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.