Petition for Writ of Certiorari — William T. Cooley, Petitioner v. United States

ia

APPENDIX

TABLE OF CONTENTS

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Cooley, No.

25-0277/AF (Jan. 6, 2026) ................................... 1a

Court of Appeals for the Armed Forces

Opinion, United States v. Cooley, No.

ACM 40376 (Jul. 29, 2025) .................................. 3a

1a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

USCA Dkt. No. 25-0277/AF

Crim.App. No. 40376

v.

ORDER DENYING PETITION

William, T.

Cooley,

Appellant

Upon consideration of the petition for grant of

review of the decision of the United States Air Force

Court of Criminal Appeals and the government’s

answer to the supplement to the petition, we note that

the government acknowledges that this court had

already held in United States v. Folts, __M.J.__, No.

25-0043/AF (C.A.A.F. Aug. 18, 2025) that it has

jurisdiction over cases like the case at bar. We also

note

that

the

government’s

petition

for

reconsideration of Folts was denied. United States v.

Folts, __M.J.__, No. 25-0043/AF (C.A.A.F. Sep. 24,

2025). Under Folts, we hold that the lower court had

jurisdiction in this case. Accordingly, it is by the court,

this 6th day of January, 2026,

ORDERED:

That the petition is hereby denied.

For the Court,

2a

/s/

Malcolm H. Squires, Jr.

Clerk of the Court

cc: ….The Judge Advocate General of the Air Force

Appellate Defense Counsel (Zimmermann)

Appellate Government Counsel (Payne)

3a

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 40376

________________________

UNITED STATES

Appellee

v.

William T. COOLEY

Major General (O-8), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary 1

Decided 29 July 2025

________________________

Military Judge: Christina M. Jimenez.

Sentence: Sentence adjudged 26 April 2022 by GCM

convened at Wright-Patterson Air Force Base, Ohio.

Sentence entered by military judge on 3 June 2022:

Forfeiture of $10,910.00 pay per month for five

months and a reprimand.

Appellant appeals his conviction under Article 66(b)(1(A),

Uniform Code of Military Justice, 10 U.S.C. § 866(b)(1)(A)

(Manual for Courts-Martial, United States (2024 ed.)).

1

4a

For Appellant: Major Heather M. Bruha, USAF; Terri

R. Zimmermann, Esquire.

For Appellee: Lieutenant Colonel J. Peter Ferrell,

USAF; Lieutenant Colonel Jenny A. Liabenow, USAF;

Major Morgan R. Christie, USAF; Major Kate E. Lee,

USAF; Major Brittany M. Speirs, USAF; Major

Jocelyn Q. Wright, USAF; Mary Ellen Payne, Esquire.

Before JOHNSON, ANNEXSTAD, and GRUEN,

Appellate Military Judges.

Chief Judge JOHNSON delivered the opinion of the

court, in which Senior Judge ANNEXSTAD and Judge

GRUEN joined.

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4.

________________________

JOHNSON, Chief Judge:

A general court-martial composed of a military

judge alone convicted Appellant, contrary to his pleas,

of one specification of abusive sexual contact in

violation of Article 120, Uniform Code of Military

5a

Justice (UCMJ), 10 U.S.C. § 920. 2,3 The military judge

sentenced Appellant to forfeiture of $10,910.00 pay

per month for five months and a reprimand. The

convening authority took no action on the findings,

approved the entire sentence, and provided the

language of the reprimand.

Appellant raises seven issues on appeal: (1)

whether the findings of guilty are legally and factually

sufficient; (2) whether the military judge abused her

discretion in admitting prior consistent statements by

the victim and her husband; (3) whether the military

judge abused her discretion by sustaining objections

during cross-examination of a prosecution witness; (4)

whether the military judge abused her discretion by

denying a defense request to take judicial notice of a

change in the law; (5) whether Appellant’s sentence is

inappropriately severe; (6) whether the application of

the 18 U.S.C. § 922 firearms prohibition to Appellant

warrants correction; and (7) whether the notation

regarding sex offender registration in the indorsement

to the entry of judgment requires correction. 4 In

addition, although not raised by Appellant, we

Unless otherwise indicated, all references to the punitive

articles of the UCMJ are to the Manual for Courts-Martial,

United States (2016 ed.), and all other references to the UCMJ,

Rules for Courts-Martial, and Military Rules of Evidence (Mil. R.

Evid.) are to the Manual for Courts-Martial, United States (2019

ed.).

2

The military judge found Appellant not guilty of two

specifications of abusive sexual contact in violation of Article 120,

UCMJ.

3

4 Appellant personally raises issue (7) pursuant to United States

v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

6a

consider (8) whether Appellant is entitled to relief for

facially unreasonable post-trial delay.

We have carefully considered issue (6) and find

Appellant is entitled to no relief. United States v.

Johnson, __ M.J. __, No. 24-0004, 2025 CAAF LEXIS

499, at *9–11 (C.A.A.F. 24 Jun. 2025) (holding Article

66(d)(2), UCMJ, 10 U.S.C. § 866(d)(2), “does not give

the [Court of Criminal Appeals] authority to modify

the [18 U.S.C.] § 922 indication”). We have carefully

reviewed issue (7) and find it requires neither further

discussion nor relief. See United States v. Matias, 25

M.J. 356, 361 (C.M.A. 1987). With respect to the

remaining issues, we find no error materially

prejudicial to Appellant’s substantial rights, and we

affirm the findings and sentence.

I. BACKGROUND 5

In August 2018, Appellant was the commander of

the Air Force Research Laboratory (AFRL) and

stationed at its headquarters at Wright-Patterson Air

Force Base (AFB), Ohio. Appellant’s brother, TC,

worked as an Air Force civilian employee at a division

of AFRL located at Kirtland AFB, New Mexico. TC

lived in Albuquerque, New Mexico, with his wife MC, 6

who was not an Air Force employee. As of August

2018, Appellant had known his sister-in-law MC for

approximately 30 years. According to MC, during

most of that time Appellant had not been particularly

5 The following background is drawn in large part from MC’s trial

testimony; unless otherwise indicated, quotations are from her

testimony.

6 TC and MC both possessed PhD degrees; in this opinion we omit

their “Dr.” titles for the sake of simplicity and ease of reading.

7a

friendly toward her; however, in the preceding year or

two Appellant had become friendlier, acting

“thoughtful,” “kind,” and “[s]howing a genuine

interest in [her].”

On the weekend of 11–12 August 2018, Appellant

was in Albuquerque for work-related reasons.

Appellant spent the night of Saturday, 11 August

2018, at the home of TC and MC. Appellant spent part

of the day on Sunday, 12 August 2018, at the home of

his parents, who also lived in Albuquerque not far

from TC and MC. Appellant initially planned to spend

the night of 12 August 2018 at his parents’ house.

However, Appellant returned to TC and MC’s house

later that day to attend a barbeque dinner in their

back yard. In addition to Appellant, TC, and MC, the

barbeque was attended by Appellant’s parents; CC,

the daughter of TC and MC; and DH and DM, 7 a

married couple who were close family friends. MC

later testified she consumed approximately “a glass

and a half” of sangria over the course of four or five

hours, and she did not feel intoxicated at all. MC

testified Appellant also drank some amount of sangria

as well as approximately “two inches” of whiskey, but

he did not appear intoxicated either.

Appellant’s parents were the first to leave the

barbeque, followed by DH and DM around 2100. CC

went to bed shortly thereafter. Appellant, TC, and MC

continued socializing in the kitchen. Appellant

indicated he would prefer to spend the night at TC and

MC’s house again rather than the parents’ house.

7 For the sake of simplicity and ease of reading, we omit DH’s and

DM’s professional titles.

8a

TC and MC offered to let Appellant stay at their house

that night. At that point Appellant asked MC to drive

him to the parents’ house to retrieve his suitcase, and

she agreed.

MC and Appellant got in MC’s Jeep to drive to the

parents’ house, a trip that MC estimated would take

at most two minutes each way. After MC backed the

vehicle into the street and put her hand on the gear

shift to put it in drive, Appellant put his hand on top

of hers. MC was initially “stunned” because Appellant

“had never done anything like this before.” MC

withdrew her hand and continued driving, and asked

Appellant if he was “okay.” Appellant then asked MC

whether she ever fantasized about him. Appellant told

MC he had been thinking about her and thought she

was beautiful, and told her he “wanted to f[**]k [her]

in the pool today” and “wanted [her] to suck his

c[**]k.” Again MC was stunned because Appellant had

never spoken to her like that before, and she told him

she did not fantasize about him or feel any “sexual

tension” between them.

When they arrived at the parents’ house,

Appellant got out of the Jeep and went inside. MC

stayed in the vehicle, “shaking” and “trying to collect

[her] thoughts.” She thought of using her phone to

record whatever happened on the ride back to her

house, but she dropped the phone on the floor of the

vehicle as Appellant returned to it. As MC began

driving away from the parents’ house, Appellant put

his hand over hers again and this time intertwined

their fingers. According to MC, Appellant then

“yank[ed]” her right hand toward him and forced it

“onto his genitals” over his pants. MC “yank[ed] [her]

hand back” and told him to “[S]top. Just stop.”

9a

Appellant responded “something to th[e] effect” of

“[M], I don’t know. I’m all man.”

During the rest of the drive, MC attempted to

change the subject and continued talking “simply

trying to distract [Appellant].” According to MC, after

she parked in her garage and before she could

unfasten her seat belt, Appellant put his hands on her

shoulders and pushed her against the vehicle’s

window. Appellant then put his mouth on her mouth

and, according to MC, “shove[d] his tongue down [her]

throat.” Appellant “cupped” MC’s breast with his

hand, then put the same hand “between [her] legs”

and touched her “genital area” over her clothing. MC

then pushed Appellant back into his seat and told him

to stop. Appellant attempted to move toward MC

again, but she again pushed him back and told him to

stop.

Shortly thereafter, TC came into the garage,

looked into the Jeep, and asked if everything was

“okay,” or something to that effect. Either MC or

Appellant responded to the effect that everything was

okay. MC got out of the vehicle and went to bed

without talking to Appellant or TC any more that

evening.

The following Monday morning, 13 August 2018,

MC walked into the kitchen to find Appellant and TC

having breakfast together. At one point, TC left the

room to get a tie. Appellant quietly asked MC, “We’re

good, right?” In response, MC “just shook [her] head a

little bit and said nothing.” After Appellant and TC

drove to work together, MC stayed at home, missing

some work meetings and spending “a lot of time

crying.” That evening, MC told TC about what had

10a

happened with Appellant the night before. TC

appeared “shock[ed].”

On 14 August 2018, MC left a lengthy message on

Appellant’s phone, spread over three consecutive

recordings. MC told Appellant, inter alia, that she was

“stunned” but “flattered” by his actions, and that

Appellant should search his head and heart to

“uncover the root” of his behavior. MC told Appellant

that she had told TC they had “kissed,” but her

message did not refer to the other sexual contact she

later described in her testimony. At trial, MC

explained the relatively friendly and hopeful tone of

her messages was due to her hope they would be able

to “work through this” and “salvage” their

relationship.

Initially, neither MC nor TC reported Appellant’s

behavior to law enforcement or Air Force authorities.

Instead, over the next 12 months MC and TC

exchanged a series of communications with Appellant

about the incident via emails and other means. They

repeatedly requested Appellant take various steps to

acknowledge his responsibility and show contrition for

the 12 August 2018 incident with MC, including inter

alia that he apologize in detail for his actions, admit

his behavior to certain family members, and enroll in

a “therapy treatment program.” At first, Appellant

responded to these messages positively. For example,

at their request, Appellant attended a counseling

session with MC, TC, and their therapist. He

repeatedly apologized, expressed regret, and

described his self-reflection and desire to improve

himself. He admitted to having kissed MC and put his

tongue in her mouth. Appellant paid MC and TC

$891.00 for what they calculated as their costs due to

the incident. However, over time, MC and TC

11a

expressed dissatisfaction with Appellant’s response in

various respects, and in particular were offended by

any suggestion that MC had contributed to the

incident by, for example, being at all flirtatious on 12

August 2018. MC and TC repeatedly suggested they

might report the incident if Appellant failed to satisfy

their requests.

On 18 August 2019, after he sent the check for

$891.00, Appellant sent TC an email wherein, inter

alia, he accused TC and MC of “blackmail,” stated he

would not “participate” anymore, and threatened to

contact the Air Force Office of Special Investigations

(OSI). Appellant stated:

I’ve admitted and owned my part from

the night of 12 Aug[ust] 2018--what I did

was wrong, I apologized for it, and both

you and [MC] accepted my apology but I

refuse to participate in a false narrative

that continues to misconstrue the events

of that night (characterizing it as an

attack).

....

This ends here.

MC and TC eventually reported the 12 August

2018 incident and were interviewed by OSI agents in

December 2019. Ultimately, the military judge found

Appellant guilty of one specification of abusive sexual

contact in violation of Article 120, UCMJ, for “kissing

[MC] on the mouth with his lips and tongue” without

her consent. The military judge found Appellant not

guilty of two other specifications of abusive sexual

contact by allegedly causing MC to touch his genitals

with her hand through his clothing, and touching

12a

MC’s breast and genitals with his hand through her

clothing.

II. DISCUSSION

A. Legal and Factual Sufficiency

1. Law

We review issues of legal and factual sufficiency de

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

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

legal and factual sufficiency is limited to the evidence

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

521, 525 (A.F. Ct. Crim. App. 2021) (citation omitted).

“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

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

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

sufficiency, we are bound to draw every reasonable

inference from the evidence of record in favor of the

prosecution.” United States v. Barner, 56 M.J. 131,

134 (C.A.A.F. 2001) (citations omitted). Thus, “[t]he

standard for legal sufficiency involves a very low

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

(alteration in original) (citation omitted).

13a

“The [applicable8] 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 (third 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).

In order to convict Appellant of abusive sexual

contact as alleged in Specification 1 of the Charge, the

Government was required to prove that Appellant

committed sexual contact on MC—specifically, by

kissing her on the mouth with his lips and tongue—by

causing bodily harm and with intent to gratify his

sexual desires. See 10 U.S.C. § 920(d); Manual for

Courts-Martial, United States (2016 ed.) (2016 MCM),

pt. IV, ¶ 45.b.(8)(b). As relevant to this case, “sexual

contact” includes “any touching, or causing another

person to touch, either directly or through the

clothing, any body part of any person, if done with an

8 Because the offense for which Appellant was convicted occurred

before 1 January 2021, statutory changes to our factual

sufficiency review under Article 66, UCMJ, 10 U.S.C. § 866, that

came into effect on that date do not apply in this case. See

generally United States v. Harvey, 85 M.J. 127, 129–30 (C.A.A.F.

2024).

14a

intent to arouse or gratify the sexual desire of any

person. Touching may be accomplished by any part of

the body.” 10 U.S.C. § 920(g)(2)(B) (2016 MCM). “The

term ‘bodily harm’ means any offensive touching of

another, however slight, including any nonconsensual

sexual act or nonconsensual sexual contact.” 10 U.S.C.

§ 920(g)(3) (2016 MCM).

“[I]t is a defense to an offense that the accused

held, as a result of ignorance or mistake, an incorrect

belief of the true circumstances such that, if the

circumstances were as the accused believed them, the

accused would not be guilty of the offense.” Rule for

Courts-Martial (R.C.M.) 916(j)(1). If the mistake goes

to an element requiring general intent, it “must have

existed in the mind of the accused and must have been

reasonable under all the circumstances.” Id. An

honest and reasonable mistake that the victim

consented to the charged sexual contact is an

affirmative defense to the charged offense. See, e.g.,

United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F.

2019) (considering the defense of honest and

reasonable mistake of fact to general intent offense of

sexual assault); United States v. Lee, No. ACM 39531

(f rev), 2020 CCA LEXIS 61, at *19–22 (A.F. Ct. Crim.

App. 26 Feb. 2020) (unpub. op.) (applying McDonald

to hold abusive sexual contact is also a general intent

offense). While the quantity of evidence required to

raise the mistake of fact defense is low, the record

must contain evidence supporting both the subjective

“honest” and the objective “reasonable” mistaken

belief. See United States v. Davis, 76 M.J. 224, 230

(C.A.A.F. 2017) (citation omitted).

15a

2. Analysis

The Government introduced sufficient evidence for

a rational trier of fact to find Appellant guilty of

abusive sexual contact by kissing MC as charged.

First, MC provided clear testimony that Appellant

kissed her on the mouth with his lips and tongue in

her vehicle in Albuquerque on the night of 12 August

2018. As described by MC, Appellant did so by

suddenly coming out of his seat, putting his hands on

her shoulders, and pushing her against the window of

her vehicle. Her testimony was reinforced by evidence

of several substantially consistent statements MC

made to her spouse TC and three other friends and

confidants within several weeks of the incident. In

addition, the Government introduced messages after

the incident wherein Appellant admitted kissing MC

with his tongue.

Moreover, the trier of fact could reasonably

conclude MC did not consent, and therefore Appellant

committed the contact by causing bodily harm. MC

testified Appellant had never engaged in such

behavior with her before, and that she did not consent

on this occasion. Additionally, the trier of fact could

conclude Appellant did not have a reasonable mistake

of fact that MC consented. MC testified she did not

reciprocate or respond positively to Appellant’s

unexpected verbal and physical advances that

preceded the kiss. In order to kiss her, Appellant

pushed her against the window of her vehicle with his

hands. Even after MC pushed Appellant off her and

told him to stop, Appellant moved toward her again

and MC had to push him away again.

Furthermore, the trier of fact could easily find

Appellant kissed MC with the intent to gratify his

16a

sexual desires. The nature of the act—kissing MC on

the mouth and inserting his tongue—suggests sexual

gratification. Moreover, Appellant preceded this act

with several comments indicating his sexual interest

and fantasies regarding MC. Even without taking into

account MC’s testimony that Appellant also forced MC

to touch his genitalia and put his hand on her breast

and genitalia—conduct of which the military judge

found Appellant not guilty—the Government

introduced ample evidence to show that Appellant’s

motive in kissing MC was his sexual gratification.

Appellant attacks MC’s credibility, which he

describes as “the sole issue in the case,” and contends

the Government failed to prove Appellant kissed MC

without consent. We do not find his arguments

persuasive.

As at trial, Appellant focuses considerable

attention on the voice messages MC left on Appellant’s

phone on 14 August 2018, which were introduced in

evidence. It is true that the tone of these scripted

messages was hopeful and conciliatory rather than

angry or accusatory. However, as MC explained at

trial, this was because at that point MC sought to

“work through” the incident to preserve important

longstanding

family

relationships.

Although

relatively friendly, MC’s messages nevertheless

conveyed surprise and disapproval of his actions,

rather than consensual participation. We do not find

these messages significantly undercut MC’s trial

testimony.

Appellant cites TC’s testimony that he did not

notice anything unusual about MC after she got out of

the vehicle on 12 August 2018. Appellant contends

TC’s testimony undercuts MC’s testimony that she

17a

was frightened and upset after the incident with

Appellant. However, TC’s testimony merely suggests

MC successfully concealed her distress from TC that

night, as she evidently intended. This is not

particularly surprising because when TC went to the

garage that night, he was not anticipating trouble,

MC or Appellant had just told him everything was all

right, and MC went to bed and avoided speaking with

TC any further that night.

Appellant contends MC had a strong motive to

fabricate her version of events to conceal any

consensual behavior with Appellant in order to protect

her marriage to TC. However, this argument is

somewhat undermined by the fact MC herself

revealed the incident to TC the following day, when

she potentially could have concealed it indefinitely. In

any event, we find MC’s understandable concern for

how this incident with Appellant, her brother-in-law,

would affect her marriage does not cast substantial

doubt on the Government’s proof, to include MC’s

clear testimony and Appellant’s apologies and

admissions.

Accordingly, drawing every reasonable inference

from the evidence of record in favor of the

Government, we conclude the evidence was legally

sufficient to support Appellant’s conviction.

Additionally, having weighed the evidence in the

record of trial, and having made allowances for the

fact that the trial judge personally observed the

witnesses, we also find the evidence factually

sufficient.

18a

B. Prior Consistent Statements

1. Additional Background

Trial defense counsel’s cross-examination of MC

elicited, inter alia, that by August 2019 Appellant had

threatened TC’s career and that Appellant had

accused MC and TC of blackmailing him. Trial

defense counsel further suggested through his

questioning that MC’s Internet search history

indicated that in December 2019, MC was concerned

Appellant might be chosen to lead the newly

established United States Space Force, although MC’s

responses did not indorse that suggestion.

On direct examination, TC described what MC said

on 13 August 2018 when she first told him about what

Appellant had done the night before. TC testified MC

told him that Appellant “had pushed [MC] against the

car door and forced his tongue down her throat. And

had -- had grabbed for -- grabbed for her breasts, and

also said some -- she relayed some of the things that

[Appellant] had said that were very hurtful to me.”

Trial defense counsel’s cross-examination of TC

included the following colloquy:

Q. [TC], when was the last time you

talked to your wife about her testimony?

A. I have not talked to her about her

testimony, other than to ask how it went

or how she feels. Q. And when was that?

A. Today.

Q. You’ve been sitting in the same room

as her today, right?

A. Yes.

Q. You did so yesterday as well?

19a

A. Yes.

Over the Defense’s objection, trial counsel

subsequently elicited testimony from several

witnesses regarding pretrial statements TC and MC

had made about the alleged offenses. We summarize

each of these in turn.

Special Agent (SA) GL was an OSI agent who was

present at an interview with TC in December 2019.

SA GL laid the foundation for Prosecution Exhibit

(PE) 26, a disc containing an audiovisual recording of

a portion of that interview. When trial counsel moved

to admit PE 26, the Defense objected on the basis of

hearsay. In response, trial counsel argued the

recording was admissible as a prior consistent

statement, citing trial defense counsel’s crossexamination as to whether TC had discussed MC’s

testimony with her and had sat together with her

during the trial. In response, trial defense counsel

argued TC’s statement in the interview was not

consistent with TC’s testimony and did not rebut an

implication of improper influence on TC’s testimony.

The military judge sustained the Defense’s objection

in part and overruled it in part. She found trial

defense counsel’s questions “were an effort to imply a

recent fabrication of [TC] about presence with the

prior witness [MC] [and] discussion of testimony.” She

ruled that a 27-second portion of the recorded

interview was admissible as a prior consistent

statement by TC, and the other portions of PE 26 were

excluded. In the admitted portion of the recording, TC

states that MC initially told him Appellant had

pushed MC against the vehicle window, kissed her

and put his tongue in her mouth, and tried to touch

her “inappropriately” before MC pushed Appellant off

her.

20a

The Government called DH, one of the family

friends who attended the barbeque on 12 August 2018.

DH testified, inter alia, that “several weeks” after the

barbeque TC and MC invited DH and his spouse, DM,

to brunch. Trial counsel asked DH what MC told him

at the brunch about what had happened on 12 August

2018; trial defense counsel objected to hearsay. When

the military judge initially sustained the hearsay

objection, trial counsel explained the Government

sought to introduce this testimony as a prior

consistent statement to counter “a series of motives to

lie” the Defense had raised. Trial counsel cited trial

defense counsel’s suggestions that MC was concerned

about Appellant leading the Space Force in December

2019, as well as Appellant’s threats to TC’s career and

allegations of blackmail in summer 2019. The military

judge eventually overruled the objection, holding that

she “will consider that to as consideration of the

motives to fabricate raised in the August, spring,

winter, 2019 career blackmail allegations.” DH then

testified MC told him Appellant “had attempted to

kiss her and pushed her against the door of the car,

and she had had to forcefully push him away.”

The Government then called DM, DH’s spouse,

who also attended the brunch with TC and MC.

Similar to what had occurred when DH testified, the

military judge overruled a defense hearsay objection

to DM’s testimony regarding what MC told him about

the night of 12 August 2018, as a prior consistent

statement by MC. DM testified MC said Appellant

“put his hand on top of her hand on the gearshift, and

made a comment — a suggestive comment. And she

said she pulled her hand away and tried to make light

of it. And then that he then tried to forcefully kiss her

and pushed her against the car.”

21a

The Government later called CM, another friend of

MC and a member of the clergy. CM testified that he

met with MC in a coffee shop in Albuquerque at her

request on 22 August 2018. Once again, the military

judge overruled a defense hearsay objection and

permitted the witness to testify to MC’s description of

Appellant’s actions on 12 August 2018 as a prior

consistent statement. CM testified MC told him, inter

alia,

there was some conversation about how

that [MC] really — that [Appellant]

knew [MC] had always wanted him and

that she needed a real man. And that he

began to, sort of, touch her across the

seats, either her hand or her leg, I can’t

remember. And that [MC] was kind of

trying to rebuff all of that and was kind

of shocked by what was going on.

When they got back to the house, he

attacked her, forcibly kissed her, touched

her, and kind of pinned her against the

side — her side of the car, if I remember

correctly. And she was able to kind of

push him off, beat him off, and get out of

the car.

2. Law

We review a military judge’s decision to admit

evidence for an abuse of discretion. United States v.

Finch, 79 M.J. 389, 394 (C.A.A.F. 2020) (citing United

States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019)). “A

military judge abuses his discretion when his findings

of fact are clearly erroneous, the court’s decision is

influenced by an erroneous view of the law, or the

military judge’s decision on the issue at hand is

22a

outside the range of choices reasonably arising from

the applicable facts and the law.” United States v.

Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013) (citation

omitted). “[T]he abuse of discretion standard is strict,

‘calling for more than a mere difference of opinion. The

challenged action must be arbitrary, fanciful, clearly

unreasonable, or clearly erroneous.’” United States v.

Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017) (quoting

United States v. McElhaney, 54 M.J. 120, 130

(C.A.A.F. 2000)).

Hearsay is generally inadmissible unless an

exception applies. Mil. R. Evid. 802. However, Mil. R.

Evid. 801(d)(1)(B) provides that a statement is not

hearsay if it “is consistent with the declarant’s

testimony and is offered: (i) to rebut an express or

implied charge that the declarant recently fabricated

it or acted from a recent improper influence or motive

in so testifying; or (ii) to rehabilitate the declarant’s

credibility as a witness when attacked on another

ground.”

The United States Court of Appeals for the Armed

Forces (CAAF) has identified three criteria for out-ofcourt statements to be admissible as a non-hearsay

prior consistent statement under Mil. R. Evid.

801(d)(1)(B)(i): “(1) the declarant of the statement

must testify and must be subject to cross-examination

about the prior statement; (2) the statement must be

consistent with the declarant’s testimony; and (3) the

statement must be offered ‘to rebut an express or

implied charge that the declarant recently fabricated

it or acted from a recent improper influence or motive

in testifying.’” Frost, 79 M.J. at 109–10 (quoting Mil.

R. Evid. 801(d)(1)(B)(i)). In addition, “the prior

statement . . . must precede any motive to fabricate or

improper influence that it is offered to rebut,” and

23a

“where multiple motives to fabricate or multiple

improper influences are asserted, the statement need

not precede all such motives or inferences, but only

the one it is offered to rebut.” Id. at 110 (citations

omitted). The prior consistent statement need not be

identical to the witness’s testimony in order to be

admissible under Mil. R. Evid. 801(d)(1)(B), provided

it is “for the most part consistent” and “consistent with

respect to . . . fact[s] of central importance to the trial.”

Finch, 79 M.J. at 395 (quoting United States v. Vest,

842 F.2d 1319, 1329 (1st Cir. 1988)) (omission and

alteration in original).

3. Analysis

Appellant contends the military judge abused her

discretion by admitting a portion of PE 26 and the

portions of the testimony of DH, DM, and CM

described above as prior consistent statements by TC

and MC. We disagree.

With respect to PE 26, the military judge could

reasonably conclude trial defense counsel’s questions

to TC about sitting together with MC during the courtmartial tended to suggest an improper influence on

his testimony. The admitted portion of PE 26 was from

TC’s OSI interview in December 2019, long before

TC’s trial testimony in April 2022. Moreover, TC’s

statements to OSI were substantially consistent with

TC’s testimony about what MC had told him

regarding the charged offenses and the facts of central

importance to the trial.

With respect to the testimony of DH, DM, and CM,

in each case the military judge could reasonably

conclude trial defense counsel’s cross-examination

elicited a possible improper influence arising as of the

summer of 2019, when Appellant threatened TC’s

24a

career and accused MC and TC of blackmailing him.

The witnesses described MC’s statements to them as

occurring within several weeks of 12 August 2018,

long before the summer of 2019. In addition, in each

case the admitted testimony regarding MC’s prior

statements, although not identical to MC’s testimony,

was consistent regarding particular facts of central

importance to the trial, notably including that

Appellant pushed MC against the side of the vehicle

and attempted to kiss her or did kiss her without her

consent.

Appellant argues that there is a distinction

between a motive to fabricate and a motive to report.

He notes that the Defense’s theory at trial was that

Appellant and MC kissed consensually, and that MC’s

motive to claim it was nonconsensual in order to

protect her marriage to TC arose immediately on 12

August 2018. He acknowledges that MC claimed to

several people that the event was nonconsensual long

before the summer of 2019 and TC’s OSI interview in

December 2019. However, MC and TC chose not to

report the alleged offenses for more than a year, until

after Appellant accused them of blackmail and

threatened TC’s career. At that point, Appellant

reasons, MC’s claim was not a new fabrication, but

simply the repetition of an existing false account.

We are not persuaded by Appellant’s distinction. A

prior consistent statement is not required to precede

every motive to fabricate or other improper influence.

The military judge could have reasonably concluded

that every time MC or TC made a new statement, it

was subject to being affected by improper influences

that had arisen after the previous statement was

made. To the extent the prior statement is consistent

with the later statement, the prior statement tends to

25a

counteract the implication of an improper influence.

Even if the Defense’s theory was that MC had already

made a false allegation, any subsequent statements

could be influenced by intervening events, including

threats to TC’s career and allegations that MC and TC

were engaging in blackmail.

Appellant also contends the testimony of DH and

DM regarding MC’s prior statements is not consistent

with MC’s testimony, in that DH and DM recall MC

stating only that Appellant “attempted” or “tried” to

kiss her, rather than actually kissed her. This is

perhaps a distinction, but not technically an

inconsistency. MC testified to the effect that

Appellant attempted to kiss her and succeeded. DH

and DM did not describe MC telling them that

Appellant failed to kiss her, which would have been

inconsistent with MC’s testimony. Moreover, in a

situation where one person kisses another without

consent and is pushed away, one might describe the

incident as an attempted kiss that was not

reciprocated. In any event, without engaging in

further hair-splitting, we find the testimony of DH

and DM regarding MC’s prior statement sufficiently

similar to MC’s testimony that the military judge’s

ruling was not “arbitrary, fanciful, clearly

unreasonable, or clearly erroneous.” See Erikson, 76

M.J. at 234 (citation omitted). Accordingly, we find the

military judge did not abuse her discretion.

C. Cross-Examination of Prosecution Witness

1. Additional Background

On 28 January 2021, TC underwent an OSI

polygraph examination and interview related to his

civilian employment at AFRL and not directly related

to the investigation of Appellant. At one point during

26a

that interview, TC commented on income tax returns

he filed with his wife, MC. TC stated, inter alia, MC

was “very aggressive, I’ll kind of fault her” when it

came to taking income tax deductions. TC further

stated his “comfort zone was not [wa]s not where [his]

wife and [he] have ended up on filing taxes.” Trial

counsel disclosed these statements to trial defense

counsel before Appellant’s court-martial.

At trial, during trial defense counsel’s crossexamination of TC, the following colloquy occurred:

Q [Civilian Defense Counsel (CDC)]:

[TC], in that same [OSI] interview, you

also opined that your wife is an

aggressive liar?

CTC [Circuit Trial Counsel]: Objection,

Your Honor. Hearsay.

MJ [Military Judge]: You may ask it

another way, sustained.

Q: [TC], you believe -- it is your opinion

that your wife is an aggressive liar?

[TC]: No.

Q: Isn’t it true that in January of 20 -excuse me, 2021, during an interview

with the [OSI], that you said, when it

came to things that are false, that your

wife is very aggressive and you’ll fault

her?

CTC: Objection, Your Honor. Hearsay.

And I’d add improper impeachment, as

well Your Honor. The witness said his

opinion is that -- he said no to the

question whether or not his opinion was

27a

that his wife is an aggressive liar, and

this certainly doesn’t impeach that.

MJ: Defense, do you wish to be heard?

CDC: Your Honor, it impeaches that this

very witness, during an interview with

[OSI], made an official statement with

the words to the effect that his wife is

very aggressive when it comes to filing

things that are false. So he has

previously stated that it is his belief,

effectively, that his wife -- it is his

opinion, that his wife is an aggressive

liar.

MJ: The way you framed the question,

sustained. If you can ask it another way,

counsel, you can get there.

....

Q. [TC], in that interview that I’ve just

been discussing, did you in fact say an

investigator would say it’s false, my wife

is very aggressive. I’ll fault her. She

wants to be very aggressive on those

things.

CTC: Objection, Your Honor. Improper

impeachment, hearsay.

MJ: Defense?

CDC: Your Honor, it’s not an improper

impeachment. It is a prior statement

made by this witness and all I’m asking

him [is] if, in fact, he did say that at a

prior point in time.

28a

CTC: Which is exactly the definition of

hearsay, Your Honor. And it is not -- it is

not a statement that he previously made.

If this witness had previously just prior

to this court had said in an interview, my

opinion is that my wife is an aggressive

liar, that would be a prior inconsistent

statement, with the direct statement

that he made in court today that his wife

is not in response to defense counsel

questions. That is not what defense

counsel that is offering here. It’s very

clearly identified by their statement. I

think defense counsel’s own argument

that no, we want to -- this -- this is not

improper impeachment, we just want to

offer this witness’ own prior statement

that has nothing to do with specifically

the opinion about whether or not his wife

is an aggressive liar, Your Honor.

MJ: Defense, do you wish to be heard any

further?

CDC: No, Your Honor.

MJ: Sustained.

At that point, trial defense counsel moved on to a

different line of questioning.

2. Law

“We review a military judge’s decision to admit or

exclude evidence for an abuse of discretion.” Erikson,

76 M.J. at 234 (citation omitted). “A military judge

abuses his discretion when his findings of fact are

clearly erroneous, the court’s decision is influenced by

an erroneous view of the law, or the military judge’s

29a

decision on the issue at hand is outside the range of

choices reasonably arising from the applicable facts

and the law.” Kelly, 72 M.J. at 242 (citation omitted).

“The abuse of discretion standard is a strict one,

calling for more than just a difference of opinion. The

challenged action must be arbitrary, fanciful, clearly

unreasonable, or clearly erroneous.” United States v.

Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (citation

omitted).

“The process of impeachment by prior inconsistent

statement is a tool to attack the credibility and/or

recollection of a witness. ‘By showing selfcontradiction, the witness can be discredited as a

person capable of error.’” United States v. Harrow, 65

M.J. 190, 199 (C.A.A.F. 2007) (quoting United States

v. Banker, 15 M.J. 207, 210 (C.M.A. 1983)) (additional

citation omitted). “The impeachment power of a priorinconsistent-statement rule of evidence arises from

the conflict between a witness’ statements.” United

States v. Damatta-Olivera, 37 M.J. 474, 477 (C.M.A.

1993) (citation omitted). “A military judge has

considerable discretion to determine if the trial

testimony is inconsistent with a prior statement.”

Harrow, 65 M.J. at 200 (citing Damatta-Olivera, 37

M.J. at 478) (additional citation omitted).

Whether an error is harmless is a question of law

we review de novo. United States v. Bowen, 76 M.J. 83,

87 (C.A.A.F. 2017) (quoting United States v.

McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)). “For

nonconstitutional errors, the Government must

demonstrate that the error did not have a substantial

influence on the findings.” Id. (quoting McCollum, 58

M.J. at 342). “We evaluate the harmlessness of an

evidentiary ruling by weighing: ‘(1) the strength of the

Government’s case, (2) the strength of the defense

30a

case, (3) the materiality of the evidence in question,

and (4) the quality of the evidence in question.’” Id. at

89 (quoting United States v. Kerr, 51 M.J. 401, 405

(C.A.A.F. 1999)).

3. Analysis

Appellant contends the military judge abused her

discretion by sustaining trial counsel’s objections to

cross-examination about TC’s prior statements to OSI

regarding MC with respect to their tax returns.

Appellant contends such evidence would have been

admissible under two theories: as evidence of TC’s

bias toward MC under Mil. R. Evid. 608(c), and as a

prior inconsistent statement to impeach TC’s

testimony. We find Appellant is not entitled to relief.

Beginning with evidence of bias under Mil. R. Evid.

608(c), this was not the basis trial defense counsel

argued to the military judge at trial. Trial defense

counsel specifically argued impeachment of TC’s

testimony. Based on the totality of the circumstances,

we do not find the military judge abused her discretion

by failing to allow questioning based on the rationale

which was not presented to her.

With respect to impeaching TC’s testimony, TC

testified he did not have the opinion that his wife MC

was “an aggressive liar.” Trial defense counsel then

asked whether TC had told OSI, “[W]hen it came to

things that are false, that your wife is very aggressive

and you’ll fault her.” Trial counsel objected on the

grounds that TC’s purported statement to OSI was

hearsay, and that it did not impeach TC’s statement

that he did not have the opinion that MC was an

aggressive liar. As to hearsay, if trial defense counsel

was eliciting TC’s statement to OSI in order to

impeach TC’s testimony, rather than for the truth of

31a

the matter asserted, then it would not be hearsay. See

Mil. R. Evid. 801(c)(2). However, TC’s purported

statement to OSI that “when it came to things that are

false, [MC] [wa]s very aggressive” is sufficiently

distinct from whether TC held the opinion that MC

was “an aggressive liar” that we do not find the

military judge’s preclusion of the question on

impeachment grounds was “arbitrary, fanciful, clearly

unreasonable, or clearly erroneous.” Solomon, 72 M.J.

at 179. Likewise, we find trial defense counsel’s

subsequent question as to whether TC told OSI, “an

investigator would say it’s false, my wife is very

aggressive. I’ll fault her. She wants to be very

aggressive on those things,” was sufficiently

dissimilar from an opinion that MC is “an aggressive

liar” that we find the military judge did not abuse her

discretion in sustaining the objection.

Moreover, assuming for purposes of analysis that

the military judge did abuse her discretion by

sustaining the Government’s objection to this

impeachment evidence, we find Appellant suffered no

material prejudice to his substantial rights.

Considering the Kerr factors, we find the rulings had

no substantial influence on the findings. See Bowen,

76 M.J. at 89 (citation omitted). In light of MC’s clear

testimony, her prior consistent statements close in

time to the offense, and Appellant’s apologies and

admissions, we find the Government’s case was

relatively strong and the Defense’s case relatively

weak. We further find the materiality of the excluded

testimony to be negligible. The Defense’s basis for

introducing the excluded testimony was to impeach

TC’s testimony—which trial defense counsel elicited—

that TC did not have the opinion that MC was an

aggressive liar. To the extent the excluded questions

32a

had any tendency to undermine TC’s absence of an

opinion that MC was an aggressive liar, that nonopinion was of scant significance in the broader scope

of the entire court-martial. Finally, the quality of the

evidence—commentary specifically about MC’s

approach to income taxes that had only implied, if

any, significance to TC’s opinion whether MC was an

aggressive liar in general— was, for purposes of

factfinding in Appellant’s court-martial, low.

Accordingly, assuming arguendo the military judge

erred, Appellant is entitled to no relief.

D. Judicial Notice

1. Additional Background

During presentencing proceedings, trial defense

counsel requested the military judge take judicial

notice of a matter of domestic law. Specifically, the

Defense requested the military judge take judicial

notice of Article 120(g)(2)(B), UCMJ, 10 U.S.C. §

920(g)(2)(B), that was in effect prior to 1 January

2019, and Article 120(g)(2)(B), UCMJ, 10 U.S.C. §

920(g)(2)(B), that became effective on 1 January 2019.

Trial defense counsel argued the change in the law

was an appropriate matter in mitigation for the

military judge to consider, explaining:

[T]he reason why it’s relevant in this

particular case, Your Honor, is because,

effectively, Your Honor, as the law

stands

today,

the

offense

that

[Appellant] now stands convicted of is no

longer an offense under Article 120, thus

not a sexual offense. And that would be

appropriate for this court’s consideration

in determining what an appropriate

sentence is as of today.

33a

....

It’s relevant and appropriate for the

court to consider that this offense, were

it done a few months later, or thinking

about it a different way, done today,

would be an assault consummated by a

battery. Which has a six month

maximum.[ 9] And so, when the court is

making a determination about what is

an appropriate sentence today, an

understanding of the state of the law and

the priorities that the Air Force as

determined by Congress can be and

should be viewed differently.

The Government opposed the defense request for

judicial notice, contending that the change to Article

120, UCMJ, which occurred after Appellant’s offense

was not relevant to his court-martial.

The military judge denied the request. She

explained:

The duty of this court in sentencing is to

provide a proper sentence for the offense

of which the accused has been found

guilty under the law in which he has

been found guilty for. That does not

include laws that have changed since

then or that existed prior to that. He was

convicted of the offense that occurred on

or about 12 August 2018 under the law

that was applicable at that time. The

passage of time did not change that. The

9 See 10 U.S.C. § 928; Manual for Courts-Martial, United States

(2019 ed.), Part IV, ¶ 77.d.(2)(a).

34a

court will only consider the law that was

applicable then and declines to take

judicial notice, as the law that was in

effect on 1 January 2019 is not relevant

to that issue. The court will not consider

it as such.

2. Law

“The military judge may take judicial notice of

domestic law. If a domestic law is a fact that is of

consequence to the determination of the action, the

procedural requirements of Mil. R. Evid. 201—except

Rule 201(f)—apply.” Mil. R. Evid. 202(a).

“The military judge . . . must take judicial notice if

a party requests it and the military judge is supplied

with the necessary information.” Mil. R. Evid.

201(c)(2).

“We will review a military judge's decision whether

to take judicial notice for an abuse of discretion.”

United States v. Lutes, 72 M.J. 530, 533 (A.F. Ct.

Crim. App. 2013) (citation omitted).

“Evidence is relevant if: (a) it has any tendency to

make a fact more or less probable than it would be

without the evidence; and (b) the fact is of

consequence in determining the action.” Mil. R. Evid.

401. Relevant evidence is generally admissible, unless

another provision of law provides otherwise;

irrelevant evidence is not admissible. Mil. R. Evid.

402.

Prior to 1 January 2019, 10 U.S.C. § 920(g)(2)(B)

provided that the term “sexual contact” included “any

touching . . . either directly or through the clothing,

[of] any body part of any person, if done with an intent

to arouse or gratify the sexual desire of any person.”

35a

As of 1 January 2019, 10 U.S.C. § 920(g)(2) provides

the term “sexual contact” means touching, directly or

through clothing, specifically enumerated body parts,

including the “vulva, penis, scrotum, anus, groin,

breast, inner thigh, or buttocks of any person, with an

intent to abuse, humiliate, harass, or degrade any

person or arouse or gratify the sexual desire of any

person.”

3. Analysis

Appellant contends the military judge abused her

discretion by denying the Defense’s request for

judicial notice of the change to Article 120(g)(2),

UCMJ, effective 1 January 2019. He argues

Congress’s decision that a kiss on the mouth should

no longer qualify as abusive sexual contact under

Article 120, UCMJ, was an appropriate matter in

mitigation, and that Mil. R. Evid. 201(c) required the

military judge to take judicial notice once the Defense

provided her with the “necessary information”—that

is, the law in question. Appellant further contends he

was prejudiced by the error in light of the severity of

his sentence and the compelling mitigating nature of

the change in the law.

We find the military judge did not abuse her

discretion. Mil. R. Evid. 202 and 201(c) would have

required the military judge to take judicial notice only

if the change in the law was “of consequence to the

determination of the action.” The military judge could

reasonably conclude the only version of Article 120,

UCMJ, that was of consequence to Appellant’s

sentencing was the version that was in effect based on

the date of the offense. We do not find the military

judge’s conclusion that she would only consider the

law applicable to Appellant’s offense to be “arbitrary,

36a

fanciful, clearly unreasonable, or clearly erroneous.”

Solomon, 72 M.J. at 179.

E. Sentence Severity

1. Law

Courts of Criminal Appeals review issues of

sentence appropriateness de novo. United States v.

Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (footnote omitted).

We may affirm only as much of the sentence as we find

correct in law and fact and determine should be

approved on the basis of the entire record. Article

66(d), UCMJ, 10 U.S.C. § 866(d). “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). We are required “to review the

appropriateness of each punishment in the adjudged

sentence.” United States v. Flores, 84 M.J. 277, 281

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

The Eighth Amendment 10 prohibits the imposition

of “excessive fines.” “The Excessive Fines Clause thus

‘limits the [G]overnment’s power to extract payments,

whether in cash or in kind, ‘as punishment for some

offense.’ Forfeitures – payments in kind – are thus

10 U. S. CONST. amend. VIII.

37a

‘fines’ [within the meaning of the Eighth Amendment]

if they constitute punishment for an offense.” United

States v. Bajakajian, 524 U.S. 321, 334 (1998) (quoting

Austin v. United States, 509 U.S. 602, 609–10 (1993));

see also United States v. Reed, 54 M.J. 37, 44 (C.A.A.F.

2000) (citing Bajakajian). “The touchstone of the

constitutional inquiry under the Excessive Fines

Clause is the principle of proportionality: The amount

of the forfeiture must bear some relationship to the

gravity of the offense that it is designed to punish.”

United States v. Stebbins, 61 M.J. 366, 373 (C.A.A.F.

2005) (quoting Bajakajian, 524 U.S. at 334). A fine

violates the Eighth Amendment if it is “grossly

disproportionate” to the offense. Id. (quoting

Bajakajian, 524 U.S. at 334). “This proportionality

analysis under the Excessive Fines Clause is

conducted on a case-by-case basis and is

distinguishable from the determination of sentence

appropriateness required by Article 66[, UCMJ].” Id.

(citation omitted).

2. Analysis

Appellant contends the adjudged forfeiture of

$10,910.00 pay per month for five months is both

inappropriately severe, as a matter of our Article 66,

UCMJ, sentence appropriateness review, and

unconstitutional under the Excessive Fines Clause of

the Eighth Amendment. Appellant cites, inter alia, his

lengthy service; his strong sentencing case, including

character letters and numerous decorations and

awards; and his apologies to MC and others. He also

cites the change to the UCMJ, as described above with

respect to the military judge’s ruling on judicial notice,

to the effect that if Appellant had kissed MC on the

mouth after 1 January 2019, it would have been

punishable as an assault under Article 128, UCMJ,

38a

rather than abusive sexual contact under Article 120,

UCMJ. In a similar vein, he contends that under New

Mexico law his offense would have constituted only

the petty misdemeanor of battery, punishable by a

fine not to exceed $500.00. 11 See N.M.S.A. §§ 30-3-4;

31-19-1. Specifically with regard to the Eighth

Amendment,

Appellant

contends

“adjudged

forfeitures totaling $54,550.00 for a kiss on the mouth

that did not result in any physical injury” is

unconstitutional because it does not bear some

relationship to the gravity of the offense. See Stebbins,

61 M.J. at 373 (citing Bajakajian, 524 U.S. at 328).

We

do

not

find

Appellant’s

sentence

inappropriately severe. Appellant faced a maximum

imposable sentence that included a dismissal,

confinement for seven years, and total forfeiture of

pay and allowances, in addition to a reprimand.

Appellant’s sentence amounted to forfeiture of

approximately twothirds of his pay per month for five

months, and a reprimand. The total forfeiture,

although perhaps large in absolute terms, would not

in itself leave Appellant destitute in light of his pay

grade and allowances, and Appellant has not

identified any particular financial hardship as a result

of his sentence. Moreover, Appellant escaped the most

severe punishments available—punitive discharge

and confinement. That Appellant might have faced a

less severe maximum punishment had he been

charged in a different jurisdiction or at a later point in

time is of slight, if any, significance.

In addition, the military judge could reasonably

find several aggravating circumstances to the offense.

Appellant declines to mention such offenses are also

punishable by up to six months in jail. N.M.S.A. § 31-19-1.

11

39a

Appellant was married at the time, and his victim,

MC, was his brother’s spouse. After MC attempted to

discourage Appellant’s sexual advances, he

accomplished the kiss by suddenly grabbing MC by

the shoulders and forcing her against the vehicle

window. Appellant not only kissed MC with his lips,

but penetrated her mouth with his tongue. After MC

pushed Appellant off her and told him to stop, he

moved toward her again, forcing MC to push him

away a second time.

F. Post-Trial and Appellate Delay

Appellant’s record of trial was docketed with this

court on 1 May 2023. On the same day, Appellant

moved this court to compel the production of a

verbatim transcript of the court-martial proceedings,

which the Government opposed. On 27 May 2023, the

Government moved this court to dismiss the appeal

for lack of jurisdiction; Appellant opposed the

motion. 12 On 7 July 2023, this court denied the

Government’s motion to dismiss, granted Appellant’s

motion to compel a verbatim transcript, and ordered

the Government to prepare and deliver a certified

verbatim transcript. On 22 August 2023, this court

denied a government motion to reconsider its denial of

the motion to dismiss. On 6 December 2023 and 11

January 2024, this court granted the Government’s

motions to attach the unsealed and sealed portions of

the transcript, respectively.

Thereafter, Appellant requested and was granted

12 enlargements of time to file his assignments of

error, over the Government’s opposition, before filing

12 As to this issue, see generally United States v. Vanzant, 84 M.J.

671, 673–80 (A.F. Ct. Crim. App. 2024), rev. granted, 85 M.J. 198

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

40a

his brief on 21 March 2025. The Government

requested and received two enlargements of time,

without defense objection, before filing its answer

brief on 22 May 2025, and Appellant filed a reply brief

on 29 May 2025.

“[C]onvicted servicemembers have a due process

right to timely review and appeal of courts-martial

convictions.” United States v. Moreno, 63 M.J. 129,

135 (C.A.A.F. 2006) (citations omitted). In Moreno, the

CAAF established a presumption of facially

unreasonable delay “where appellate review is not

completed and a decision is not rendered within

eighteen months of docketing the case before the

Court of Criminal Appeals.” Id. at 142. Where there is

a facially unreasonable delay, we examine 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 [to the

appellant].” Moreno, 63 M.J. at 135 (citations

omitted). The CAAF identified three types of

cognizable prejudice for purposes of an appellant’s due

process right to timely post-trial review: (1) oppressive

incarceration; (2) “particularized” anxiety and concern

“that is distinguishable from the normal anxiety

experienced by prisoners awaiting an appellate

decision;” and (3) impairment of the appellant’s

grounds for appeal or ability to present a defense at a

rehearing. Id. at 138–40 (citations omitted). Where

there is no qualifying 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). We review de novo an appellant’s

41a

entitlement to relief for post-trial delay. United States

v. Livak, 80 M.J. 631, 633 (A.F. Ct. Crim. App. 2020)

(citing Moreno, 63 M.J. at 135).

Over 18 months have elapsed since Appellant’s

record of trial was originally docketed with this

court. 13 Therefore, under Moreno, there is a facially

unreasonable delay. Accordingly, we have considered

the Barker factors and find no violation of Appellant’s

due process rights. Appellant was not confined and

has not alleged any particularized prejudice from the

delay, and we perceive none. Absent prejudice, we find

the delay involved in Appellant’s case has not been so

egregious as to adversely affect the perception of the

military justice system. The delay is primarily

attributable to two causes: the Government’s

13 We do not find a facially unreasonable delay in the post-trial

processing of Appellant’s case before docketing. In United States

v. Livak, this court established an aggregated 150-day

sentencing-to-docketing threshold for facially unreasonable

delay in cases that were referred to trial on or after 1 January

2019. 80 M.J. 631, 633 (A.F. Ct. Crim. App. 2020). However, in

light of subsequent statutory changes, this court recently found

the 150-day threshold established in Livak does not apply to

appeals, such as Appellant’s, submitted under Article

66(b)(1)(A), UCMJ, 10 U.S.C. § 866(b)(1)(A), and filed after

Congress amended Articles 66 and 69, UCMJ, 10 U.S.C. §§ 866,

869, effective 23 December 2022. See The National Defense

Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263,

544(b)(1)(A), (B), 135 Stat. 2395, 2582–84 (23 Dec. 2022); United

States v. Boren, No. ACM 40296 (f rev), 2025 CCA LEXIS 103, at

*47 (A.F. Ct. Crim. App. 19 Mar. 2025) (unpub. op.). However, in

such cases we still review whether pre-docketing delay is facially

unreasonable and warrants relief. See United States v. Copp, No.

ACM 24029, 2025 CCA LEXIS 290, at *14 (A.F. Ct. Crim. App.

27

42a

production of a verbatim transcript, and Appellant’s

12 motions for enlargements of time in which to file

his assignments of error. With regard to the verbatim

transcript, we find the delay was substantial but not

egregious. It took approximately six months from this

court’s 7 July 2023 order to produce the transcript

until the Government delivered the complete

transcript. However, the Government may have

delayed its compliance until after this court denied its

motion for reconsideration on 22 August 2023. In

addition, the transcript was lengthy at over 1,600

pages. With regard to Appellant’s 12 enlargements of

time, these were granted at the Defense’s request and

over the Government’s objection. We note Appellant

was represented by retained civilian appellate defense

counsel as well as detailed military appellate defense

counsel throughout this period. Furthermore, we note

the court is issuing its opinion within two months of

receiving Appellant’s reply brief. Considering the

circumstances as a whole, we do not find the delay so

egregious as to undermine public confidence in the

military justice system.

Finally, we do not find relief for excessive delay

pursuant to our statutory authority under Article

66(d)(2), UCMJ, 10 U.S.C. § 866(d)(2), is warranted.

III. CONCLUSION

The findings and sentence as entered 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).

Jun. 2025) (unpub. op.). Appellant’s case became eligible for

appeal to this court on 23 December 2022, when the amendments

43a

to Articles 66 and 69, UCMJ, went into effect. Appellant filed his

notice of appeal with this court on 30 April 2023, and this court

docketed his case the following day. We do not find any facially

unreasonable pre-docketing delay attributable to the

Government.

Accordingly,

AFFIRMED.

the

findings and sentence

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

are