statement is not hearsay if it “is consistent with the

declarant’s testimony and is offered: (i) to rebut an

express or implied charge that the declarant recently

fabricated it or acted from a recent improper influence

or motive in so testifying; or (ii) to rehabilitate the

declarant’s credibility as a witness when attacked on

another ground.” Prior consistent statements “may be

eligible for admission under either [Mil. R. Evid.

801(d)(B)(i)] or (B)(ii) but not both.” United States v.

Ayala, 81 M.J. 25, 28 (C.A.A.F. 2021).

112a

A prior consistent statement may be admitted as

substantive evidence if three threshold requirements

are met: “(1) the declarant of the statement testifies

at the court-martial, (2) the declarant is subject to

cross-examination, and (3) the statement is consistent

with the declarant’s testimony.” Norwood, 81 M.J. at

17 (citations omitted). The party that attempts to

admit the prior consistent statement into evidence

bears the burden of proving that it is admissible. Id.

A key question in considering admission under Mil.

R. Evid. 801(d)(1)(B)(i) is “whether the prior

statements came before or after the alleged motive to

fabricate.” Ayala, 81 M.J at 28. The CAAF identified

“two additional guiding principles that govern

admission” under Mil. R. Evid. 801(d)(1)(B)(i). Id. at

28– 29 (citation omitted). These guiding principles

are: “the prior statement . . . must precede any motive

to fabricate or improper influence that it is offered to

rebut,” and “where multiple motives to fabricate or

multiple improper influences are asserted, the

statement need not precede all such motives or

inferences, but only the one it is offered to rebut.”

Frost, 79 M.J. at 110 (citations omitted).

“The military judge may exclude relevant evidence

if its probative value is substantially outweighed by a

danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the

members, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Mil. R. Evid. 403.

113a

Where a military judge conducts a proper balancing

test under Mil. R. Evid. 403, an appellate court will

not overturn the ruling absent a clear abuse of

discretion. United States v. Ediger, 68 M.J. 243, 248

(C.A.A.F. 2010) (citing United States v. Ruppel, 49

M.J. 247, 251 (C.A.A.F. 1998)). However, we “give[ ]

military judges less deference if they fail to articulate

their balancing analysis on the record, and no

deference if they fail to conduct the Rule 403

balancing.” United States v. Manns, 54 M.J. 164, 166

(C.A.A.F. 2000) (citation omitted).

Whether an accused has waived or merely forfeited

an issue is a question of law we review de novo. Ahern,

76 M.J. at 197 (citation omitted). “Whereas forfeiture

is the failure to make the timely assertion of a right,

waiver is the intentional relinquishment or

abandonment of a known right.” Id. (quoting Gladue,

67 M.J. at 313). When “an appellant has forfeited a

right by failing to raise it at trial, we review for plain

error.” Lopez, 76 M.J. at 154 (quoting Gladue, 67 M.J.

at 313). To prevail under a plain error analysis, an

appellant must show “(1) there was an error; (2) it was

plain or obvious; and (3) the error materially

prejudiced a substantial right.” Erickson, 65 M.J. at

223 (citations omitted).

3. Analysis

Appellant argues the military judge erred by

admitting the witness testimony and permitting the

114a

audio recording to be played because: (1) the prior

statements did not precede JK’s motive to lie; and (2)

the prior statements were inconsistent with JK’s trial

testimony. Regarding JK’s recorded statements to

AFOSI, Appellant also asserts the military judge

abused his discretion by admitting the statements

“without first viewing the interview.” 22 We address

these arguments in turn.

a. Preceding JK’s Motive to Lie?

The military judge ruled three times on this issue.

Regarding the testimony of the two witnesses, the

military judge found the inference of a recent motive

to lie or be improperly influenced were raised by the

Defense’s cross-examination questions about JK

“going to Penn State” and “moving in with her

boyfriend, [CH].” For the audio of JK’s AFOSI

interview, the military judge found the Defense

elicited evidence that JK was impliedly influenced by

her “desire to live with [CH], to go to school at Penn

State near or with [CH], and to continue her

relationship that led to her being engaged to [CH].”

22 Appellant’s brief raises two more arguments regarding this

evidence: (1) the audio of the AFOSI interview was not proper

rebuttal evidence; and (2) the military judge provided no legal

support for his conclusion that JK’s interview was not a

statement. We find these two arguments warrant no further

discussion or relief. See Matias, 25 M.J. at 361.

115a

At trial and on appeal, Appellant asserts that JK’s

sole motive to lie about the allegations existed before

she made any statements at ND’s house or to AFOSI.

A summary of the Defense’s position is that JK lied

about the allegations from the beginning to get out of

Appellant’s house and away from his strict rules so JK

and CH could be together. We find the military judge

did not abuse his discretion in finding the Defense

implied a recent motive or improper influence.

The Defense’s cross-examination of JK was wide

ranging. It addressed not only JK’s motive to lie when

she lived with Appellant under his strict rules, but

also implied that JK was being improperly influenced

to lie under oath

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