Petition for Writ of Certiorari — Adam J. Sherman, Petitioner v. United States

Supreme Court briefFeb 26, 2026

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APPENDIX

TABLE OF CONTENTS

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Sherman, No.

25-0209/AF (Sep. 30, 2025) ................................. 1a

Air Force Court of Criminal Appeals

Opinion, United States v. Sherman,

No. ACM 40486 (May 12, 2025) .......................... 2a

Air Force Court of Criminal Appeals

Order, United States v. Sherman, No.

ACM 40486 (Oct. 24, 2024) ............................... 31a

Department of the Air Force Trial

Judiciary, DuBay Hearing – Findings

of Fact, United States v. Sherman

(Feb. 21, 2025) ................................................... 39a

Excerpt from Department of the Air Force

Trial Judiciary DuBay Hearing

Transcript, United States v. Sherman .............. 48a

1a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

USCA Dkt. No. 25-0209/AF

Crim.App. No. 40486

v.

ORDER DENYING PETITION

Adam J.

Sherman,

Appellant

On consideration of the petition for grant of review

of the decision of the United States Air Force Court of

Criminal Appeals, it is by the Court, this 30th day of

September, 2025,

ORDERED:

That the petition is hereby denied.

For the Court,

/s/

cc:

Malcolm H. Squires, Jr.

Clerk of the Court

The Judge Advocate General of the Air Force

Appellate Defense Counsel (Bruha)

Appellate Government Counsel (Payne)

2a

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 40486

________________________

UNITED STATES

Appellee

v.

Adam J. SHERMAN

Senior Airman (E-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 12 May 2025

________________________

Military Judge: Matthew P. Stoffel (arraignment

and pretrial motions); Elijah F. Brown (trial);

Nathan R. Allred (post-trial hearing).

Sentence: Sentence adjudged 16 March 2023 by

GCM convened at Beale Air Force Base,

California. Sentence entered by military judge on

23 May

2023:

Dishonorable

discharge,

confinement for 13 years, reduction to E-1, and a

reprimand.

For Appellant: Major Heather M. Bruha, USAF;

Frank J. Spinner, Esquire.

For Appellee: Colonel Steven R. Kaufman, USAF;

Lieutenant Colonel Thomas J. Alford, USAF;

3a

Lieutenant Colonel J. Peter Ferrell, USAF; Major

Jocelyn Q. Wright, USAF; Captain Heather H.

Bezold, USAF; Mary Ellen Payne, Esquire.

Before RICHARDSON, MASON, and KEARLEY,

Appellate Military Judges.

Senior Judge RICHARDSON delivered the opinion of

the court, in which Judge MASON and Judge

KEARLEY joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4.

________________________

RICHARDSON, Senior Judge:

A military judge sitting as a general court-martial

convicted Appellant, contrary to his pleas, of one

specification of rape of a child in 2019 in violation of

Article 120b, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 920b.1,2 The military judge

sentenced Appellant to a dishonorable discharge,

confinement for 13 years, reduction to the grade of E1, and a reprimand.3

Unless otherwise noted, all references to the UCMJ, the

Military Rules of Evidence (Mil. R. Evid.), and the Rules for

Courts-Martial are to the Manual for Courts-Martial, United

States (2019 ed.).

1

2 Appellant was acquitted of one specification of sexual abuse of

the same child in violation of Article 120b, UCMJ, 10 U.S.C.

§ 920b.

Appellant requested deferment and waiver of forfeitures to

support his wife and children. The convening authority granted

these requests.

3

4a

Appellant raises four assignments of error: (1)

whether the finding of guilty is legally and factually

insufficient; (2) whether the sentence to confinement

is inappropriately severe; (3) whether relief is

warranted because Appellant did not understand he

had an opportunity to rebut post-trial victim matters

prior to the convening authority’s decision on action;

and (4) whether trial defense counsel were ineffective

when they “inexplicably failed to present favorable

evidence at trial.”4 Also, though not raised as an

assignment of error, we consider: (5) whether

Appellant is entitled to relief for facially unreasonable

appellate delay in accordance with United States v.

Moreno, 63 M.J. 129 (C.A.A.F. 2006), or in the

alternative, Article 66(d)(2). UCMJ, 10 U.S.C.

§ 866(d)(2).

We have carefully considered issue (3) and find it

does not require discussion or relief. See United States

v. Guinn, 81 M.J. 195, 204 (C.A.A.F. 2021) (citing

United States v. Matias, 25 M.J. 356, 361 (C.M.A.

1987)).

As to the remaining issues, we find no error that

materially prejudiced Appellant’s substantial rights.

4 Appellant initially raised issue (4) pursuant to United States v.

Grostefon, 12 M.J. 431 (C.M.A. 1982). Appellate defense counsel

personally argued issue (4) in their reply brief.

5a

I. BACKGROUND

EM testified about three instances when Appellant

sexually abused her. Appellant was found guilty of the

second instance of sexual abuse; the first and third

instances were not charged.5 At the time of trial, EM

was in sixth grade and still younger than 12 years.

EM lived with her father in Pennsylvania; her

parents were divorced. EM’s mother, AS, was married

to Appellant. AS and Appellant lived near EM in

Pennsylvania, then moved to California in 2018. The

summer of 2018, Appellant and AS lived in base

housing. Over the summer school break in 2019, EM

stayed with AS, Appellant, and their three children in

their home, a camper. In 2020, EM stayed with them

not over the summer school break, but from August to

October when she was enrolled in school online.

The first instance of sexual abuse EM detailed

happened when she was around six years old, when

Appellant and AS lived in Pennsylvania. Appellant

told EM to get into the bed. Appellant rubbed some

creamy substance “on [her] private area and with his

mouth licked it.” He also “touched [EM’s] private area

with his male part.” Appellant and EM were

unclothed from the waist down. Appellant told EM not

to tell anybody, that it was their “secret.”

The second instance EM described was over a

summer when EM visited AS and Appellant in

California. For around ten days during this time, the

5 The first instance was admitted pursuant to Mil. R. Evid. 414.

It appears the Government charged the other instances as

occurring in 2018 and 2019, but the evidence showed they

occurred in 2019 and 2020. Appellant was found guilty of the

specification with the time frame of “between on or about

1 January 2019 and on or about 31 December 2019.”

6a

family was vacationing at campgrounds in California;

the other days they lived at a local campground. EM

estimated she was seven or eight years old. One day

in the camper, while her siblings were asleep and AS

was out, Appellant asked, “Do you want to do our little

secret?” Appellant removed EM’s clothes from the

waist down. Appellant got above6 EM and “put his

male parts in [EM’s] lady private parts.” EM was

confused about what was happening. “It didn’t really

hurt, but it was just a very, like, weird feeling.”

The third instance happened on a later visit to

California. Appellant called EM into his bedroom and

told her to remove her bottoms. He “began to touch

[EM’s vaginal area] with his male private parts and

his hands,” including putting his “boy part inside” EM.

Appellant’s mother entered the camper—but not the

bedroom—briefly to drop something off, then left.

Appellant told EM to put her clothes back on, and

Appellant dressed himself.

EM clarified that both times in California,

Appellant put his penis “more on the inside” of her

vaginal canal than the outside, and that he did not

ejaculate. EM testified her “eyes were probably closed

for a majority of the time.” After one of the instances

in California, Appellant told EM not to tell anybody or

she would not be able to go back to Pennsylvania to

her dad.

Back in Pennsylvania, probably after the 2020

visit, EM and her father talked about her visit. She

told her father that Appellant argued with her mother

and yelled at the kids. EM’s father asked whether

6 EM described Appellant as “crawling ” and that “he got lower

as he went.”

7a

Appellant ever hit or abused EM out of anger, and she

said no. EM’s father told EM that as long as she was

safe out there, she would be going back the next

summer.7 Generally, EM looked forward to visiting

her mother and siblings in California, but not

Appellant.

Around February 2021, EM told her best friend XK

what Appellant had done to her, but doubted XK “fully

understood what [EM] told her.”8 XK thought EM

used the word “rape.” A few weeks later, at XK’s

bidding, EM told XK’s stepmother CA, who, a couple

months later, told EM’s father and, in more detail,

EM’s stepmother. Within the month, EM underwent a

child forensic interview and pediatric sexual assault

examination—she was nine years old.

II. DISCUSSION

A. Legal and Factual Sufficiency

Appellant claims the Government did not prove all

the elements beyond a reasonable doubt. Asserting a

lack of legal sufficiency and factual sufficiency,

Appellant focuses on the date and location of the

sexual act. Additionally, for factual sufficiency,

Appellant focuses on the believability of EM and her

description of events.

1. Additional Background

CA was the first adult EM told about the abuse.

CA testified about EM’s demeanor: “You could see that

EM’s father thought he made the comments after her last

return from California in October 2020.

7

EM was not sure whether she told her best friend about

Appellant’s actions before or after her father made the comment

about safety.

8

8a

she was upset. Her eyes were like glassed over. You

could see that she was like getting teary-eyed and she

was just pale.” EM said to CA, “[Appellant] made me

have sex.” EM did not provide CA details; “[a]t that

point [EM] broke down.” Later, CA noticed “sex” and

“what is sex” in XK’s tablet history from February

2021.

EM’s father testified about EM’s bittersweet

feelings towards her summers in California.

She always desired to go to California

to see her siblings because that was the

one time of the year that she got to see

them. And the same thing, she always

desired, you know, to see her mom, and

even the dog that was out there as well.

Again, she always wanted to go, but the

apprehension came at [Appellant’s] . . . .

In response to questioning from trial defense

counsel, EM’s father stated, “There are still signs of

trauma very frequently that occur with [EM]. So, I

would say there are still long-lasting bits of trauma. I

would say she’s doing much better, but to say that

there’s no trauma would be absolutely false.”

EM’s stepmother testified about EM and

Appellant. She remembered that in Pennsylvania

when EM was around four years old, EM did not want

to be dropped for visitation at AS’s house when AS was

not home but Appellant was. EM did not tell her

stepmother why she was “scared” of Appellant. She

also remembered that EM went to California in the

summer of 2018, the summer of 2019, and the fall of

2020.

Dr. KM testified as an expert in the field of sexual

assault forensic examination, as well as about her

9a

examination of EM. She found no physical evidence of

sexual assault. She described the sensation from a

touch to the hymen as “uncomfortable” to “painful,”

and that the hymen will repair itself, with no scar. She

generalized that, “kids don’t understand what inside

means.” She noted that a penis that is “not completely

erect or hard . . . [is] not causing as much injury as an

erect penis would.”

AS testified for the Defense. She confirmed that

EM visited them over the summer of 2019 when they

lived in the camper. She claimed she “never” left

Appellant alone with EM during any of the California

visits, but conceded during these visits they may have

been alone when she showered and slept. EM’s father

testified that he believed AS to be untruthful.

2. Law

“Under Article 66(d), UCMJ, [10 U.S.C. § 866(d),]

the Court of Criminal Appeals conducts a de novo

review of the record for legal sufficiency, factual

sufficiency, and sentence appropriateness.” United

States v. McAlhaney, 83 M.J. 164, 166 (C.A.A.F. 2020)

(citation omitted). “Our assessment of legal and

factual sufficiency is limited to the evidence produced

at trial.” United States v. Rodela, 82 M.J. 521, 525

(A.F. Ct. Crim. App. 2021) (citation omitted), rev.

denied, 82 M.J. 312 (C.A.A.F. 2022).

“The test for legal sufficiency is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” United States v. Robinson, 77 M.J.

294, 297–98 (C.A.A.F. 2018) (citation omitted). “[T]he

term ‘reasonable doubt’ does not mean that the

evidence must be free from any conflict . . . .” United

10a

States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)

(citation omitted). In resolving questions of legal

sufficiency, we are “bound to draw every reasonable

inference from the evidence of record in favor of the

prosecution.” United States v. Bright, 66 M.J. 359, 365

(C.A.A.F. 2008) (internal quotation marks and

citations omitted). The evidence supporting a

conviction can be direct or circumstantial. See United

States v. Long, 81 M.J. 362, 368 (C.A.A.F. 2021) (citing

Rule for Courts-Martial 918(c)) (additional citation

omitted). “[A] rational factfinder[ ] could use his

‘experience with people and events in weighing the

probabilities’ to infer beyond a reasonable doubt” that

an element was proven. Id. at 369 (quoting Holland v.

United States, 348 U.S. 121, 140 (1954)). The

“standard for legal sufficiency involves a very low

threshold to sustain a conviction.” King, 78 M.J. at 221

(internal quotation marks and citation omitted).

For this case, “[t]he 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 guilt beyond a reasonable doubt.’”

Rodela, 82 M.J. at 525 (second alteration in original)

(quoting United States v. Turner, 25 M.J. 324, 325

(C.M.A. 1987)). “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.’” United States v. Wheeler, 76 M.J. 564, 568

(A.F. Ct. Crim. App. 2017) (alteration in original)

(quoting Washington, 57 M.J. at 399), aff’d, 77 M.J.

289 (C.A.A.F. 2018).

11a

To convict Appellant of rape of a child, the

Government was required to prove the following

elements beyond a reasonable doubt: (1) that

Appellant committed a sexual act upon EM; and (2)

that, at the time of the sexual act, EM had not

attained the age of 12 years. See 10 U.S.C.

§ 920b.(a)(1); Manual for Courts-Martial, United

States (2019 ed.) (MCM), pt. IV, ¶ 62.b.(1). For the

alleged “sexual act,” the Government had to prove

Appellant intentionally touched, not through the

clothing, EM’s genitalia with the intent to gratify his

own sexual desire. See 10 U.S.C. § 920b.(h)(1); MCM,

pt. IV, ¶ 62.a.(h)(1).

3. Analysis

We start first with Appellant’s legal and factual

sufficiency claims relating to the date and location of

the offense. We agree that EM did not appear to “know

what years the two instances in California happened.”

Appellant asserted, “After being pressed, [EM] said

the first of two instances of sexual abuse occurring in

California happened in a camper the first or second

summer she was visiting.” Indeed, the first instance of

abuse in California was the summer of 2019. This was

the second summer EM visited California, but the

first summer visit where they stayed in the camper. A

review of the evidence in the light most favorable to

the Government makes clear that one instance of

sexual abuse was in California in 2019—as alleged in

Specification 2 of the Charge.

Next, we address Appellant’s arguments for

factual insufficiency. First, “the way [EM] described

the alleged sexual assault does not follow common

sense or the testimony of Dr. [KM].” We disagree. EM

described Appellant getting above her before putting

12a

his penis into her vaginal area. That EM did not notice

Appellant using any lubrication and did not feel pain

is not inconsistent with the expert testimony

presented, or common sense. As a young child, EM

may not have understood how far “inside” her body

Appellant could have gone. EM’s description is

consistent with shallow or flaccid penetration and no

ejaculation.

We reject Appellant’s other arguments. Appellant

asserts “zero signs of grooming,” which ignores

testimony that EM’s reluctance to be alone with

Appellant started when she was in Pennsylvania, as

well as EM’s testimony that his abuse of her started

in Pennsylvania. Appellant asserts EM lied so she

would not have to live in a camper in California, but

our review of the evidence shows EM still wanted to

visit her mother and siblings in California. Appellant

suggests that XK researched sex to help EM make a

credible claim of sexual abuse. Instead, we can

interpret this evidence to show two pre-pubescent

girls trying to understand and put words to what EM

experienced as a result of Appellant’s actions.

Viewing the evidence produced at trial in the light

most favorable to the Prosecution, we conclude a

rational trier of fact could have found the essential

elements of the convicted offense beyond a reasonable

doubt. See Robinson, 77 M.J. at 297−98. Furthermore,

after weighing the evidence in the record of trial and

making allowances for not having personally observed

the witnesses, we ourselves are convinced of

Appellant’s guilt beyond a reasonable doubt. See

Rodela, 82 M.J. at 525.

13a

B. Sentence Severity

Appellant contends that the sentence to “13 years’

confinement—on top of a dishonorable discharge and

[Appellant’s] requirement to register as a sex

offender—is inappropriately severe.” Considering this

Appellant and his offenses, we disagree.

1. Additional Background

In the presentencing proceedings, the Government

presented a personal data sheet, six performance

reports, three letters of counseling, and two letters of

reprimand. EM presented a written unsworn

statement.

Appellant

presented

an

Army

Achievement Medal, four character letters, a photo

presentation, and a written unsworn statement. No

one testified in presentencing.

The Government argued the military judge should

sentence Appellant to the mandatory dishonorable

discharge, plus reduction to the grade of E-1 and “at

least 20 years of confinement.” Trial defense counsel

argued for “an appropriate amount of confinement, no

forfeitures, no reduction, and the mandatory

dishonorable discharge.” Trial defense counsel posited

than an “appropriate” amount of confinement is that

amount that would punish but also allow

rehabilitation for reentrance as a productive member

of society.

The military judge adjudged a dishonorable

discharge, confinement for 13 years, reduction to the

grade of E-1, and a reprimand.

2. Law

We review issues of sentence appropriateness de

novo. McAlhaney, 83 M.J. at 167 (citing United States

v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006)). Our authority

14a

“reflects the unique history and attributes of the

military justice system, [and] includes . . .

considerations of uniformity and evenhandedness of

sentencing decisions.” United States v. Sothen, 54 M.J.

294, 296 (C.A.A.F. 2001) (citations omitted). We may

affirm only as much of the sentence as we find correct

in law and fact. Article 66(d), UCMJ. In reviewing a

judge-alone sentencing, we “must consider the

appropriateness of each segment of a segmented

sentence and the appropriateness of the sentence as a

whole.” United States v. Flores, 84 M.J. 277, 278

(C.A.A.F. 2024).

“We assess sentence appropriateness by

considering the particular appellant, the nature and

seriousness of the offense[s], the appellant’s record of

service, and all matters contained in the record of

trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F.

Ct. Crim. App. 2015) (en banc) (per curiam) (alteration

in original) (citation omitted). Although the Courts of

Criminal Appeals are empowered to “‘do justice[ ]’

with reference to some legal standard,” we are not

authorized to grant mercy. United States v. Guinn, 81

M.J. 195, 203 (C.A.A.F. 2021) (quoting United States

v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010)). In the

end, “[t]he purpose of Article 66[ ], UCMJ, is to ensure

‘that justice is done and that the accused gets the

punishment he deserves.’” United States v. Sanchez,

50 M.J. 506, 512 (A.F. Ct. Crim. App. 1999) (quoting

United States v. Healy, 26 M.J. 394, 395 (C.M.A.

1988)).

The maximum punishment authorized for rape of

a child includes, inter alia, confinement for life

without eligibility for parole and forfeiture of all pay

and allowances. See MCM, pt. IV, ¶ 62.d.(1). A

dishonorable discharge is mandatory. Id. Article 58b,

15a

UCMJ, 10 U.S.C. § 858b, requires automatic

forfeiture of all pay and allowances during a period of

confinement when the sentence to confinement at a

general court-martial is over six months.

A requirement to register as a sex offender is a

collateral consequence of the conviction. United States

v. Palacios Cueto, 82 M.J. 323, 327 (C.A.A.F. 2022)

(quoting United States v. Talkington, 73 M.J. 212, 213

(C.A.A.F. 2014)). “The general rule concerning

collateral consequences is that ‘courts-martial [are] to

concern themselves with the appropriateness of a

particular sentence for an accused and his offense,

without regard to the collateral administrative effects

of the penalty under consideration.’” Id. (alteration in

original) (quoting United States v. Griffin, 25 M.J.

423, 424 (C.M.A. 1988)).

3. Analysis

Echoing Sothen, 54 M.J. at 296, “In maintaining

uniformity and even-handedness, [Appellant] asks

this Court to rely on the judges’ experience distilled

from years of practice in military law to determine 13

years’ confinement in this case is inappropriately

severe and to reassess the sentence.” Using our

experience, we disagree; Appellant’s sentence is not

inappropriately severe. In making this determination,

we apply the general rule that we do not consider the

collateral consequence of sex-offender registration as

an aspect of the adjudged sentence. See Palacios

Cueto, 82 M.J. at 327.

In support of his position, Appellant cites much of

the same evidence he offered during his sentence

hearing. After conducting a thorough review of the

entire record, specifically considering the Appellant,

the nature and seriousness of the offense, Appellant’s

16a

record of service, and all matters contained in the

record of trial, we find Appellant’s sentence is not

inappropriately severe.

C. Ineffective Assistance of Counsel

Appellant personally contends his trial defense

counsel should have called AC, a family friend of

Appellant and AS, as a defense witness. Specifically,

Appellant contends his trial defense counsel should

have followed up on an entry in the Air Force Office of

Special Investigations’ (OSI) report of investigation

(ROI) where AC claims to have heard a motive for EM

to lie.

Additionally, both Appellant and his appellate

defense counsel contend trial defense counsel should

have elicited testimony from AS about Appellant’s

busy work schedule at the time of the allegations.

Appellate defense counsel also assert trial defense

counsel

should

have

retrieved

Appellant’s

employment records.

Appellant submitted a declaration from AS in

support of his claim regarding his employment

history. Based on Appellant’s allegations, trial

defense counsel—Major (Maj) NA and Captain (Capt)

MG—each submitted a declaration. We consider the

declarations submitted by AS and trial defense

counsel in addressing Appellant’s claims on this issue.

See United States v. Jessie, 79 M.J. 437, 442 (C.A.A.F.

2020). We determined a post-trial evidentiary hearing

was required to resolve any factual disputes between

AS’s assertions and trial defense counsel’s assertions.

See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.

1997); United States v. DuBay, 37 C.M.R. 411, 413

(C.M.A. 1967); Article 66(f)(3), UCMJ, 10 U.S.C.

§ 866(f)(3). In our order directing the post-trial

17a

hearing, we stated, “Appellant may file a brief

addressing the military judge’s findings of fact,” and

authorized the Government to respond to any such

brief. After the hearing, Appellant and the

Government each submitted a brief. We do not

address matters in the briefs that go beyond the scope

of our order to the military judge and his findings of

fact thereon.

We find Appellant has not overcome

presumption of competent defense counsel.

the

1. Law

The Sixth Amendment9 guarantees an accused the

right to effective assistance of counsel. United States

v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). We review

allegations of ineffective assistance de novo. United

States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011)

(citing United States v. Mazza, 67 M.J. 470, 474

(C.A.A.F. 2009)). In assessing the effectiveness of

counsel, we apply the standard set forth in Strickland

v. Washington, 466 U.S. 668, 687 (1984), and begin

with the presumption of competence announced in

United States v. Cronic, 466 U.S. 648, 658 (1984). See

Gilley, 56 M.J. at 124 (citation omitted).

The burden is on the appellant to demonstrate

both deficient performance and prejudice. United

States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012)

(citation omitted). “In determining whether an

attorney’s conduct was deficient we do not simply ask

whether the attorney did everything possible that

posed little or no risk to the client.” Palacios Cueto, 82

M.J. at 329. “[C]ourts ‘must indulge a strong

presumption that counsel’s conduct falls within the

9 U.S. CONST. amend. VI.

18a

wide range of reasonable professional assistance.’”

Datavs, 71 M.J. at 424 (quoting Strickland, 466 U.S.

at 689) (additional citation omitted). We consider the

following questions to determine whether the

presumption of competence has been overcome: (1) is

there a reasonable explanation for counsel’s actions;

(2) did defense counsel’s level of advocacy fall

measurably below the performance ordinarily

expected of fallible lawyers; and (3) if defense counsel

were ineffective, is there a reasonable probability

that, absent the errors, there would have been a

different result. United States v. Palik, 84 M.J. 284,

289 (C.A.A.F. 2024) (citing Gooch, 69 M.J. at 362).

When considering the last question, “some conceivable

effect on the outcome” is not enough; instead, an

appellant must show a “probability sufficient to

undermine confidence in the outcome.” Datavs, 71

M.J. at 424 (internal quotation marks and citations

omitted).

“[O]ur scrutiny of a trial defense counsel’s

performance is ‘highly deferential,’ and we make

‘every effort . . . to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate conduct

from counsel’s perspective at the time.’” United States

v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (omission

in original) (quoting Strickland, 466 U.S. at 689). The

burden is on the appellant to identify specific

unreasonable errors made by his or her defense

counsel. United States v. Brownfield, 52 M.J. 40, 42

(C.A.A.F. 1999) (citing Strickland, 466 U.S. at 689).

We will not second-guess reasonable strategic or

tactical decisions by trial defense counsel. Mazza, 67

M.J. at 475 (citation omitted). “Defense counsel do not

perform deficiently when they make a strategic

19a

decision to accept a risk or forego a potential benefit,

where it is objectively reasonable to do so.” Datavs, 71

M.J. at 424 (citations omitted). Counsel’s advice to an

accused, or counsel’s “strategic” or “tactical” decision

that is unreasonable, or based on inadequate

investigation, can provide the foundation for a finding

of ineffective assistance. See Davis, 60 M.J. at 474–75.

2. Additional Background and Analysis

a. Witness AC

During its investigation, OSI interviewed AC. This

excerpt appears in OSI’s summary of AC’s statement:

[AC] overheard [AC’s son] ask [EM] about

the allegations against [Appellant]. [AC]

questioned if [EM] said the allegation to

avoid traveling to [California (CA)] and

[EM] replied her “friend” [no further

information] told [EM] if she went to CA

for the summer they would not be able to

be together during the summer. [EM]

then began to backtrack and deflect

[AC’s] questions.

AC testified on the defense motion to exclude Mil.

R. Evid. 404(b) evidence. She testified about her

relationship with Appellant, AS, and their children,

and about Appellant’s interactions with her children

and AS’s children. AC was not called as a witness on

the merits or in pre-sentencing; however, AC provided

a character letter for Appellant.

Through several witnesses, the Defense elicited

testimony suggesting EM wanted to avoid going to

California and, to that end, concocted the allegations

against Appellant. For example, they brought out the

following: when EM was in California over the

20a

summer, she would be away from her best friend XK

in Pennsylvania; the camper was hot and cramped,

whereas EM had her own bedroom at home; in

California EM had only one friend her own age, whom

she saw sporadically, and had some responsibility for

her young siblings; and Appellant and AS’s parenting

style was stricter than EM’s father’s.

In his brief to the court, Appellant claims that

[w]ith respect to [AC], defense counsel

had a clear duty to interview [AC] about

the OSI ROI entry summarizing [AC’s]

interview in which she spoke to [EM]

about [EM’s] reason for not wanting to

visit California during the summer. This

would have further substantiated EM’s

motive to come up with a sexual assault

claim in order to avoid any future

potential visit to California.

In her declaration to this court, Capt MG indicates

she interviewed AC twice before trial, the second time

also with Maj NA. Capt MG said both interviews

yielded the same information.

[W]hen the Defense asked about whether

[EM] ever disclosed to [AC] whether she

either disliked visiting California or

didn’t want to spend her summers there,

the Defense was provided with evidence

to the contrary. In particular, [AC]

informed the Defense that in her last

conversation with [EM] in 2021, [EM]

had expressed excitement and a strong

desire to come back out to California in

21a

order to see her half-siblings and always

seemed happy visiting the Shermans.[10]

The fact that EM wanted to return to California

cuts both ways: EM wanted to go back to California,

not avoid it, but it would mean going back to a person

who sexually assaulted her. We find trial defense

counsel provided a reasonable explanation for not

presenting testimony from AC about whether EM

desired to go to California. Moreover, we see no

reasonable probability that, absent the claimed error,

there would have been a different result. Palik, 84

M.J. at 289. The presumption of competence has not

been overcome. Id.

b. Witness AS

Appellant’s wife, AS, testified about how EM was

never alone with Appellant. On direct examination by

trial defense counsel, AS testified that she was “a

stay-at-home mom” in 2018 and 2019. Additionally,

Appellant’s mother, NS, usually would accompany

EM on her visits to California. AS agreed NS was a

“constant presence” and the adult with whom she

would leave the children when AS left the home

without them.

Appellant asserts trial defense counsel should

have examined AS during trial about Appellant’s

“limited opportunities . . . over a 39-day period in

which he could have engaged in a sexual assault upon

[EM].” Appellate defense counsel argue: “From her

personal knowledge, [AS] could have testified in detail

about [Appellant’s] Air Force and civilian work

schedules had she been appropriately prepared by

Maj NA’s declaration uses these same words, only with

different emphasis.

10

22a

trial defense counsel. It would have been counsel’s

decision whether to offer corroborating evidence in the

form of documents or text messages.”

In her declaration to this court, AS states EM

visited them for 39 days in the summer of 2019. “Had

I been asked by the defense counsel I could have

supplied very detailed information covering our

family activities every day during that period,

including documents and records that would have

objectively corroborated my testimony.” Appellant did

not submit these documents or records, and AS does

not further describe them. AS also states:

I also could have supplied details about

[Appellant’s] work schedules in the Air

Force and at [F] Motors, his off-duty

civilian employment. I have records that

would have corroborated my testimony.

His work hours from 27 July to 13 August

typically ran from the morning at [F],

followed by reporting to Beale AFB at 2:30

pm and working late into the evening.

AS did not assert in her declaration that she ever

told trial defense counsel that Appellant worked for F

Motors. She ends her declaration:

I cannot explain why the defense counsel

did not seek this more detailed

information and records. It would have

been extremely easy to sit down with them

and a calendar to go over every day of the

39-day period. I could have accounted for

our daily activities with photographs, text

messages, receipts and other documents

that demonstrated what campgrounds we

were in, how long it would have taken

23a

[Appellant] to travel to and from his work

locations and timing.

AS did not assert she told trial defense counsel that

she had such a calendar. In summary, AS contends

that she had detailed documentation showing

Appellant was not at the camper with EM at the time

of the sexual assaults, and Appellant’s trial defense

counsel should have asked her for it.

Both Maj NA and Capt MG wrote at length in their

declarations about their efforts to gather favorable

evidence from Appellant and AS. They detail the

times they asked Appellant and AS to provide them

any evidence relating to the issues in the case. Capt

MG stated:

I even asked them to make a timeline

showing when [EM] was visiting and when

[AS] and [NS] were present as well as

[Appellant’s] work schedule at the time of

[EM’s] visits, in order to show when

[Appellant] would (or more importantly

would not have) had the opportunity to

commit[ ] the alleged offenses. Both Maj

[NA] and I repeatedly requested such

evidence, whether as testimony from [AS],

or documentary evidence. We never

received any of that.

Maj NA summarized the Defense’s efforts to get

favorable evidence from Appellant and NS:

From the very beginning of our

representation

of

[Appellant],

we

requested that he and his wife provide us

with any and all evidence that could’ve

possibly existed that would’ve supported

his claim of innocence at trial. Based on

24a

these conversations and the responsive

documents and information provided to us,

the Sherman’s [sic] clearly understood this

tasker and were ultimately the primary

source of the evidence that the Defense

utilized at trial. Stated differently, there

was never any objective indicators to

either myself [or] Capt [MG] that the

Sherman’s [sic] were in possession of the

additional evidence that [AS] now claims

was so readily available. While it is

undisputed that Capt [MG] and I had a

duty to investigate in preparation for trial,

that duty does not require either of us to

be clairvoyant about evidence that

would’ve corroborated [AS’s] testimony,

especially when we had no objective

indication that said evidence existed, if it

exists as [AS] now maintains at all.

(Footnote omitted).

The military judge who conducted the fact-finding

hearing this court ordered pursuant to DuBay and

Article 66(f)(3), UCMJ, issued a five-page “DuBay

Hearing - Findings of Fact” (Findings of Fact). The

military judge found that Appellant’s area defense

counsel asked Appellant to provide “evidence that

might be helpful in his case,” “even if he did not think

it was a big thing,” and Appellant’s senior defense

counsel asked Appellant to provide “everything he

possibly could related to the case.” The military judge

found that “[t]rial defense counsel had similar

conversations with [AS] about the Appellant’s case.”

As to what was requested and provided, the

military judge found: “Trial defense counsel asked

25a

[AS] for information about the daily interactions

between the Appellant and EM” and discussed “EM’s

biological father . . . and [Appellant and AS’s] other

children.” “Appellant and/or [AS] provided a bill of

sale for their camper, a video showing the layout of

their camper, [AS’s] Air Force enlistment contract, a

binder[11] of documents related to EM and her trip to

California, and the cell phone EM used when visiting

California.” (Footnotes omitted).

Regarding Appellant’s employment, the military

judge found: “Trial defense counsel asked the

Appellant about his work schedule during the time

period EM was visiting, to include asking about his

employment at [F] Motors.” “The Appellant told trial

defense counsel that, during the time EM was visiting,

he worked at [F] Motors in addition to being in the Air

Force. The Appellant provided trial defense counsel

the names of his employers at [F] Motors – Mr. and

Ms. [M]. Appellant did not provide trial defense

counsel with his work schedule.” (Footnote omitted).

“Trial defense counsel and [AS] also discussed the

places where the Appellant was employed. [AS]

responded to questions she was asked but did not offer

additional information about the Appellant’s schedule

or whereabouts.”

The military judge found that AS met with trial

defense counsel “on several occasions” to discuss

Appellant’s case. AS had their contact information.

11 The military judge found: “Trial defense counsel was also in

receipt of a binder with over one hundred pages of information

related to flight itineraries for EM’s trip to California, campsite

reservations for the summer of 2019, pictures, and copies of

various text message conversations related to EM.” (Footnote

omitted).

26a

“Trial defense counsel never refused to talk to [AS].”

“Trial defense counsel accepted every piece of evidence

[AS] offered them; trial defense counsel never refused

any offer of evidence from [AS].”

Appellant has not demonstrated deficient

performance of counsel regarding AS and Appellant’s

employment at F Motors. In her declaration, AS

blames trial defense counsel for not getting from her

“records” and “details about [Appellant’s] work

schedules in the Air Force and at [F] Motors, his offduty civilian employment.” However, trial defense

counsel asked both Appellant and AS for any evidence

that might help Appellant’s case, and specifically

asked Appellant about his employment at F Motors

and asked AS about Appellant’s places of employment.

Appellant did not provide his trial defense counsel

with his work schedule from F Motors. Appellant

claims his trial defense counsel should have retrieved

Appellant’s employment records, and failure to do so

was deficient performance. From our review of the

record, however, it appears Appellant’s trial defense

counsel asked Mr. and Mrs. M about Appellant’s

employment history, but they did not—and perhaps

could not—provide records. Even if we found deficient

performance, we find no prejudice.

To determine prejudice, we ask whether, absent

the claimed error, there is a reasonable probability

that there would have been a different result. See

Palik, 84 M.J. at 289. Even after a fact-finding

hearing, the record provides no indication that

Appellant’s work schedule at F Motors would have

provided an alibi defense or otherwise tended to show

Appellant could not have committed the charged

offense. The record shows that over several days in the

summer of 2019, Appellant and his family were

27a

together, vacationing in the camper, with NS nearby,

which is consistent with EM’s memory of the rape.

Appellant has not shown a “probability sufficient to

undermine confidence in the outcome.” Datavs, 71

M.J. at 424 (internal quotation marks and citations

omitted).

D. Timeliness of Appellate Review

1. Law

“[C]onvicted service members have a due process

right to timely review and appeal of courts-martial

convictions.” Moreno, 63 M.J. at 135 (citing United

States v. Toohey, 60 M.J. 100, 101 (C.A.A.F. 2004);

Diaz v. Judge Advocate General of the Navy, 59 M.J.

34, 37–38 (C.A.A.F. 2003)). Whether an appellant has

been deprived of his due process right to speedy posttrial and appellate review, and whether constitutional

error is harmless beyond a reasonable doubt, are

questions of law we review de novo. United States v.

Prasad, 80 M.J. 23, 29 (C.A.A.F. 2020) (citation

omitted); United States v. Arriaga, 70 M.J. 51, 56

(C.A.A.F. 2011) (citing Moreno, 63 M.J. at 135).

A presumption of unreasonable delay arises when

appellate review is not completed, and a decision is

not rendered within 18 months of the case being

docketed. Moreno, 63 M.J. at 142. A presumptively

unreasonable delay triggers an analysis of the four

factors set forth in Barker v. Wingo, 407 U.S. 514, 530

(1972): “(1) the length of the delay; (2) the reasons for

the delay; (3) the appellant’s assertion of the right to

timely review and appeal; and (4) prejudice.” Moreno,

63 M.J. at 135 (additional citations omitted). Moreno

adopted three types of prejudice arising from posttrial processing delay: (1) oppressive incarceration; (2)

anxiety and concern; and (3) impairment of a

28a

convicted person’s grounds for appeal and ability to

present a defense at a rehearing. Id. at 138–39

(citations omitted).

“We analyze each factor and make a determination

as to whether that factor favors the Government or

the appellant.” Id. at 136 (citation omitted). Then, we

balance our analysis of the factors to determine

whether a due process violation occurred. Id. (citing

Barker, 407 U.S. at 533 (“Courts must still engage in

a difficult and sensitive balancing process.”)). “No

single factor is required for finding a due process

violation and the absence of a given factor will not

prevent such a finding.” Id. (citation omitted).

However, where an appellant has not shown prejudice

from the delay, there is no due process violation unless

the delay is so egregious as to “adversely affect the

public’s perception of the fairness and integrity of the

military justice system.” United States v. Toohey, 63

M.J. 353, 362 (C.A.A.F. 2006).

A Court of Criminal Appeals may provide

appropriate relief for excessive post-trial delay.

Article 66(d)(2), UCMJ. Appropriate relief is not

synonymous with meaningful relief. United States v.

Valentin-Andino, __ M.J. __, No. 24-0208, 2025 CAAF

LEXIS 248, at *7 (C.A.A.F. 31 Mar. 2025). “Although

it is within a Court of Criminal Appeals’ discretion to

place its reasoning about Article 66(d)(2) relief on the

record, it is not required to do so.” Id. (citing

Winckelmann, 73 M.J. at 16).

2. Procedural Background and Analysis

Appellant’s case was docketed with the court on

28 June 2023. The delay in rendering this decision

after 28 December 2024 is presumptively

unreasonable. The reasons for the delay include: the

29a

time required for Appellant to file his brief, which was

filed with this court on 24 June 2024; the time

required for the Government to obtain affidavits then

file its answer on 12 September 2024; the time

required to complete the fact-finding hearing ordered

on 24 October 2024, with findings of fact dated

24 February 2025; and the time required for both

parties to file their briefs regarding that hearing.12

Appellant has made no specific assertion of his right

to timely appellate review, nor claimed prejudice on

this issue, and we find none. Because we find no

particularized prejudice, and the delay is not so

egregious as to adversely affect the public’s perception

of the fairness and integrity of the military justice

system, we likewise find no due process violation. See

Toohey, 63 M.J. at 362.

We also conclude there is no basis for relief under

Article 66(d)(2), UCMJ, in the absence of a due process

violation. Considering all the facts and circumstances

of Appellant’s case, we decline to exercise our Article

66(d), UCMJ, 10 U.S.C. § 866(d), authority to grant

relief for the delay in completing appellate review.

III. CONCLUSION

The findings and the sentence are correct in law

and fact, and no error materially prejudicial to the

substantial rights of Appellant occurred. Articles

59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).

Accordingly, the findings and the sentence are

AFFIRMED.

Notably, Appellant filed for and was granted nine

enlargements of time permitting his appellate defense counsel a

full opportunity to review the case and submit Appellant’s brief.

12

30a

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

31a

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

Appellee

v.

Adam J. SHERMAN

Senior Airman (E-4)

U.S. Air Force

Appellant

)

)

)

)

)

)

)

)

)

No. ACM 40486

ORDER

Panel 2

A military judge sitting as a general court-martial

convicted Appellant, contrary to his pleas, of one

specification of rape of a child in violation of Article

120b, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 920b.1,2 The military judge sentenced

Appellant to a dishonorable discharge, confinement

for 13 years, reduction to the grade of E-1, and a

reprimand.

On 24 June 2024, Appellant submitted his

assignments of error brief which included, inter alia,

a claim that his trial defense counsel were ineffective

when they “inexplicably failed to present favorable

1 Unless otherwise noted, all references to the UCMJ, and the

Rules for Courts-Martial (R.C.M.) are to the Manual for CourtsMartial, United States (2019 ed.).

2 Appellant was acquitted of one specification of sexual abuse of

the same child in violation of Article 120b, UCMJ, 10 U.S.C. §

920b.

32a

evidence at trial.”3 On 12 September 2024, the

Government filed an answer to Appellant’s

assignments of error, and on 26 September 2024,

Appellant’s counsel filed a reply brief; both briefs

addressed this claimed error. In addition to the briefs,

the parties submitted declarations that addressed

Appellant’s complaint of ineffective assistance.4

I. BACKGROUND

Appellant was convicted of sexually abusing EM,

his stepdaughter. Appellant is married to EM’s

mother, AS. The offense of which Appellant was

convicted happened over the summer school break,

when EM was visiting AS, Appellant, and their

children at their home in a camper in California,

where Appellant was stationed.

In his claim of ineffective assistance of counsel,

Appellant asserts trial defense counsel should have

examined AS during trial about Appellant’s “limited

opportunities . . . over a 39-day period in which he

could have engaged in a sexual assault upon [EM].”

Appellate defense counsel argue: “From her personal

knowledge, [AS] could have testified in detail about

[Appellant’s] Air Force and civilian work schedules

had she been appropriately prepared by trial defense

counsel. It would have been counsel’s decision

3 Appellant initially raised this issue pursuant to United States

v. Grostefon, 12 M.J. 431 (C.M.A. 1992). Appellate defense

counsel personally argued this issue in their reply brief.

4 Appellant submitted a declaration from his wife, dated 23 June

2024. Appellant’s trial defense counsel, Major NA, submitted a

declaration dated 19 July 2024. Appellant’s other trial defense

counsel, Captain MG, submitted a declaration dated 5 August

2024. Appellant submitted his own declaration, but it related to

a different asserted error.

33a

whether to offer corroborating evidence in the form of

documents or text messages.”

In her declaration to this court, AS states EM

visited them for 39 days in the summer of 2019. “Had

I been asked by the defense counsel I could have

supplied very detailed information covering our

family activities every day during that period,

including documents and records that would have

objectively corroborated my testimony.” AS also

states:

I also could have supplied details about

[Appellant’s] work schedules in the Air

Force and at [FM] his off-duty civilian

employment. I have records that would

have corroborated my testimony. His work

hours from 27 July to 13 August [2019]

typically ran from the morning at [FM],

followed by reporting to Beale AFB at 2:30

pm and working late into the evening.

She ends her declaration:

I cannot explain why the defense counsel

did not seek this more detailed

information and records. It would have

been extremely easy to sit down with them

and a calendar to go over every day of the

39-day period. I could have accounted for

our daily activities with photographs, text

messages, receipts and other documents

that demonstrated what campgrounds we

were in, how long it would have taken

[Appellant] to travel to and from his work

locations and timing.

Both counsel for Appellant, Major (Maj) NA and

Captain (Capt) MG, wrote at length in their

34a

declarations about their efforts to gather favorable

evidence from Appellant and AS. They detail the

times they asked Appellant and AS to provide them

any evidence relating to the issues in the case. Capt

MG stated:

I even asked them to make a timeline

showing when [EM] was visiting and when

[AS] and [Appellant’s mother] were

present as well as [Appellant’s] work

schedule at the time of [EM’s] visits, in

order to show when [Appellant] would (or

more importantly would not have) had the

opportunity to commit the alleged

offenses. Both Maj [NA] and I repeatedly

requested such evidence, whether as

testimony from [AS], or documentary

evidence. We never received any of that.

Maj NA summarized the Defense’s efforts to get

favorable evidence from Appellant and NS:

From the very beginning of our

representation

of

[Appellant],

we

requested that he and his wife provide us

with any and all evidence that could’ve

possibly existed that would’ve supported

his claim of innocence at trial. Based on

these conversations and the responsive

documents and information provided to us,

the Sherman’s [sic] clearly understood this

tasker and were ultimately the primary

source of the evidence that the Defense

utilized at trial. Stated differently, there

was never any objective indicators to

either myself of Capt [MG] that the

Sherman’s [sic] were in possession of the

35a

additional evidence that [AS] now claims

was so readily available. While it is

undisputed that Capt [MG] and I had a

duty to investigate in preparation for trial,

that duty does not require either of us to

be clairvoyant about evidence that

would’ve corroborated [AS’s] testimony,

especially when we had no objective

indication that said evidence existed, if it

exists as [AS] now maintains at all.

(Footnote omitted.)

II. DISCUSSION

Upon careful review of the filings, record of trial,

and asserted error, we have found direct conflicts in

the declarations on issues material to the ineffective

assistance claim. We have determined that we cannot

decide the legal issue without further proceedings.

United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.

1997). Therefore, we order a post-trial fact-finding

hearing pursuant to United States v. DuBay, 37

C.M.R. 411 (C.M.A. 1967); see also Article 66(f)(3),

UCMJ, 10 U.S.C. § 866(f)(3) (authorizing Courts of

Criminal Appeals to “order a hearing as may be

necessary to address a substantial issue”).

Accordingly, it is by this court on this 24th day of

October 2024,

ORDERED:

The record of trial is returned to The Judge

Advocate General for referral to an appropriate

convening authority for the purpose of directing a

post-trial hearing in accordance with DuBay, 37

C.M.R. at 413, and Article 66(f)(3), UCMJ. A detailed

military judge conducting the hearing shall have

36a

broad authority to hear testimony, receive evidence,

and enter findings of fact concerning Appellant’s claim

that trial defense counsel failed to gather and present

favorable evidence relating to the whereabout of

Appellant and his family, described supra. Appellate

government counsel will ensure the military judge is

provided with copies of the record of trial, Appellant’s

brief and reply brief, the Government’s answer, AS’s

declaration, and the declarations of the trial defense

counsel.

At a minimum, the following questions will be

addressed during the hearing:

(1) Did trial defense counsel request from

Appellant and/or AS evidence or leads to evidence

relating to his case? Describe the circumstances of any

such requests.

(2) Did

trial defense counsel request from

Appellant and/or AS evidence or leads to evidence

specifically relating to Appellant’s whereabouts

during the time periods when EM was visiting at the

camper in California? Describe the circumstances of

any such requests.

(3) Did Appellant and/or AS offer to provide trial

defense counsel with evidence (to include, e.g., witness

contact

information,

employment

records,

photographs, text messages, receipts) or leads to

evidence relating to:

(a) Appellant’s whereabouts during the

timeperiods when EM was visiting at the camper in

California? Describe the circumstances of any such

offers; and

(b) the whereabouts of AS and/or her children

during the time periods when EM was visiting at the

37a

camper in California? Describe the circumstances of

any such offers.

The military judge may address other matters that

may arise during the fact-finding hearing that he or

she deems pertinent to the issues in question. The

military judge may also require the presence—

including via virtual means—of any witnesses deemed

necessary to address this matter. At the conclusion of

the hearing, the military judge will provide this court

with his or her written findings of fact.

We recognize the military judge has broad but not

unlimited authority over the control of the courtroom,

docketing, and rulings on continuances. See United

States v. Bowser, 73 M.J. 889, 896 (A.F. Ct. Crim. App.

2014) (citations omitted), aff’d, 74 M.J. 326 (C.A.A.F.

2015) (mem.). Allowing for such matters, we find four

months a sufficient period of time for the military

judge to hold the post-trial hearing and, after the

opportunity to review the transcript of the post-trial

hearing, complete written findings of fact. Therefore,

we require the Government to provide the military

judge’s written findings of fact to this court not later

than 24 February 2025. Additionally, we require the

Government to return the record of the post-trial

hearing to this court for further review not later

than 30 days after the military judge has completed

the written findings of fact. Counsel for the

Government shall promptly notify this court of any

decisions of the military judge regarding docketing or

continuances that may impact the ability of the

Government to return the matters to this court by this

deadline.

38a

It is further ordered:

Appellant may file a brief addressing the military

judge’s findings of fact not later than 14 days following

the court’s receipt of the military judge’s findings of

fact and record of the post-trial hearing. The

Government may file an answer brief not later than

14 days after the filing of Appellant’s brief. If no brief

is filed on behalf of Appellant, a brief on behalf of the

Government may be filed within 14 days after

expiration of the time allowed for the filing of a brief

on behalf of Appellant.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

39a

DEPARTMENT OF THE AIR FORCE

TRIAL JUDICIARY

UNITED STATES

v.

ADAM J. SHERMAN

Senior Airman (E-4)

U.S. Air Force

)

) DuBAY HEARING )

) FINDINGS OF FACT

)

)

) 21 February 2025

On 24 October 2024, the Air Force Court of Criminal

Appeals (AFCCA) ordered a post-trial fact-finding

hearing pursuant to United States v. DuBay, 37

C.M.R. 411 (C.M.A. 1967). The hearing took place at

Fort Leavenworth, Kansas, on 27-28 January 2025.

AFCCA directed a DuBay hearing to address, at a

minimum, the following three questions:

(1) Did trial defense counsel request from

Appellant and/or AS evidence or leads to

evidence relating to his case? Describe the

circumstances of any such requests.

(2) Did trial defense counsel request from

Appellant and/or AS evidence or leads to

evidence specifically relating to Appellant’s

whereabouts during the time periods when EM

was visiting at the camper in California?

Describe the circumstances of any such

requests.

(3) Did Appellant and/or AS offer to provide

trial defense counsel with evidence (to include,

e.g., witness contact information, employment

40a

records, photographs, text messages, receipts)

or leads to evidence relating to:

(a) Appellant’s whereabouts during the

time periods when EM was visiting at

the camper in California? Describe the

circumstances of any such offers; and

(b) the whereabouts of AS and/or her

children during the time periods when

EM was visiting at the camper in

California? Describe the circumstances

of any such offers.

AFCCA’s order makes clear that they are directing

findings of fact only. As such, I will only provide

findings of fact developed during the hearing

responsive to the questions posed in

AFCAA’s order. I will not provide legal analysis, as

any legal analysis would exceed the order.

Considering the testimonial and documentary

evidence admitted at the hearing, I make the

following findings of fact.

FINDINGS OF FACT

Background

1. On 16 March 2023, the Appellant was convicted,

contrary to his plea, at a general court-martial

composed of military judge alone at Beale AFB,

California, of one charge and one specification of rape

of a child, in violation of Article 120b, Uniform Code

of Military Justice.

2. At his court-martial, the Appellant was represented

by Major (Maj) Nicholas Aliotta and Captain (Capt)

Morgan Galusha.

41a

3. Maj Aliotta currently serves as the Deputy Chief

District Defense Counsel for District 2.

He is

stationed at Travis AFB, California. In late 2022, he

was detailed to represent the Appellant at his courtmartial.

4. Capt Galusha is currently stationed at Hurlburt

Field, Florida, as the Chief of Adverse Actions at

AFSOC/JA. From July 2021- July 2023, she served as

the Area Defense Counsel (ADC) at Beale AFB. While

serving as the ADC, Capt Galusha was detailed to

represent the Appellant at his court-martial.

5. Ms. Amanda Sherman (Ms. A. Sherman) is the

Appellant’s spouse and EM’s mother.

6. Ms. Nancy Sherman (Ms. N. Sherman) is the

Appellant’s mother.1 In the spring/summer of 2019,

Ms. N. Sherman lived with the Appellant and his

family in their camper. On 27 July 2019, Ms. N.

Sherman purchased a camper of her own.2 She spent

the rest of that summer living in her camper, which

was parked next to the Appellant’s camper.

7. Mr. Bruce McClasky is the owner of Frankenstein

Motors. Around 2018, the Appellant began working

at Frankenstein Motors when he was not on duty with

1 Prior to the Appellant’s court-martial, Ms. N. Sherman accused

the Appellant of abusing his biological children.

These

allegations were the subject of a defense motion in limine to

exclude evidence pursuant to Military Rule of Evidence 404. The

defense’s pretrial motion was granted, and trial defense counsel

elected to not pursue Ms. N. Sherman as a potential witness out

of concern for potentially opening the door to the excluded

evidence.

2 See App. Ex. XXXVII; App. Ex. XXXVIII. Trial defense counsel

never obtained any documentary evidence related to Ms. N.

Sherman’s camper purchase.

42a

the Air Force. This employment continued until the

Appellant’s court-martial.

8. SrA Garrett Harkey enlisted in the Air Force in

2020. He is currently stationed at Tinker AFB,

Oklahoma. In the summer of 2019, SrA Harkey was

a high school student and worked at Frankenstein

Motors with the Appellant. He saw the Appellant at

Frankenstein Motors on nearly a daily basis. SrA

Harkey does not recall being interviewed by trial

defense counsel in 2023; however, he did provide a

character letter for the Appellant.3

Did trial defense counsel request from Appellant

and/or AS evidence or leads to evidence relating to

his case? Describe the circumstances of any such

requests.

9. Trial defense counsel requested from the Appellant

and/or Ms. A. Sherman evidence or leads to evidence

related to the Appellant’s case.

a) Capt Galusha began representing the

Appellant around the time the report of

investigation into the Appellant was published.

During her representation, Capt Galusha had

several conversations with the Appellant

related to his case.

As part of those

conversations, Capt Galusha asked the

Appellant to provide her with evidence that

might be helpful in his case.

b) Capt Galusha told the Appellant, as was her

practice, that even if he did not think it was a

big thing, to still provide it to her so that she

could make the decision on whether it was

3 See Def. Ex. F.

43a

helpful to his case. She told him this included

text messages, pictures, contact information of

potential witnesses, and the like.

c) Maj Aliotta first reached out to Appellant via

email in late 2022. In that email, Maj Aliotta

introduced himself and requested a time to talk

to the Appellant about his case.

d) Similarly, as was his practice, Maj Aliotta

told the Appellant to provide trial defense

counsel with everything he possibly could

related to the case so that they could then make

a battle plan for how to defend against the

allegations.

10. Both trial defense counsel had several

conversations with the Appellant, either in person or

over the phone, in the leadup to trial. During those

conversations, trial defense counsel told the Appellant

to provide them anything and everything he had that

he thought could help his case. Trial defense counsel

asked that the Appellant be over inclusive in what he

provided to them.

11. Conversations with Appellant also included trial

defense counsel asking for names of potential

witnesses.

12. Trial defense counsel had similar conversations

with Ms. A. Sherman about the Appellant’s case.

13. In response to trial defense counsel’s requests for

evidence, Appellant and/or Ms. A.

Sherman provided a bill of sale for their camper,4 a

video showing the layout of their camper,5 Ms. A.

4 Def. Ex. A.

5 Def. Ex. B.

44a

Sherman’s Air Force enlistment contract,6 a binder of

documents related to EM and her trip to California,7

and the cell phone EM used when visiting California.8

14. Appellant and/or Ms. A. Sherman also provided

names of potential witnesses related to the case.

Did trial defense counsel request from Appellant

and/or AS evidence or leads to evidence specifically

relating to Appellant’s whereabouts during the time

periods when EM was visiting at the camper in

California? Describe the circumstances of any such

requests.

15. Trial defense counsel requested from the

Appellant and/or Ms. A. Sherman evidence or leads to

evidence specifically related to the Appellant’s

whereabouts during the time periods when EM was

visiting the camper in California.

16. Trial defense counsel asked the Appellant about

his work schedule during the time period EM was

visiting, to include asking about his employment at

Frankenstein Motors.

17. Trial defense counsel asked Ms. A. Sherman for

information about the daily interactions between the

Appellant and EM. They also asked Ms. A. Sherman

about the Appellant’s places of employment.

18. Trial defense counsel was also in receipt of a

binder with over one hundred pages of information

related to flight itineraries for EM’s trip to California,

campsite reservations for the summer of 2019,

6 Def. Ex. C.

7 App. Ex. XXXI; App. Ex. XXXIII.

8 See App. Ex. XXXV.

45a

pictures, and copies of various

conversations related to EM.9

text

message

Did Appellant and/or AS offer to provide trial

defense counsel with evidence (to include, e.g., witness

contact information, employment records,

photographs, text messages, receipts) or leads to

evidence relating to:

A. Appellant’s whereabouts during the time

periods when EM was visiting at the camper in

California? Describe the circumstances of any

such offers.

B. The whereabouts of AS and/or her children

during the time periods when EM was visiting at

the camper in California? Describe the

circumstances of any such offers.

19. Appellant and Ms. A. Sherman provided trial

defense counsel with evidence or leads to evidence

related to the whereabouts of both Appellant and Ms.

A. Sherman and her children during the time periods

EM was visiting the camper in California. 10

20. Trial defense counsel discussed with both

Appellant and Ms. A. Sherman their family’s

whereabouts and what was going on when EM was

visiting California.11

9 See App. Ex. XXXI; App. Ex. XXXIII

10 See App. Ex. XXXI; App. Ex. XXXIII; Def. Ex. A; Def. Ex. C.

11 Trial defense counsel reviewed the binder of evidence and EM’s

phone from the summer of 2019 that were provided to them by

the Appellant and Ms. A. Sherman. See App. Ex. XXXI; App. Ex.

XXXIII; App. Ex. XXXV. Trial defense counsel did not create a

map or formal calendar chronology like those that were

presented at the DuBay hearing. See, e.g., App. Ex. XXXIV; App.

Ex. XXXVI.

46a

a) The Appellant told trial defense counsel that,

during the time EM was visiting, he worked at

Frankenstein Motors in addition to being in the

Air Force. The Appellant provided trial defense

counsel the names of his employers at

Frankenstein Motors – Mr. and Ms. McClasky.

12 The Appellant did not provide trial defense

counsel with his work schedule from

Frankenstein Motors.

b) Ms. A. Sherman met with Appellant’s trial

defense counsel on several occasions, to include

at least two formal pretrial interviews. During

those meetings, they discussed the Appellant’s

case, which included Ms. A. Sherman

answering questions about EM, EM’s biological

father, daily interactions between Appellant

and EM, and the Shermans’ other children.

c) Trial defense counsel and Ms. A. Sherman

also discussed the places where the Appellant

was employed. Ms. A. Sherman responded to

questions she was asked but did not offer

12 Capt Galusha interviewed both Mr. and Ms. McClasky ahead

of trial. She asked Mr. McClasky about Appellant’s work

schedule, including the days and hours he worked at

Frankenstein Motors, with a focus on the time period that EM

was visiting. Mr. McClasky did not provide any fidelity on

Appellant’s work schedule at Frankenstein Motors. Capt

Galusha asked similar questions to Ms. McClasky and did not

receive any more specificity on the Appellant’s work schedule

during the relevant time frame. Capt Galusha believes she

asked Mr. and Ms. McClasky for timecards or other records that

could establish the Appellant’s schedule, but she cannot recall

that for certain. The week of Appellant’s court-marital, Mr.

McClasky was present at Beale AFB and available to testify. He

was told by someone to leave and was never called as a witness.

47a

additional information about the Appellant’s

schedule or whereabouts.

d) Ms. A. Sherman had the contact information

for Appellant’s trial defense counsel.

e) Trial defense counsel never refused to talk to

Ms. A. Sherman.

f) Trial defense counsel accepted every piece of

evidence Ms. A. Sherman offered them; trial

defense counsel never refused any offer of

evidence from Ms. A. Sherman.

NATHAN R. ALLRED, Lt Col, USAF

Military Judge

48a

1

A. No, I wasn’t the only one.

2

CIVDC: No further questions.

3

MJ: Trial Counsel?

4

STC: Nothing beyond that.

5

MJ: Is this witness subject to recall?

6

CIVDC: We’re calling-

7

MJ: Mr. Spinner?

8

CIVDC: I’m sorry. I was talking forward. Not

subject to recall.

9

MJ: Trial Counsel?

10

STC: Yes, Your Honor.

11

MJ: Okay.

12

[The witness was duly warned, temporarily

excused, and withdrew from the courtroom.]

13

MJ: Defense Counsel?

14

CIVDC: At this time, the defense calls Mr.

McClaskey. His name is Bruce. His first

15 name is Bruce, but he goes by Adrian.

16

MJ: Okay.

17

BRUCE ADRIAN MCCLASKEY

18

Civilian, was called as a witness for the

defense, being duly sworn, testified as

19 follows:

20

DIRECT EXAMINATION

21

BY ASSISTANT TRIAL COUNSEL:

22

Q. Sir, could you please state your full name for

the record?

49a

23

A. Bruce Adrian McClaskey.

78

1

Q. And sir, what’s the current city and state

that you live in?

2

A. Oroville, California.

3

ATC: Your witness.

4

BY CIVILIAN DEFENSE COUNSEL:

5

Q. Sir, do you have any problem with me calling

you Adrian?

6

A. Not at all.

7

Q. Adrian, you’re retired military?

8

A. Yes, sir.

9

Q. Can you briefly describe for the Judge your

Air Force background?

10

A. Yes, sir. I joined in 1999. I came from active

reserves. In California I was a U2

11 maintainer for 20 years. l3 deployments, a lot of

time overseas, a lot of leadership positions.

12 really enjoyed my time in the miliary. Retired in

2019.

13

Q. And after you retired from the Air Force,

what was - did you start a business?

14

A. Yes. So, about three years before I left the

military, I went for a- I decided to step

15 out on my own and I opened Frankenstein Motors.

During the last three years of service, I was

16 working day shift or swings, and I built a business.

I build the auto repair shop. So, when I got

50a

17 out of the military, I had income and a business.

18

Q. Where was Frankenstein Motors in relation

to Beale Air Force Base?

19

A. About two minutes to the Southwest.

Basically, right off the main road that comes

20 out of the base.

21

Q. Were you married at the time?

22

A. Yes, sir, I was married.

23

Q. And what’s your wife’s name?

79

1

A. Samantha McClaskey.

2

Q. Now, I assume you’re aware of why you’re

here today, because you were a potential

3 witness in the trial of Airman Sherman in March of

2023. Is that correct?

4

A. That’s correct. May I elaborate a little bit?

5

Q. No, I’m going to ask you – I’ll ask the

questions.

6

A. Absolutely.

7

Q. You’re going to arrive at a term of phrase of,

guided questions. So, at some point you

8 learned that Airman Sherman was going to be

prosecuted, court-martialed and he was facing

9 trial.

10

A. Yes, sir.

11

Q. And so, somewhere along that way, you were

presumably interviewed by defense

12 counsel.

51a

13

A. Yes. I was - I believe I wrote two statements.

I was interviewed by defense counsel,

14 and l believe I was subpoenaed but I don’t

remember. I was supposed to show up and I did show

15 up for a court on a day of court.

16

Q. Now, were you aware that there was a

motion that would have been in January of that

17 year, and that the defense and the prosecution,

with the concurrence Airman Sherman, agreed to

18 a stipulation of expected testimony from you and

your wife? Were you aware of that?

19

A. No, I was not aware of that.

20

Q. In any event, you were not called to testify

at any hearing in January of 2023?

21

A. No, that I’m aware of.

80

1

Q. About how many times did you have a faceto-face meeting with your [sic] defense

2 counsel in the case, if you recall? I know this is like

six years ago or three years ago, and the

3 event was six years ago.

4

A. I recall speaking with them, but the number

of times and really what it was about, is

5 fuzzy.

6

Q. Why are things - what is part of the reason

things may be fuzzy?

7

A. Well, it’s been a long time. There’s been a lot

of stuff that’s gone by. During that

52a

8 time I was dealing with some personal matters also,

with my daughter and stuff like that. So, I

9 had a lot on my mind as I was navigating this. Other

things were coming.

10

Q. In any event, did Airman Sherman work for

you at some point?

11

A. Yes, Airman Sherman-worked for me.

12

Q. What is your recollection in terms of the

approximate timeframe that he worked for

13 you?

14

A. I’d say it started probably early 2018. He

came to get some work done and we hit it

15 off and we found out he was crew chief, and we hit

it off as military and I realized he was a very

16 good mechanic and he started coming on and

spending more time around, helping out until he

17 just became a part of the team.

18

Q. So, was it your understanding and one of the

reasons the defense counsel wanted to

19 call you as a potential witness was because he

worked for you and they were trying to track his

20 time, the days of the week that he worked for you?

21

A. Yes, sir.

22

Q. Now, was your wife a co-owner, was she

active in the business?

81

1

A. Yes, she was a co-owner. She worked in the

office the whole time. She was doing all

53a

2 of the admin stuff, payroll and that kind of thing,

marketing and accounting, yes, sir.

3

Q. So, in terms of the hours or the days that

Airman Sherman showed up to work there,

4 did you keep a record yourself of his workdays and

times or did your wife probably keep a better

5 record of the time he put in?

6

A. That would have been her role. My role in

the business was mainly just being there,

7 putting things together, making sure stuff works.

8

Q. Now, I want to focus your attention on July

and August of 2019. Did the defense,

9 who may questioned you or talked to you, did they

focus in on the weeks of - starting the 5th of

10 July through about the 15th of august. Did they

draw your attention to those weeks? When you

11 were interviewed, were you and your wife

interviewed together or separate?

12

A. Separately.

13

Q. So, anyway, did they focus you on those

particular dates and times regarding whether

14 you could, in 2023, reconstruct what the work

hours were for Airman Sherman in that time

15 period of 2019?

16

A. Let me think for a moment, if you don’t mind.

Go back to kind of- it’s been a while.

17

Q. Okay.

18

A. I remember them talking about work

schedules and about character. I only remember

54a

19 context of- it’s been a while. I remember the context

of the interviews, but what they actually

20 asked me, I wouldn’t be able to sit up here and raise

my hand and tell you exactly the words they

21 said. The context was, did he work for you, when

did he work, what was the hours, kind of how

22 he interacted, that kind of thing with the

timeframes. I don’t believe there was directed, during

23 this time, during that time. I think it was more

broad view of when he was there on a daily basis.

82

1

Q. Well, based on your best recall, what is your

memory, as far as whether he came to

2 work before - he came to work for you before he went

to Beale or that he worked at Beale and

3 then came to work for you or both? What do you

recall about that?

4

A. So, his schedule was based on his Air Force

schedule. So, say he worked days,

5 because of the location where he lived, it was so far

away, he would actually come - if he

6 worked day shift, he would come to shop in uniform

and change in uniform and start working.

7 What he did was he was like a turnover guy, because

all of my employees stop at 5, and we

8 would update at 3 or 4. So, he would take that

information and keep going on the important jobs.

9 And then Friday, Saturday, Sunday, he’d come in

Friday, find stuff to do for the weekend, to get

55a

10 everything finished up for the week. Then on into

Saturday, Sunday, get that done and set us up

11 for the next week. He was really a integral part, he

was there all the time. When he worked

12 swing shift, he’d come in in the morning and work

with the guys in the morning, and then he’d

13 change and go to work. He’d shower sometimes and

then change and go to work from there.

14 But he didn’t - when he came from - when he was

involved with the Air Force, he came straight

15 to the shop every time because the distance to the

place where he lived, it was just easier for him

16 to do that.

17

Q. And about how many days a week would he

show up at your place?

18

A. Most. It was - when he was working really

full time, he was there almost every day.

19 I was also, building the business. He was there

with me, we worked together constantly. On

20 days off, I remember he would leave to do stuff with

the family and stuff like that. He’d ask me,

21 hey, I’ve got this scheduled, I’ve got that scheduled.

But he was there just like I was. We were

22 building the business together.

83

1

Q. So, do you recall, in relation to the trial, what

was the last time the defense counsel

2 prepared you to testify at the trial?

56a

3

A. It would have been in the days right before

the trial. They spoke to me a couple of

4 times. I remember them, similar to how you’ve

talked to me. Similar to how we’ve talked. I

5 remember a similar type of conversations leading up

to it. And my understanding the whole time

6 was, I’m showing up to do what we’re doing here,

until I walked into the building and sat there

7 for [inaudible]

8

Q. So, you showed up for trial. Were you just

there one day or multiple days at the trial

9 proceeding?

10

A. I was there the first day, I believe. Let me

think. I don't know if I was there the first

11 day or not. I was there the day they told me to be

there.

12

Q. Right. And after you got there, how long did

you wait - well, first of all, then they

13 told you to leave, correct?

14

A. Yes. They - would you like me to elaborate on

both of those questions?

15

Q. Yes.

16

A. Okay. So, I showed up and I was speaking

with Amanda. And we were in the main

17 lobby room, and people were going in and out and

things were getting going. I believe it was the

18 defense or one of the paralegals came out and spoke

to me, well, we don’t need you, you need to

57a

19 go. We didn’t even talk about it, you need to go.

We’ve got your statement, we’ve done all of

20 these things. And it was almost like somebody just

said, go, have a nice day. I was making

21 phone calls from the parking lot, trying to figure

out what had happened. It’s just a very odd

22 thing to have somebody come up and say like, kick

rocks, because that's what it felt like. I felt

23 like he just came up and said, kick rocks, get out of

here. No explanations, nothing.

84

1

Q. So, you were prepared in March 2023, you

were present, and you were ready to

2 testify regarding his work schedule at your business,

beyond just the 2019 timeframe, but for the

3 prior years, 2018, 2019 that he worked there.

4

A. Yes.

5

Q. To this day, have you been given any

explanation as to why you were released and

6 did not testify?

7

A. No, I didn’t hear from anybody after that

until we’ve spoken. That was the end of the

8 communication.

9

Q. Now, I want to talk about a slightly sensitive

area. You’re in the middle of getting a

10 divorce, correct?

11

A. Yes, sir.

12

Q. Did your wife - did she also show up and did

they want - or was it just you that

58a

13 showed up to testify, if you recall?

14

A. I know that they interviewed,

statements, and I believe she was supposed to

got

15 testify. I don’t remember being there at the same

time as her, though. But I was there. I’m not16 it’s been a while, right. But I don't remember if she

was there at that moment to testify or not. I

17 remember just being really confused because of the

way they had set everything up and then

18 when it was all of a sudden over. I have a big

memory of that was a lot of confusion about this

19 happening.

20

Q. Well, at any point did she share with you

that she testified?

21

A. No, she did not testify either.

22

Q. And then finally, the sensitive area. Are you

undergoing a divorce right now?

23

A. Yes, I’m in the middle of a divorce right now.

85

1

Q. And is it acrimonious?

2

A. I’m not exactly sure of the definition of that

word, but in context, no. I would say it’s

3 probably not. It's not good.

4

Q. But do you know if any records still exist in

2025 that go back to work schedules in

5 2019?

6

A. Would you like for me to elaborate on why

we don’t have that?

59a

7

Q. Sure.

8

A. Judge, last fall I presented divorce

paperwork to my soon to be ex-wife. She was a

9 business co-owner and ran all of our accounts and

everything. She locked everything down,

10 cancelled all of our services and all of our stuff is

online cloud-based stuff. So, every record

11 from my business that was electronic is now gone

an my business no longer exists. So, I don’t

12 have those records.

13

MJ: Thank you.

14

Q. If you had been asked for copies of work

records in 2023, when you were prepared to

15 testify, would those record have been available at

that time?

16

A. Yes, they would have been available at that

time. All that stuff was electronically

17 kept. Every job he worked on was assigned in the

system and is absent.

18

CIVDC: No further questions, Your Honor.

19

MJ: Thank you. Trial Counsel?

20

TC: Thank you, Your Honor

21

CROSS-EXAMINATION

22

BY TRIAL COUNSEL:

23

Q. Good afternoon, Mr. McClaskey.

86

1

A. Good afternoon, Captain.

60a

2

Q. I want to talk to you more about the date you

showed up for. Was the hearing that

3 you showed up to testify at in January or was it in

March?

4

A. March.

5

Q. It was in March. And how do you know that

it was in March?

6

A. That’s when l showed up, I believe. I couldn’t

tell you, but that’s when they said it

7 was.

8

Q. So, you showed up at the hearing because

trial defense counsel told you that they

9 needed you to testify at that hearing?

10

A. They gave a subpoena to me. I was actually

subpoenaed.

11

Q. So, you were served the subpoena. So, they

had been preparing or you to testify at

12 that hearing which you were actually subpoenaed.

13

A. Yes, they had been preparing me.

14

Q. And you said that they had reached out to

you a couple of times.

15

A. Yes.

16

Q. And they talked to you about Senior Airman

Sherman’s work schedule.

17

A. Yes.

18

Q. And like when you hired him?

19

A. Yes.

61a

20

Q. And testified on direct that it was primarily

your wife that kind of ran the scheduling

21 and things, right?

22

A. She really kind of tracked those things.

23

Q. And to your knowledge, they interviewed

her, as well?

87

1

A. Yes.

2

Q. When they asked you about his work

schedule, what did you tell them?

3

A. My assumption would be the same thing I

told you guys. I don’t remember the exact

4 conversation, but his schedule is his schedule. I

wouldn’t have told them anything different.

5

Q. That’s fair. So, you would have told them

that you hired him sometime in 2018?

6

A. Yes, early 20 I 8.

7

Q. That that when you met him, he was just a

customer, showing up at the shop?

8

A. Yes.

9

Q. And that you guys hit it off.

10

A. Yes.

11

Q. And you decided to bring him on for a few

jobs in the beginning?

12

A. Yes.

13

Q. And it progressed into him working there

more often.

14

A. Yes.

62a

15

Q. But in the beginning, in 2018 into 2019, it

was still something like off and on jobs.

16

A. No.

17

Q. No. So, when did it change between ---

18

A. Very quickly in 2018.

19

Q. In 2018?

20

A. Yes. I saw how quickly he grabbed on to it.

21

Q. So, his schedule when he worked there, was

he living - let me back up. Was he

22 living in base housing on Beale when he first

started working there?

23

A. Yes.

88

1

Q. And at some point, are you aware that he

moved into a camper?

2

A. Absolutely.

3

Q. And that they would take this camper up to

Lake Minden or another RV park.

4

A. Yes. They were on a schedule with, I believe

it was called A Thousand Trials. And

5 you pay a yearly fee, and you can stay at a certain

park for a certain period of time and then you

6 have to move.

7

Q. And so, was it harder for him to come into

work once they had moved further away in

8 the camper?

9

A. No.

10

Q. It wasn’t harder for him to come in?

63a

11

A. It was easier.

12

Q. It was easier for him to come in.

13

A. Yeah.

14

Q. When he lived in the camper, your testimony

is that when he lived in the camper, he

15 would not come in less often than when he lived on

Beale Air Force Base?

16

A. That is correct.

17

Q. Sir, do you remember talking to myself and

Major Simpson yesterday?

18

A. Yes.

19

Q. And yesterday you told us that when he

moved into the camper, that he came in less

20 often because it was further away?

21

A. Let me make sure I’m clear on this, okay?

22

Q. Uh huh.

89

1

A. He lived further away, so he came in directly

from work instead of going to the

2 camper, because it would have been more driving,

more time, for him to go home. So, it made it

3 harder for him to go home, but he actually came to

work.

4

Q. Yes, sir. But he came in to work less days.

That’s what you told us yesterday,

5 correct?

6

A. I don’t believe the context of our conversation

is translating properly. I may have - I

64a

7 may not have--8

Q. Did he or did he not come in less days when

he lived further away?

9

A. He came in the same amount. It didn’t

change much. He just didn’t go home.

10

Q. Let me ask it this way. Was he there every

day?

11

A. Not every day, no.

12

Q. He would take time off.

13

A. Yes.

14

Q. And he would go home to his family in the

evening.

15

A. He would take time off for things to do with

the family.

16

Q. Would he go home at night?

17

A. [no response]

18

Q. Yes or no, would he go home at night?

19

A. I can’t answer that question.

20

Q. Would he leave work, with you, after he

finished the job?

21

A. Yes.

22

Q. And after he had been done working at the

Air Force?

23

A. Yes.

90

1

TC: Your Honor, may I have a moment?

2

MJ: You may.

65a

3

TC: I have no further questions, Your Honor.

4

MJ: Okay. Defense?

5

CJVDC: Just a couple of brief questions.

6

MJ: Okay.

7

REDIRECT EXAMINATION

8

BY CIVILIAN DEFENSE COUNSEL:

9

Q. Do you know who [EM] is?

10

A. Yes, sir.

11

Q. Who is she?

12

A. It would be his step-daughter.

13

Q. And in talking about when he took time off,

I think in our interview yesterday, you

14 talked about going to Pio Pico or something like

that?

15

A. So, I remember him going to Yosemite. They

took trips. So, when [EM] was out,

16 he would come in when the kids were doing other

stuff. But that’s the time when they would

17 take trips, they would go places.

18

Q. So, you do recall there was a time - although

you don't recall the date, July or August

19 2019, but you know there was a time he went to

those locations.

20

A. Yes, sir.

21

Q. And you recall they were at the same time

that [EM] was with him.

22

A. Yes. The purpose of the trips was because

she was visiting, and they could go and do

66a

23 things with the family, to go on adventures and

stuff.

91

1

Q. But then when he was nearby, Lake Minden,

Lake of the Springs, he would be

2 working, coming to work.

3

A. Yes.

4

Q. Sufficiently nearby to work.

5

A. Yes.

6

CIVDC: Okay, I have no further questions,

Your Honor.

7

MJ: Trial Counsel?

8

TC: No recross, Your Honor.

9

MJ: Oaky. Is this witness subject to recall?

10

CIVDC: Yes, Your Honor.

11

[the witness was duly warned, temporarily

excused, and withdrew from the courtroom.)

12

MJ: Defense Counsel?

13

DC: Yes, Your Honor, I do have a copy of

Appellate Exhibit XXXIII and XXXV.

14

MJ: Okay.

15

DC: Handing a copy to the government, the

original to the court reporter, and a working

16 copy for Your Honor.

17

MJ: Thank you.

18

DC: Your Honor, at this time, the defense calls

Senior Airman Garrett Harkey.

67a

19

MJ: Okay.

20

[END OF PAGE]

21

92

1

SENIOR AIRMAN GARRETT ALONZO

HARKEY

2

U.S. Air Force, was called as a witness for

the defense, being duly sworn, testified as

3 follows:

4

DIRECT EXAMINATION

5

BY ASSIST ANT TRIAL COUNSEL:

6

Q. Sir, could you please state your full name

and rank for the record?

7

A. Senior Airman Garrott Alonzo Harkey.

8

Q. And what is your current duty station, sir?

9

A. Tinker, Oklahoma.

10

ATC: Defense Counsel, your witness.

11

BY APPELLATE DEFENSE COUNSEL:

12

Q. Airman Harkey, were you in the military in

July of 2019, in the summer?

13

A. No.

14

Q. When did you enlist?

15

A. September 2020.

16

Q. Where did you live in the summer of 2019?

17

A. In Linda, California.

18

Q. Do

Sherman?

you know

Senior Airman Adam

68a

19

A. Yes.

20

Q. How do you know him?

21

A. Through Frankenstein Motors.

22

Q. May I ask you to speak up, it’s a little bit

hard to hear you. Where did you say that

23 you met him?

93

1

A. At Frankenstein Motors.

2

Q. Did you work together?

3

A. Yes.

4

Q. So, I’m going to focus specifically on the

summer of 2019. When would you see

5 Airman Sherman?

6

A. In the summer of 2019, I would see him when

I was working at Frankenstein Motors.

7 He would come in - when he was on day shift, he

would help closing the shop, getting things

8 ready for the weekend, basically, like clean-up.

That’s when I would see him. If he was on the

9 opposite shift, he would come in and work all day,

basically, and then change into uniform there

10 and go to work at Beale.

11

Q. So, when you said-he worked days, you mean

when he worked days at Frankenstein

12 Motors?

13

A. No, in the military. If he was on day shift in

the military, he would be at Frankenstein

14 Motors after military.

69a

15

Q. And when he worked nights, when would he

be at Frankenstein Motors?

16

A. During the day.

17

Q. How often - how many days a week would

you say you saw him?

18

A. Almost every day.

19

Q. And when you did work with him, how often

would you see him change into a

20 uniform, one way or the other?

21

A. It would be once or twice in the day. He

would change there, to go to work, come

22 back to work or to Frankenstein Motors, get out of

his uniform and then start working again.

23

Q. So, when he worked days at Beale, he would

come in after work at Beale.

94

1

A. Yes.

2

Q. And he would change out of his uniform.

3

A. Yes.

4

Q. And when he worked nights at Beale, he

would come in, not in uniform, and work at

5 Frankenstein Motors?

6

A. No, he’d still change after that.

7

Q. Right. So, when he worked nights at Beale,

he would not be in uniform when he

8 worked at Frankenstein Motors and then change to

go to work at Beale. Is that right?

9

A. Yes.

70a

10

Q. To the best of your recollection, did defense

counsel ever interview you for Airman

17 Sherman’s trial?

12

A. As in this one?

13

Q. No. ln 2023, do you recall if trial defense

counsel --14

A. No, no.

15

Q. You don't recall or they didn’t interview you?

16

A. I don’t recall.

17

Q. Did - do you remember providing a character

statement for Airman Sherman?

18

A. Yes.

19

Q. And for the record, that’s Appellate Exhibit

F [sic]. So, you were contacted to give a

20 character letter for Airman Sherman.

21

A. Yes.

22

Q. And you provided that to the defense?

23

A. Yes.

95

1

Q. And you---

2

MJ: Defense Counsel, I think that’s Defense

Exhibit F.

3

DC: Yes. I apologize, Your Honor, thank you.

It’s Defense Exhibit F.

4

Q. At any point in time in 2023, did you ever

testify in Airman Sherman’s court-martial?

5

A. No.

71a

6

DC: Your Honor, a moment to confer with cocounsel?

7

MJ: You may.

8

[Defense counsels conferred.]

9

Q. Airman Harkey, just for a little bit of

context. Were you in high school during that

10 timeframe, 2019?

11

A. Yes.

12

Q. But in the summers is when you worked for

-- the summer of 2019 is when you

13 worked for Frankenstein Motors. Is that right?

14

A. Yes.

15

DC: Your Honor, I have nothing further.

16

MJ: Trial Counsel?

17

ATC: Yes, Your Honor.

18

CROSS-EXAMINATION

19

BY ASSIST ANT TRIAL COUNSEL:

20

Q. Senior Airman Harkey, you were selfdescribed as the shop kid at Frankenstein

21 Motors. Is that correct?

22

A. Yes.

96

1

Q. So, and by that, you were just kind of a young

high school kid that worked there in

2 your off time, correct?

3

A. Yes.

72a

4

Q. So, you weren’t an administrator or manager

there?

5

A. No.

6

Q. You weren’t

Sherman’s work hours?

tracking

Senior

7

A. No.

8

Q. He didn’t clock in and out with you?

9

A. No.

Airman

10

Q. The shop, when did that close on a daily

basis?

11.

A. 5:00 pm.

12

Q. So, it wasn’t a 24/7 operation?

13

A. No.

14

Q. And despite your testimony here today, you

don’t know the exact dates and times that

15 Airman Sherman was at the shop, do you?

16

A. No.

17

ATC: No further questions for this witness.

18

MJ: Okay.

19

DC: Your Honor, may I have just a moment?

20

MJ: You may.

21

[Defense counsels conferred.]

22

DC: Thank you, Your Honor.

23

97

1

REDIRECT EXAMINATION

2

BY APPELLATE DEFENSE COUNSEL:

73a

3

Q. So, while the shop closed to the public at 5:00

pm, when Airman Sherman came in

4 and worked nights at Frankenstein Motors, was he

working past 5:00 pm?

5

A. Yes.

6

Q. You were just asked if you know the exact

dates and times that Airman Sherman

7 worked that summer and you said, no. Is that right?

8

A. Yes.

9 Q. But if you were asked in 2023, close in time,

would you have a better chance of

10 knowing, potentially, when you worked with him?

11

A. 2023, I was in Korea.

12

Q. But if you had been asked two years ago

about when you worked with Airman

13 Sherman, would you have been able to look at your

phone at text messages and photographs and

14 have a better idea of when you worked with Airman

Sherman?

15

A. Yes.

16

DC: Nothing further, Your Honor.

17

MJ: Trial Counsel?

18

ATC: One moment, Your Honor.

19

MJ: You may.

20

[Trial counsels conferred.]

21

ATC: Nothing further, Your Honor.

22

MJ: Okay. Subject to recall?

74a

23

DC: Yes, Your Honor.

98

1

[The witness was duly warned, temporarily

excused, and withdrew from the courtroom.]

2

MJ: Defense Counsel?

3

CIVDC: That’s it, Your Honor, we don’t any

other evidence to present at this

4 proceeding, unless in rebuttal to the government's

case.

5

MJ: We’ve been going for about an hour, it looks

like. So, why don’t we take a ten6 minute recess and then, Trial Counsel, we’ll pick up

with you case when we get back. Court’s in

7 recess for 10 minutes. Thanks, carry on.

8

[The Article 39(a) session terminated at 1411 ,

27 January 2025.]

9

10

[END OF PAGE]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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