Petition for Writ of Certiorari — Deshawn M. Dawson, Petitioner v. United States

Supreme Court briefOct 3, 2025

Ask Donna

What actually matters in this document.

Text

No. ______

IN THE

Supreme Court of the United States

__________

DESHAWN M. DAWSON and

JORGE A. ARIZPE,

Petitioners,

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

FREDERICK J. JOHNSON

TREVOR N. WARD

Air Force Appellate Defense Div.

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

DWIGHT H. SULLIVAN

Counsel of Record

Air Force Appellate Defense Div.

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

dwight.sullivan.1@us.af.mil

Counsel for Petitioners

QUESTION PRESENTED

In Ramos v. Louisiana, 590 U.S. 83 (2020), this

Court held that the Sixth Amendment’s right to a

“trial . . . by an impartial jury,” as incorporated by the

Fourteenth Amendment’s Due Process Clause,

requires that criminal convictions adjudged by juries

be unanimous not just in federal civilian courts, but in

state courts as well.

Service members and civilians prosecuted under

the Uniform Code of Military Justice, in contrast, can

be convicted by a three-fourths vote of a court-martial

panel of lay members. This rule applies not only to

allegations of military-specific offenses, but also to

trials for alleged common-law crimes unrelated to

military service. Often, the only thing depriving a

court-martial defendant of the protection of a

unanimous verdict requirement is the sovereign’s

choice of the forum in which to prosecute.

The Question Presented is:

Does the Constitution preclude a court-martial

panel of lay members from convicting a defendant of a

criminal offense by a non-unanimous vote?

PARTIES TO THE PROCEEDING

This Rule 12.4 petition consolidates appeals from

two service members convicted by court-martial.

Petitioners are Deshawn M. Dawson and Jorge A.

Arizpe.

Respondent in both petitioners’ cases is the United

States.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

Other than the direct appeals that form the basis

for this petition, there are no related proceedings for

purposes of S. CT. R. 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

PARTIES TO THE PROCEEDING ...................................... ii

CORPORATE DISCLOSURE STATEMENT.......................... ii

RELATED PROCEEDINGS ............................................... ii

TABLE OF AUTHORITIES ................................................ v

INTRODUCTION ............................................................. 1

DECISIONS BELOW ........................................................ 6

JURISDICTION ............................................................... 7

CONSTITUTIONAL. STATUTORY, AND REGULATORY

PROVISIONS INVOLVED ................................................. 7

STATEMENT OF THE CASE ............................................. 8

REASONS FOR GRANTING THE PETITION ..................... 10

COURT-MARTIAL DEFENDANTS’ RIGHT TO

UNANIMOUS CONVICTIONS FOLLOWS FROM

THEIR RIGHT TO A “FAIR AND IMPARTIAL”

PANEL .............................................................. 12

A. As Ramos makes clear, unanimous

convictions are central to impartiality..... 13

B. Ramos’s protection of impartiality is equally

important in courts-martial as in civilian

courts ......................................................... 16

1. History does not justify the current

military

justice

system,

which

substantially departs from founding-era

courts-martial ...................................... 17

2. Other procedural safeguards in the

military justice system do not make up

for the possibility of conviction by a

nonunanimous verdict ......................... 25

II.

WHETHER CONVICTIONS BY COURT-MARTIAL

PANELS MUST BE UNANIMOUS IS A QUESTION OF

EXCEPTIONAL IMPORTANCE ............................. 28

III. THERE IS NO REASONABLE PROSPECT THAT THIS

ISSUE WILL BE FURTHER DEVELOPED WITHIN

THE FEDERAL JUDICIARY ................................. 31

CONCLUSION .............................................................. 33

APPENDIX

Dawson

C.A.A.F. Order Denying Review (July 17, 2025) ..... 1a

Air Force Court of Criminal Appeals Decision

(Apr. 28, 2025) ................................................ 2a

Arizpe

C.A.A.F. Decision (July 22, 2025) .......................... 32a

C.A.A.F. Order Granting Review (May 30, 2025).. 33a

Air Force Court of Criminal Appeals Decision

(MAR. 19, 2025) ............................................ 35a

Constitutional, Statutory, and Regulatory Provisions

Invovled ....................................................... 57a

TABLE OF AUTHORITIES

Cases

Anderson v. United States,

144 S. Ct. 1003 (2024) (mem.)................................. 3

Ballew v. Georgia,

435 U.S. 223 (1978) ............................................... 16

Burch v. Louisiana,

441 U.S. 130 (1979) ............................................... 16

Burns v. Wilson,

346 U.S. 137 (1953) ............................................... 32

Cunningham v. United States,

144 S. Ct. 1096 (2024) (mem.)................................. 3

Edwards v. Vannoy,

593 U.S. 255 (2021) ................................................. 5

Edwards v. Villalpando,

No. 24-CV-1502, 2025 U.S. Dist.

LEXIS 51845, 2025 WL 874785 (S.D.

Cal. Mar. 19, 2025) ................................................ 32

Ellis v. Payne,

No. 23-3075, 2024 U.S. Dist. LEXIS

121935 (D. Kan. July 11, 2024) ............................ 32

Emas v. Roman,

No. 23-cv-2194, 2024 U.S. Dist. LEXIS

193806, 2024 WL 4573755 (S.D. Cal.

Oct. 24, 2024)......................................................... 32

Evitts v. Lucey,

469 U.S. 387 (1985) ............................................... 15

Grafton v. United States,

206 U.S. 222 (1907) ........................................... 6, 23

Khan v. Anderson,

255 U.S. 1 (1921) ................................................... 10

Lexington v. Payne,

No. 23-3162, 2024 U.S. Dist. LEXIS

119048, 2024 WL 3328584 (D. Kan.

July 8, 2024), appeal docketed, No. 243128 (10th Cir. Aug. 24, 2024) .............................. 32

Martinez v. United States,

144 S. Ct. 1000 (2024) (mem.)................................. 3

Middendorf v. Henry,

425 U.S. 25 (1976) ....................................... 5, 10, 15

Morris v. Payne,

No. 23-3133, 2024 U.S. Dist. LEXIS

120854, 2024 WL 3360512 (D. Kan.

July 9, 2024), appeal docketed, No. 243107 (10th Cir. Aug. 2, 2024) ................................ 32

Ortiz v. United States,

585 U.S. 427 (2018) ................................................. 1

Pueblo v. Torres-Rivera,

204 P.R. Dec. 288 (2020) ......................................... 1

Ramos v. Louisiana,

590 U.S. 83 (2020) .......................................... passim

Solorio v. United States,

483 U.S. 435 (1987) ......................................... 17, 19

Swaim v. United States,

165 U.S. 553 (1897) ............................................... 24

United States v. Acevedo,

50 M.J. 169 (C.A.A.F. 1999) .................................. 27

United States v. Ali,

71 M.J. 256 (C.A.A.F. 2012) .................................. 31

vii

United States v. Anderson,

83 M.J. 291 (C.A.A.F. 2023), cert.

denied, 144 S. Ct. 1003 (2024) ....................... passim

United States v. Averette,

19 C.M.A. 363 (1970) ............................................. 30

United States v. Berry,

34 M.J. 83 (C.M.A. 1992) ...................................... 13

United States v. Crawford,

15 C.M.A. 31 (1964) ............................................... 13

United States v. Deain,

5 C.M.A. 44 (1954) ................................................. 13

United States v. Jones,

37 M.J. 321 (C.M.A. 1992) .................................... 13

United States v. Lawson,

16 M.J. 38 (C.M.A. 1983) ...................................... 15

United States v. Mayo,

No. ARMY 20140901, 2017 CCA

LEXIS 239 (A. Ct. Crim. App. Apr. 7,

2017) ...................................................................... 14

United States v. Modesto,

43 M.J. 315 (C.A.A.F. 1995) .................................. 13

United States v. Ohrt,

28 M.J. 301 (C.M.A. 1989) .................................... 27

United States v. Richardson,

61 M.J. 113 (C.A.A.F. 2005) .................................. 11

United States v. Wheeler,

85 M.J. 70 (C.A.A.F. 2024), cert.

denied, No. 24-678, 93 U.S.L.W. 3329

(U.S. June 2, 2025) .......................................... 28–29

United States v. Wiesen,

56 M.J. 172 (C.A.A.F. 2001) .................................. 11

viii

Weiss v. United States,

510 U.S. 163 (1994) ......................... 5, 10, 15, 16, 21

Wilkinson v. Austin,

545 U.S. 209 (2005) ............................................... 15

Constitutional Provisions and Statutes

U.S. CONST.

amend. V ............................. i, 5, 8, 10, 14, 15, 25, 33

amend. VI ....................................................... i, 8, 10

amend. XIV ......................................................... i, 10

An Act for establishing Rules and

Articles for the government of the

Armies of the United States,

art. 69, ch. 20, 2 Stat. 359, 368 (1806).................. 11

An Act for the better government of the

Navy of the United States,

art. 43 ch. 33, 2 Stat. 45, 50 (1800)....................... 11

An Act to recognize and adapt to the

Constitution of the United States the

establishment of the Troops raised

under the Resolves of the United

States in Congress assembled, and for

other purposes therein mentioned, ch.

25, 1 Stat. 95 (1789) .............................................. 22

An Act for the Government of the Navy

of the United States,

art. 48, ch. 24, 1 Stat. 709, 713 (1799).................. 11

AM. SAM. CODE ANN. § 3.0232 (2025) ......................... 1

Articles of May 31, 1786,

30 J. CONT’L CONG. 316 (1906 ed.) ........................ 22

Articles of War (1776),

§ XIV, art. 3, 5 J. CONT’L CONG. 788,

801 (1776) (1906 ed.) ............................................. 11

§ XVIII, art. 5, 5 J. CONT’L CONG. 788,

807 (1776) (1906 ed.) ............................................. 17

Articles of War (1916),

art. 74, Pub. L. No. 64-242, 39 Stat.

619, 662.................................................................. 18

Articles of War (1920),

art. 43, Pub. L. No. 66-242, 41 Stat.

758, 795.................................................................. 22

CAL. MIL. & VET. CODE § 102f (2025) ......................... 2

8 GUAM CODE ANN. § 105.30 (2025)............................ 1

James M. Inhofe National Defense

Authorization Act for Fiscal Year

2023, Pub. L. No. 117-263, 136 Stat. 2395

(2022) ................................................................ 21–22

John

Warner

National

Defense

Authorization Act for Fiscal Year

2007, Pub. L. No. 109-364, 120 Stat. 2083

(2006) ..................................................................... 30

LA. CODE CRIM. PROC. ANN. art. 782(A)

(2013) ..................................................................... 23

Military Sex Offender Reporting Act of

2015, Pub. L. No. 114-22, 129 Stat.

227 ......................................................................... 20

National Defense Authorization Act for

Fiscal Year 1995, Pub. L. No. 103-337,

108 Stat. 2663 (1994) ............................................ 13

National Defense Authorization Act for

Fiscal Year 2014, Pub. L. No. 113-66,

127 Stat. 672 (2013) .............................................. 21

National Defense Authorization Act for

Fiscal Year 2017, Pub. L. No. 114-328,

130 Stat. 2000 (2016) ........................................ 5, 23

National Defense Authorization Act for

Fiscal Year 2022, Pub. L. No. 117-81,

135 Stat. 1541 (2021) ........................................ 9, 25

National Defense Authorization Act for

Fiscal Year 2024, Pub. L. No. 118-31,

137 Stat. 136 (2023) ................................................ 4

National Defense Authorization Act for

Fiscal Year 2025, Pub. L. No. 118-159,

138 Stat. 1773 (2024) .............................................. 4

OR. REV. STAT. § 136.450 (2013) ............................... 23

OR. REV. STAT. § 136.450 (2025) ............................... 23

Rules

and

Regulations

the

Continental Army,

art. XXXV, (1775), 2 J. CONT’L CONG.

111, 117 (1775) (1906 ed.) ..................................... 11

TEX. GOV’T CODE ANN. § 432.077 (2025) .................... 2

Uniform Code of Military Justice, Pub. L.

No. 81-506, 64 Stat. 107 (1950) ...................... 23, 30

10 U.S.C. §§

802 ....................................................... 3, 8, 9, 19, 30

805 ........................................................................... 3

816 ............................................................... 5, 28, 29

819 ......................................................................... 28

822 ......................................................................... 24

825 ......................................................................... 22

829 ........................................................................... 5

834 ......................................................................... 25

844 ........................................................................... 6

851 ......................................................................... 26

852 ............................................................. 2, 5, 6, 23

866 ......................................................................... 27

878–934 .................................................................. 18

885 ......................................................................... 19

890 ......................................................................... 19

894 ......................................................................... 19

903 ......................................................................... 31

903b........................................................................ 31

904a........................................................................ 31

918 ......................................................................... 19

919 ......................................................................... 19

920 ..................................................................... 9, 19

925 ......................................................................... 19

928 ........................................................................... 8

933 ........................................................................... 9

934 ......................................................................... 19

948c ........................................................................ 33

949m ......................................................... 1–2, 32–33

950g........................................................................ 32

18 U.S.C. §

922 ......................................................................... 20

28 U.S.C. §

1259.......................................................................... 7

32 U.S.C. §

326 ........................................................................... 2

34 U.S.C. §

20911...................................................................... 20

20915...................................................................... 20

William M. (Mac) Thornberry National

Defense Authorization Act for Fiscal

Year 2021, Pub. L. No. 116-283, 134

Stat. 3388 (2021) ............................................. 26–27

xii

Pending Legislation

H.R. 3838, Streamlining Procurement

for Effective Execution and Delivery

and National Defense Authorization

Act for Fiscal Year 2026, 119th

Congress, 1st Sess. .................................................. 4

S. 2296, National Defense Authorization

Act for Fiscal Year 2026, 119th

Congress, 1st Sess. .................................................. 4

Executive Orders, Regulations, and Rules

25 C.F.R. §

11.314....................................................................... 2

Exec. Order No. 13825 of Mar. 1, 2018,

83 Fed. Reg. 9889 (Mar. 8, 2018) .............................. 5

Exec. Order No. 14130 of Dec. 20, 2024,

89 Fed. Reg. 105343 (Dec. 27, 2024) ......................... 6

MANUAL FOR COURTS-MARTIAL, UNITED

STATES (1951 ed.)

¶ 74d(3) .................................................................. 23

MANUAL FOR COURTS-MARTIAL, UNITED

STATES (2024 ed.)

MIL. R. EVID. 509 ................................................. 8, 9

Pt. IV, ¶¶ 92-108 .................................................... 19

Rule for Courts-Martial 307 ..................................... 8

Rule for Courts-Martial 503 ................................... 22

Rule for Courts-Martial 921 ..................................... 6

Rule for Courts-Martial 922 ................................. 8, 9

N. MAR. I. R. CRIM. PROC. 31 ....................................... 1

V.I. R. CRIM. PROC. 31 ................................................. 1

xiii

Other Authorities

Andrew S. Effron, Military Justice: The

Continuing Importance of Historical

Perspective, ARMY LAW., June 2000, 1 .................. 17

Brief for the United States in Opposition,

Anderson

United

States,

144 S. Ct. 1003 (2024) (No. 23-437)

(filed Dec. 27, 2023) ................................................. 4

Brief for the United States in Opposition,

Cunningham

United

States,

144 S. Ct. 1096 (2024) (No. 23-666)

(filed Feb. 20, 2024) ................................................. 4

Brief for the United States in Opposition,

Martinez

United

States,

144 S. Ct. 1000 (2024) (No. 23-242)

(filed Dec. 27, 2023) ................................................. 4

Committee on the Uniform Code of

Military Justice, Good Order and

Discipline in the Army, Report to

Honorable

Wilber

Brucker,

Secretary of the Army (Jan. 18, 1960)................... 12

David A. Schlueter, The Military Justice

Conundrum: Justice or Discipline?,

215 MIL. L. REV. 1 (2013) ...................................... 12

David B. Sentelle, National Security

Law: More Questions than Answers, 31

FLA. ST. U.L. REV. 1 (2003) ................................... 31

xiv

Defense Manpower Data Center,

Active Duty Military Strength by

Service for June 30, 2025, available at

https://dwp.dmdc.osd.mil/dwp/api/dow

nloadZ?fileId=138349&groupName=

milTop ...................................................................2–3

Defense Manpower Data Center,

Selected Reserves by Rank/Grade,

June 30, 20025, available at

https://dwp.dmdc.osd.mil/dwp/api/dow

nloadZ?fileId=138352&groupName=r

esRankGrade ........................................................... 3

Dep’t of Defense,

Combined Service FY 24 146a Reports,

available

https://jsc.defense.gov/Portals/99/Com

bined%20Service%20FY24%20146a%

20Reports_1.pdf..................................................... 29

Dep’t of Defense,

Joint Service Committee’s Report on

the Adoption of Unanimous Verdicts in

the Uniform Code of Military Justice in

Accordance with Section 536 of the

National Defense Authorization Act for

Fiscal Year 2024 (Nov. 2024),

available

https://www.nimj.org/caaflog/jsc-onunanimous-verdicts#/ ........................................ 4, 14

Dep’t of Defense Office of the Actuary,

Statistical Report on the Military

Retirement System, Fiscal Year Ended

September 30, 2022 (October 2023),

available

https://media.defense.gov/2023/Oct/06

/2003315292/-1/1/0/MRS%20STATRPT%202022%20V

999.PDF ................................................................... 3

Frederick Bernays Wiener, American

Military Law in the Light of the First

Mutiny Act’s Tricentennial, 126 MIL. L.

REV. 1 (1989) ......................................................... 21

Frederick Bernays Wiener, CourtsMartial and the Bill of Rights: The

Original Practice I, 72 HARV. L. REV. 1

(1958) ............................................................... 17, 18

Jill S. Levenson, Alissa R. Ackerman,

Kelly M. Socia & Andrew J. Harris,

Where for Art Thou? Transient Sex

Offenders and Residence Restrictions,

26 CRIM. JUST. POL’Y REV. 319 (2013)................... 20

Judicial Proceedings Panel Subcomm.,

Report on Barriers to the Fair

Administration of Military Justice in

Sexual Assault Cases 21 (May 12,

2017),

available

https://perma.cc/3HXZ-72K7 ........................... 23–24

xvi

Major David Thompson, Supporting

Victims of Sexual Misconduct: Three

Judge Advocate General’s CorpsDriven Solutions to Three Problems

Revealed

the

Fort

Hood

Independent

Review

Committee

Report, 101 TEX. L. REV. 653 (2023) ..................... 24

National Institute of Justice, Sex

Offender Residency Restrictions: How

Mapping Can Inform Policy (July

2008),

available

https://www.ojp.gov/pdffiles1/nij/2227

59.pdf ..................................................................... 20

Robert D. Duke & Howard S. Vogel, The

Constitution and the Standing Army:

Another Problem of Court-Martial

Jurisdiction, 13 VAND. L. REV. 435

(1960) ..................................................................... 18

U.S. GENERAL ACCOUNTING OFF.,

GAO/NSIAD-00-164,

CONTINGENCY

OPERATIONS: PROVIDING CRITICAL

CAPABILITIES POSES CHALLENGES

(2000) ................................................................ 30–31

Introduction

Petitioners were both serving in the United States

Air Force when they were tried by courts-martial.

Both challenged their convictions on the ground they

had a constitutional right to be convicted only upon a

unanimous vote of the court-martial panel that

decided their guilt or innocence. The United States Air

Force Court of Criminal Appeals (AFCCA) addressed

the issue in both cases, ruling against the claim based

on the decision of the United States Court of Appeals

for the Armed Forces (CAAF) in United States v.

Anderson, 83 M.J. 291 (C.A.A.F. 2023), cert. denied,

144 S. Ct. 1003 (2024). Pet. App. 5a, 38a. Both

Petitioners raised the issue before the CAAF, asking

that court to reconsider its Anderson decision. The

CAAF declined to address the issue in either

Petitioner’s case. Pet. App. 1a, 32a. 33a.

American criminal justice systems are nearly

unanimous on one procedural requirement: jury

verdicts imposing convictions in criminal cases

require unanimity. That rule now applies in every

civilian criminal justice system operated under the

authority of the federal, state, and territorial

governments. 1 But outlier systems remain. For

example, military commissions at Guantanamo Bay

may convict by a two-thirds vote of the members. 10

1 Every U.S. territory with its own criminal justice system

requires that criminal convictions rendered by juries be by

unanimous vote. AM. SAM. CODE ANN. § 3.0232(a) (2025); Pueblo

v. Torres-Rivera, 204 P.R. Dec. 288 (2020); 8 GUAM CODE ANN. §

105.30(a) (2025); N. MAR. I. R. CRIM. PROC. 31(a); V.I. R. CRIM.

PROC. 31(a). As this Court has previously noted, the “courtmartial system stands on much the same footing as the

territorial and District of Columbia courts.” Ortiz v. United

States, 585 U.S. 427, 443 (2018).

U.S.C. § 949m. Some states operate courts-martial

that permit conviction of non-federalized National

Guardsmen by a non-unanimous vote. 2 A threefourths jury vote is sufficient for a conviction in the

Courts of Indian Offences, 25 C.F.R. § 11.314(e); some

individual tribal courts may also permit convictions

by non-unanimous jury vote.

The largest post-Ramos outlier is the Uniform

Code of Military Justice (UCMJ) court-martial

system. For general and special courts-martial, a vote

of three-fourths of the panel’s lay members is

sufficient to convict. UCMJ art. 52, 10 U.S.C. § 852.

Roughly 1.33 million active-duty service members are

subject to that system at all times and in all places, as

are roughly 1.5 million active component retirees. 3

2 See generally 32 U.S.C. § 326 (“In the National Guard not in

Federal service, there are general, special, and summary courtsmartial constituted like similar courts of the Army and the Air

Force. They have the jurisdiction and powers, except as to

punishments, and shall follow the forms and procedures,

provided for those courts.”). Texas law, for example, provides for

conviction by a two-thirds vote of general or special court-martial

members. TEX. GOV’T CODE ANN. § 432.077 (2025). California

law, on the other hand, incorporates the Uniform Code of

Military Justice (UCMJ) to govern its courts-martial of nonfederalized National Guardsmen, thereby adopting a threefourths conviction threshold. CAL. MIL. & VET. CODE § 102f

(Deering 2025); see UCMJ art. 52, 10 U.S.C. § 852. The

constitutionality of non-unanimous court-martial convictions for

non-federalized National Guardsmen post-Ramos appears to

remain an open question.

3 Defense Manpower Data Center, Active Duty Military Strength

Service

for

June

30,

2025,

available

https://dwp.dmdc.osd.mil/dwp/api/downloadZ?fileId=138349&gr

oupName=milTop; Dep’t of Defense Office of the Actuary,

Statistical Report on the Military Retirement System, Fiscal Year

Ended September 30, 2022 at 55 (October 2023), available at

Another roughly 766,000 military reservists are

subject to the UCMJ on an intermittent basis. 4

Together, those groups exceed the individual

populations of 21 states, as well as the District of

Columbia. This Court should grant certiorari to

consider whether the Constitution allows the military

to continue to impose criminal convictions that could

lead to as much as confinement for life without

eligibility for parole based on a three-fourths vote of

lay factfinders.

Following the CAAF’s 2023 Anderson decision,

which found no constitutional right to unanimous

verdicts at courts-martial, this Court denied three

certiorari petitions challenging that ruling. 5 However,

an important development has occurred since those

denials that warrants this Court’s reexamination of

whether to review this issue.

In responding to one of the certiorari petitions

challenging the military justice system’s lack of a

unanimity requirement, the Solicitor General called

this Court’s attention to “[r]ecently enacted legislation

direct[ing] the Department of Defense to study and

https://media.defense.gov/2023/Oct/06/2003315292/-1/1/0/MRS%20STATRPT%202022%20V999.PDF. See also UCMJ

art. 2(a)(1), (4), (6), 10 U.S.C. § 802(a)(1), (4), (6); UCMJ art. 5,

10 U.S.C. § 805 (“This chapter applies in all places.”).

Defense Manpower Data Center, Selected Reserves by

Rank/Grade,

June

30,

20025,

available

https://dwp.dmdc.osd.mil/dwp/api/downloadZ?fileId=138352&gr

oupName=resRankGrade. See also UCMJ art. 2(a)(1), (3), 10

U.S.C. § 802(a)(1), (3).

5 Cunningham v. United States, 144 S. Ct. 1096 (2024) (mem.);

Anderson v. United States, 144 S. Ct. 1003 (2024) (mem.);

Martinez v. United States, 144 S. Ct. 1000 (2024) (mem.).

report to Congress within a year on the ‘feasibility and

advisability’ of requiring unanimous verdicts in

courts-martial.” Brief for the United States in

Opposition 24, Martinez v. United States, 144 S. Ct.

1000 (2024) (No. 23-242) (filed Dec. 27, 2023) (citing

National Defense Authorization Act (NDAA) for Fiscal

Year (FY) 2024, Pub. L. No. 118-31, § 536, 137 Stat.

136, 263 (2023)). The Solicitor General argued, “The

possibility of further legislative action in this area

counsels against granting certiorari at this time.” Id.

(emphasis added). 6

The Department of Defense has now issued that

report, recommending against adopting a unanimous

verdict requirement for courts-martial. 7 The NDAA

for FY 2025 did not include any provisions regarding

unanimous court-martial verdicts. NDAA for FY 2025,

Pub. L. No. 118-159, 138 Stat. 1773 (2024). Nor does

either the House or Senate version of the NDAA for

FY 2026 currently pending consideration in Congress.

H.R. 3838, Streamlining Procurement for Effective

Execution and Delivery and NDAA for FY 2026, 119th

Congress, 1st Sess.; S. 2296, NDAA for FY 2026, 119th

6 The Solicitor General made similar arguments when opposing

the other two certiorari petitions raising the court-martial

unanimous verdicts issue. Brief for the United States in

Opposition 2, Cunningham v. United States, 144 S. Ct. 1096 (No.

23-666) (filed Feb. 20, 2024); Brief for the United States in

Opposition 11, Anderson v. United States, 144 S. Ct. 1003 (2024)

(No. 23-437) (filed Dec. 27, 2023).

Dep’t of Defense, Joint Service Committee’s Report on the

Adoption of Unanimous Verdicts in the Uniform Code of Military

Justice in Accordance with Section 536 of the National Defense

Authorization Act for Fiscal Year 2024 (Nov. 2024), available at

https://www.nimj.org/caaflog/jsc-on-unanimous-verdicts#/

[hereinafter DoD Unanimous Verdicts Report].

Congress, 1st Sess. Thus, the factor the Solicitor

General identified in December 2023 as “counsel[ing]

against granting certiorari at this time” has been

overtaken by events. Granting certiorari to review the

constitutionality of the military justice system’s

departure from Ramos is appropriate at this time.

Unanimous convictions are inconsistent with

court-martial defendants’ Fifth Amendment right to

due process. In assessing Due Process Clause

challenges to military justice procedures, this Court

asks “whether the factors militating in favor of [a

procedure departing from the civilian norm] are so

extraordinarily weighty as to overcome the balance

struck by Congress.” Weiss v. United States, 510 U.S.

163, 177–78, 181 (1994) (quoting Middendorf v. Henry,

425 U.S. 25, 44 (1976)). Here, the right recognized by this

Court’s “momentous and consequential” Ramos decision,

Edwards v. Vannoy, 593 U.S. 255, 271 (2021), stands in

counterpoise to a court-martial procedure of recent

vintage that fails to protect the interests of not only

criminal defendants, but also crime victims, good order

and discipline, and society at large.

Under a system that took effect on January 1, 2019, 8

a three-fourths vote is required for a court-martial

conviction; any lesser vote results in a finding of not

8 The Military Justice Act of 2016, which was enacted as Division

E of the NDAA for FY 2017, changed the law governing courtmartial panel size and the voting requirements for a conviction. Pub.

L. No. 114-328, §§ 5161, 5187, 5235, 130 Stat. 2000, 2897, 2902, 2916

(2016) (codified as amended at 10 U.S.C. §§ 816, 829, 852). That act

generally delegated to the President the authority to establish the

effective date of its military justice reforms. Id., § 5542(a), 130 Stat.

at 2967. The president prescribed an effective date of January 1,

2019. Exec. Order No. 13825 of Mar. 1, 2018, § 3(a), 83 Fed. Reg.

9889, 9889 (Mar. 8, 2018).

guilty to which jeopardy attaches not only for courtmartial purposes, but also for purposes of all federal

criminal tribunals. UCMJ arts. 44, 52, 10 U.S.C. §§ 844,

852; Rule for Courts-Martial (R.C.M.) 921(c)(3), MANUAL

FOR COURTS-MARTIAL, UNITED STATES (2024 ed.);

Grafton v. United States, 206 U.S. 333 (1907). That

system deprives service members and civilians tried by

court-martial of the fundamental protection of a

unanimity requirement. But it also leads to the

irrational result that a general court-martial panel’s vote

of, for example, 5-2 to convict produces an acquittal to

which jeopardy attaches for purposes of every federal

criminal forum. This Court should grant certiorari to

consider whether that irrational system of recent

vintage passes constitutional muster.

DECISIONS BELOW

The AFCCA’s decision in Petitioner Dawson’s case

is not reported. It is available at 2025 CCA LEXIS

182, 2025 WL 1220166, and is reprinted in the

Appendix at Pet. App. 2a. The CAAF’s order denying

review is not yet reported. It is available at 2025

CAAF LEXIS 568, 2025 WL 2301865, and is reprinted

in the Appendix at Pet. App. 1a.

The AFCCA’s decision in Petitioner Arizpe’s case

is not reported. It is available at 2025 CCA LEXIS

104, 2025 WL 868652, and is reprinted in the

Appendix at Pet. App. 35a. The CAAF’s order granting

review of the case on an issue unrelated to unanimous

verdicts is not yet reported. It is available at 2025

CAAF LEXIS 423, 2025 WL 1640705, and is reprinted

in the Appendix at Pet. App. 33a. The CAAF’s order

summarily affirming the AFCCA’s decision is not yet

reported. It is available at 2025 CAAF LEXIS 613,

2025 WL 2305385, and is reprinted in the Appendix

at Pet. App. 32a.

JURISDICTION

The CAAF issued its order denying review of

Petitioner Dawson’s case on July 17, 2025. Pet. App.

1a. The CAAF summarily affirmed the AFCCA’s

decision in Petitioner Arizpe’s case on July 22, 2025.

Pet. App. 32a. This Court’s jurisdiction rests on 28

U.S.C. § 1259(3).

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED

The text of the following constitutional, statutory,

and regulatory provisions is set forth in the Appendix,

starting at 57a.

1. Due Process Clause of the Fifth Amendment, U.S.

CONST. amend. V.

2. Jury Trial Clause of the Sixth Amendment, U.S.

CONST. amend. VI.

3. Article 16, UCMJ, 10 U.S.C. § 816.

4. Article 51(a), UCMJ, 10 U.S.C. § 851(a).

5. Article 52(a), UCMJ, 10 U.S.C. § 852(a).

6. R.C.M. 921(c), MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2024 ed.).

Statement of the Case

Petitioner Deshawn M. Dawson was a senior

airman (E-4) in the United States Air Force at the

time of his court-martial. The court of first instance

exercised federal jurisdiction pursuant to Article

2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1). At a trial by

special court-martial, a four-member panel convicted

him, contrary to his pleas, of one charge and one

specification 9 of assault consummated by a battery in

violation of Article 128, UCMJ, 10 U.S.C. § 928. The

panel found him not guilty of one charge and two

specifications of abusive sexual contact. Because of

the military justice system’s prohibition against

polling the court-martial members, R.C.M. 922(e), and

the “deliberations of courts and juries” privilege, MIL.

R. EVID. 509, MANUAL FOR COURTS-MARTIAL, UNITED

STATES (2024 ed.), it is unknown and unknowable

whether Dawson was convicted of violating Article

128, UCMJ, by a vote of 3-1 or 4-0.

Dawson had moved in limine that any guilty

verdict be by a unanimous vote of the members, citing

the Due Process Clause of the Fifth Amendment, the

Jury Trial Clause of the Sixth Amendment, and this

Court’s Ramos decision. The trial judge denied that

motion and, following the members’ verdict, sentenced

Dawson to a reprimand, reduction to the grade of E-2,

forfeiture of $300 pay per month for two months, and

hard labor without confinement for 45 days. The

AFCCA affirmed the findings and the sentence,

9 In military practice, each charge is supported by one or more

specifications. “A specification is a plain, concise, and definite

statement of the essential facts constituting the offense charged.”

R.C.M. 307(c)(3).

expressly rejecting Dawson’s argument that he could

not be convicted by a non-unanimous vote of the

members. Pet. App. 5a. Dawson sought the CAAF’s

review of his case, raising the unanimity issue as well

as another unrelated legal challenge. The CAAF

denied review. Pet. App. 1a.

Petitioner Jorge A. Arizpe is a major (O-4) in the

United States Air Force. The court of first instance

exercised federal jurisdiction pursuant to Article

2(a)(1) of the UCMJ, 10 U.S.C. § 802(a)(1). At a trial

by general court-martial, an eight-member panel

convicted him, contrary to his pleas, of one charge and

one specification of abusive sexual contact in violation

of Article 120, UCMJ, 10 U.S.C. § 920, and one charge

and one specification of conduct unbecoming an officer

and a gentleman in violation of Article 133, UCMJ, 10

U.S.C. § 933. 10 Because of the military justice

system’s prohibition against polling the court-martial

members, R.C.M. 922(e), and the Military Rule of

Evidence 509 deliberations of courts and juries

privilege, it is unknown and unknowable whether

Arizpe was convicted of each of those offenses by a vote

of 6-2, 7-1, or 8-0.

Following the members’ verdict, the trial judge

sentenced Arizpe to a reprimand, forfeiture of $1,200

pay per month for two months, and confinement for 35

days. On appeal before the AFCCA, Arizpe challenged

his convictions based on, among other grounds, the

lack of a unanimity requirement for the panel

members’ vote to convict. The AFCCA ruled against

10 After the date of Petitioner Arizpe’s alleged offenses, Congress

renamed that punitive article, “Conduct unbecoming an officer.”

NDAA for FY 2022, Pub. L. No. 117-81, § 542, 135 Stat. 1541,

1709 (2021) (codified at UCMJ art 133, 10 U.S.C. § 933).

him on that issue, concluding that he “is not entitled

to relief,” citing the CAAF’s Anderson decision. Pet.

App. 38a. Arizpe then sought review from the CAAF,

raising the unanimity challenge as one of three issues.

The CAAF granted review of one of the other issues

and subsequently summarily affirmed the AFCCA’s

decision. Pet App. 32a, 33a.

REASONS FOR GRANTING THE PETITION

In Ramos, this Court held that the Fourteenth

Amendment’s Due Process Clause requires unanimity

for a jury verdict of guilty. This Court should grant

review to determine whether the Fifth Amendment’s

Due Process Clause similarly requires that a finding

of guilty by a lay panel of court-martial members be

by a unanimous vote.

This Court has held that the Fifth Amendment’s

Due Process Clause applies to the military justice

system, while noting that its application may be

different than in a civilian context. Weiss, 510 U.S. at

177–78; Henry, 425 U.S. at 44. On the other hand, this

Court has held that the Sixth Amendment’s Jury Trial

Clause does not apply at courts-martial. Kahn v.

Anderson, 255 U.S. 1, 8 (1921). Petitioners do not

argue otherwise. Indeed, the Sixth Amendment’s

Vicinage Clause, which requires that the jury be “of

the State and district wherein the crime shall have

been committed,” is not easily translatable to a

military context. Rather, Petitioners maintain that

they have a Fifth Amendment due process right to the

protection of those attributes of a jury that are crucial

to a criminal trial’s fairness. As Ramos establishes,

one of those key protections is a requirement for a

unanimous vote of lay members to convict.

Ramos makes clear that the right to a unanimous

conviction is an essential assurance of a jury panel’s

impartiality—a concern that is equally important in a

military as civilian adjudicative context.

From its beginning, the American military justice

system considered impartiality an essential attribute

of court-martial members. See, e.g., Article XXXV,

Rules and Regulations of the Continental Army, 2 J.

CONT’L CONG. 111, 117 (1775) (1906 ed.) (“All the

members of a court-martial, are to behave with

calmness, decency, and impartiality . . . .”); Articles of

War, § XIV, art. 3, 5 J. CONT’L CONG. 788, 801 (1776)

(1906 ed.) (requiring court-martial members to swear

to “administer justice . . . without partiality, favor, or

affection”) (italics deleted); An Act for the Government

of the Navy of the United States, art. 48, ch. 24, 1 Stat.

709, 713 (1799) (requiring naval court-martial

members to swear to “well and truly try and

impartially determine the cause of the prisoner now

to be tried”); An Act for the better government of the

Navy of the United States, art. 36, ch. 33, 2 Stat. 45,

50 (1800) (requiring naval court-martial members to

swear to “truly try, without prejudice or partiality, the

case now depending”); An Act for establishing Rules

and Articles for the government of the Armies of the

United States, art. 69, ch. 20, 2 Stat. 359, 368 (1806)

(requiring Army court-martial members to swear to

“administer justice . . . without partiality, favour, or

affection”). The CAAF itself—in a decision in

considerable tension with its later Anderson opinion—

stated that “[a]s a matter of due process, an accused

has a constitutional right, as well as a regulatory

right, to a fair and impartial panel.” United States v.

Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001); accord

United States v. Richardson, 61 M.J. 113, 118

(C.A.A.F. 2005). Thus, in courts-martial for which

Congress has extended a right to be tried by a panel,

the accused has a due process right to fairness and

impartiality—requirements that, after Ramos, can no

longer be satisfied by non-unanimous convictions.

The CAAF therefore erred in Anderson by refusing

to extend Ramos to courts-martial. Because that error

has profound implications for the vast majority of

general and special courts-martial going forward, the

petition for a writ of certiorari should be granted.

COURT-MARTIAL DEFENDANTS’ RIGHT TO

UNANIMOUS CONVICTIONS FOLLOWS FROM

THEIR RIGHT TO A “FAIR AND IMPARTIAL”

PANEL.

Military justice scholars have long debated

whether the system’s goal is to promote discipline or

justice. E.g., David A. Schlueter, The Military Justice

Conundrum: Justice or Discipline?, 215 MIL. L. REV. 1

(2013). For the modern U.S. context, a 1960 report by

a committee chaired by Lieutenant General Herbert

B. Powell, United States Army, provided the definitive

answer: “In the development of discipline, correction

of individuals is indispensable; in correction, fairness

or justice is indispensable. Thus, it is a mistake to talk

of balancing discipline and justice—the two are

inseparable. An unfair or unjust correction never

promotes that development of discipline.” Committee

on the Uniform Code of Military Justice, Good Order

and Discipline in the Army, Report to Honorable

Wilber M. Brucker, Secretary of the Army 11 (Jan. 18,

1960) (commonly known as the Powell Report). The

imperative that a military justice system be perceived

as both fair and effective is even more crucial in the

current all-volunteer armed forces context, in which a

perception of either railroading court-martial

defendants or failing to deliver justice to victims of

offenses such as intra-military sexual assault risks

harming recruiting. Yet the military justice system’s

current court-martial member voting requirements

degrade both actual fairness and the perception of

fairness.

A. As Ramos makes clear, unanimous

convictions

are

central

impartiality.

“Courts-martial must not only be fair but must

appear fair to effectively further the cause of good

order and discipline in the armed forces.” United

States v. Jones, 37 M.J. 321, 324 (C.M.A. 1993)

(quoting United States v. Berry, 34 M.J. 83, 88 (C.M.A.

1992)). 11 An impartial tribunal is a prerequisite for

such fairness and, consequently, for due process.

United States v. Crawford, 15 C.M.A. 31, 34 (1964);

United States v. Deain, 5 C.M.A. 44, 49 (1954)

(“Fairness and impartiality on the part of the triers of

fact constitute a cornerstone of American justice.”);

United States v. Modesto, 43 M.J. 315, 318 (C.A.A.F.

1995) (“Impartial court-members are a sine qua non

for a fair court-martial.”). Ramos recognized that

unanimous convictions are essential to ensure

impartiality, 590 U.S. at 90; accordingly, a courtmartial defendant who elects to be tried by a panel has

a Fifth Amendment due process right to be convicted

only upon a unanimous vote.

11 These

cases are CAAF precedents. The NDAA for FY 1995

renamed the United States Court of Military Appeals (C.M.A.)

the United States Court of Appeals for the Armed Forces

(C.A.A.F.). Pub. L. No. 103-337, § 924, 108 Stat. 2663, 2831

(1994).

The CAAF rejected this argument in Anderson not

by repudiating its longstanding case law regarding

the

imperative

for

court-martial

members’

impartiality, but by reading Ramos to not implicate it.

According to the CAAF, Ramos did not really link

unanimous convictions to impartiality. See, e.g.,

Anderson, 83 M.J. at 298 (disagreeing that Ramos

held that unanimity is “an essential element of an

impartial factfinder”).

The CAAF’s reading of Ramos denudes it of

analytical force. “[T]he text and structure of the

Constitution clearly suggest that the term ‘trial by an

impartial jury’ carried with it some meaning about the

content and requirements of a jury trial.” Ramos, 590

U.S. at 89. Because unanimity is, as Ramos held,

central to that meaning, the CAAF’s effort to untether

the two concepts fails.

Nor did the CAAF (or the United States in its

Anderson briefs) offer any good reason why

unanimous convictions might have different

ramifications for the impartiality of a civilian jury

versus a court-martial panel. Instead, defenses of the

practice have focused on unrelated justifications for a

lesser standard in courts-martial. Such defenses

include: (1) the possibility that requiring unanimous

convictions would open the door to rank disparities

among court-martial panel members influencing

verdicts, and (2) deference to Congress. Anderson, 83

M.J. at 298–99, 302; DoD Unanimous Verdicts Report,

supra note 7, at 29–30; United States v. Mayo, No.

ARMY 20140901, 2017 CCA LEXIS 239, at *20-22 (A.

Ct. Crim. App. Apr. 7, 2017). Neither concern

warrants insulating courts-martial from the

unanimous conviction requirement.

Current military appellate case law already risks

rank influencing cases’ outcomes by permitting panels

to hold straw votes before taking the one vote by secret

written ballot that decides the verdict. E.g., United

States v. Lawson, 16 M.J. 38 (C.M.A. 1983). Thus,

rank can already affect court-martial members’

deliberations, but without a unanimity requirement

to help constrain it.

Nor is deference to Congress sufficient to depart

from the civilian norm. For courts-martial in which

members are the factfinder, the procedures that

govern their decisions must comport with

fundamental notions of procedural fairness—because

criminal trials necessarily implicate the defendant’s

liberty. See, e.g., Wilkinson v. Austin, 545 U.S. 209,

221–24 (2005). Congress could not, for example, rely

upon a court-martial defendant’s lack of a

constitutional right to trial by jury to provide that a

panel will reach its verdict by flipping a coin. Cf. Evitts

v. Lucey, 469 U.S. 387, 393 (1985).

As this Court reiterated in Weiss, when it comes to

an accused’s procedural rights in a court-martial, the

relevant question under the Due Process Clause is

“‘whether the factors militating in favor of [the right]

are so extraordinarily weighty as to overcome the

balance struck by Congress.’” 510 U.S. at 177–78

(quoting Henry, 425 U.S. at 44). In Weiss, the

petitioners challenged whether they had a right to

have their courts-martial presided over by military

judges with fixed terms in office. In holding that the

Due Process Clause does not require fixed terms, this

Court expressly tied its analysis to the lack of a

connection between fixed terms and impartiality,

rejecting petitioners’ claim that “a military judge who

does not have a fixed term of office lacks the

independence necessary to ensure impartiality.” Id. at

178.

Ramos, in contrast, establishes the precise

connection that the Weiss petitioners could not.

Because unanimous verdicts are an essential aspect of

an impartial jury, Ramos, 590 U.S. at 91, unanimity

is equally necessary to achieve an impartial courtmartial panel. And ensuring impartiality in the

imposition of either civilian or military convictions is

an extraordinarily weighty concern.

Requiring unanimous convictions is even more

essential in those criminal justice systems, including

the military’s, that utilize panels with fewer than

twelve members in non-capital cases. See Ballew v.

Georgia, 435 U.S. 223, 234 (1978) (plurality opinion)

(“Statistical studies suggest that the risk of convicting

an innocent person . . . rises as the size of the jury

diminishes.”); see also Burch v. Louisiana, 441 U.S.

130 (1979) (six-member juries must be unanimous).

Such is the case here, where Petitioners’ panels had,

respectively, four and eight members.

Ramos’s protection of impartiality is

equally important in courts-martial

as in civilian courts.

In Anderson, the CAAF offered two responses to

these arguments. First, it relied on the long history of

non-unanimous convictions in courts-martial. See

Anderson, 83 M.J. at 298 (“historical evidence

establishes that for more than two centuries, courtsmartial verdicts have not been subject to a unanimity

requirement”). Second, it evoked other “safeguards”

that, in its view, adequately protect the interests that

unanimous convictions would otherwise serve. Id. at

299. Neither justification survives scrutiny.

1. History does not justify the current

military justice system, which

substantially

departs

from

founding-era courts-martial.

The historical analysis fails to justify the status

quo for five reasons. First, court-martial jurisdiction

over most common law offenses other than in time of

war is largely a modern phenomenon. Colonel

Frederick Bernays Wiener, the great mid-twentieth

century military justice scholar and frequent Supreme

Court advocate, 12 observed that “the scope of offenses

triable by courts-martial has been steadily

broadened.” Frederick Bernays Wiener, CourtsMartial and the Bill of Rights: The Original Practice

I, 72 HARV. L. REV. 1, 11 (1958). Some eighteenth and

nineteenth century courts-martial tried common law

offenses under the Articles of War’s “general

article.” 13 See Solorio v. United States, 483 U.S. 435,

444–45 (1987). But, significantly, the general article

“excluded from its scope all capital crimes, which

were, of course, considerably more numerous in the

12 See generally Andrew S. Effron, Military Justice: The

Continuing Importance of Historical Perspective, ARMY LAW.,

June 2000, 1, 4.

13 E.g., Articles of War, § XVIII, art. 5, 5 J. CONT’L CONG. 788, 807

(1776) (1906 ed.) (“All crimes not capital, and all disorders and

neglects which officers and soldiers may be guilty of, to the

prejudice of good order and military discipline, though not

mentioned in the above articles of war, are to be taken cognizance

of by a general or regimental court-martial, according to the

nature and degree of the offence, and be punished at their

discretion.”).

eighteenth century than at the present time.” Robert

D. Duke & Howard S. Vogel, The Constitution and the

Standing Army: Another Problem of Court-Martial

Jurisdiction, 13 VAND. L. REV. 435, 447 (1960).

Further constricting offenses that were subject to trial

by court-martial, “when a crime was committed

against a person wholly unconnected with a military

service, and no military order or rule of discipline was

violated in and by the act itself, such act would not

constitute a military offense.” Wiener, 72 HARV. L.

REV. at 11–12.

It was not until 1863 that Congress amended the

Articles of War to make “common-law felonies,

including capital ones, . . . punishable in time of war.”

Id. at 12 (emphasis added). “Next, beginning in 1916,

common-law felonies were made military offenses at

all times, except that murder and rape committed

within the continental United States in time of peace

could not be tried by court-martial.” Id. (internal

footnotes omitted). But “[i]n time of peace, soldiers

accused of civilian offenses were still required to be

turned over to the civil authorities on request.” Id.

(citing Article of War 74 of 1916, Pub. L. No. 64-242,

39 Stat. 619, 662). “Finally, in 1951, the Uniform Code

of Military Justice removed all existing limitations so

that even murder and rape committed by military

personnel in the United States were made triable by

court-martial at all times . . . .” Id.

The UCMJ now includes 92 punitive articles that

establish one or more criminal offense, 14

supplemented by 18 presidentially prescribed offenses

14 UCMJ arts. 78–134, 10 U.S.C. §§ 878–934.

under Article 134, UCMJ, the “General Article.” 15

Many of those offenses are of a type long tried by

courts-martial, such as desertion, willfully disobeying

a superior commissioned officer, and mutiny. UCMJ

arts. 85, 90, 94(a)(1), 10 U.S.C. §§ 885, 890, 894(a)(1).

But many others are of a sort that would typically

have been tried in civilian court if allegedly committed

by a Legion of the United States soldier, such as

murder, manslaughter, rape, and kidnapping. UCMJ

arts. 118, 119, 120, 125, 10 U.S.C. §§ 918, 919, 920,

925. Yet all those offenses may now be prosecuted by

court-martial whether they occur on or off a military

installation, regardless of whether the defendant was

on duty, on leave, or even retired from active service.

See generally UCMJ art. 2, 10 U.S.C. § 802. And all

those offenses may now be prosecuted by courtmartial even if neither the alleged offense nor the

alleged victim had any connection to the military. See

Solorio, 483 U.S. 435 (holding that the defendant’s

military status alone determines a court-martial’s

subject-matter jurisdiction). Thus, for many

allegations tried by general or special courts-martial

today, the defendant would have had a right to a

civilian jury trial, with its attendant unanimity

requirement, for most of this nation’s history. 16

Second, court-martial convictions now often have

consequences that persist long after the criminal

defendant returns to civilian life. For example,

Pt. IV, ¶¶ 92–108, MANUAL FOR COURTS-MARTIAL, UNITED

STATES (2024 ed.).

16 Other than in Louisiana from 1898 to 2020 and Oregon from

1934 to 2020, the unanimity requirement applied in U.S. federal

civilian and state criminal jury trials. See Ramos, 590 U.S. at 87;

id. at 126 n.86 (Kavanaugh, J., concurring).

because Petitioner Arizpe was convicted of abusive

sexual contact, he is subject not only to a 15-year sex

offender registration requirement, 17 but also the

myriad deprivations of liberty that arise from being a

registered sex offender. Most states restrict where

registered sex offenders may live, such as prohibiting

them from residing within a certain distance of

schools, parks, playgrounds, or day-care centers. See

generally Jill S. Levenson, Alissa R. Ackerman, Kelly

M. Socia & Andrew J. Harris, Where for Art Thou?

Transient Sex Offenders and Residence Restrictions,

26 CRIM. JUST. POL’Y REV. 319, 320 (2013). A

Department of Justice study found that such

restrictions “can create exclusion zones that make it

difficult, if not impossible, for sex offenders to find

housing.” National Institute of Justice, Sex Offender

Residency Restrictions: How Mapping Can Inform

Policy

(July

2008),

available

https://www.ojp.gov/pdffiles1/nij/222759.pdf.

Petitioner Arizpe is subject to such restrictions for

15 years because of a conviction that may have been

rendered over two dissenting votes. Some other courtmartial defendants are subject to lifelong sex offender

registration requirements and resulting deprivations

of liberty without the protection of a unanimous

verdict. 18 Petitioner Arizpe himself faces a lifelong

deprivation of a constitutional right arising from his

court-martial conviction: under 18 U.S.C. § 922(g)(1),

17 See Military Sex Offender Reporting Act of 2015, Pub. L. No.

114-22, §§ 501–02, 129 Stat. 227, 258; 34 U.S.C. § 20911

(establishing tier levels of sexual offenders); 34 U.S.C. § 20915

(prescribing duration of sex offender registration requirements).

18 See 34 U.S.C. § 20911 (requiring lifetime registration for tier

III offenders).

that conviction results in a lifetime ban on his

possession or acquisition of firearms or ammunition.

Lifelong deprivation of constitutional rights following

return to civilian status was not a feature of foundingera courts-martial.

Third, while the court-martial panel was originally

a command tool, it has evolved into a far more jurylike entity. This Court has observed that courtmartial “members’ responsibilities are analogous to,

but somewhat greater than, those of civilian juries.”

Weiss, 510 U.S. at 167 n.1. But for much of American

history, court-martial members’ actual authority was

far less than that of jurors. Court-martial panels’

findings were originally little more than advisory.

Convening authorities could disapprove a courtmartial’s result and return the case for a do-over—

even when the court-martial members voted for

acquittal. Frederick Bernays Wiener, American

Military Law in the Light of the First Mutiny Act’s

Tricentennial, 126 MIL. L. REV. 1, 20 (1989). Military

justice reforms gradually reduced that authority until

a 2013 statute eliminated the convening authority’s

power to set aside court-martial findings in most

cases. NDAA for FY 2014, Pub. L. No. 113-66, §

1702(b), 127 Stat. 672, 954 (2013).

It was not until 1948 that an enlisted service

member could serve on a court-martial panel. Wiener,

126 MIL. L. REV. at 30. A 2022 statute took yet another

step toward making a court-martial panel more

closely resemble a jury. The James M. Inhofe NDAA

for FY 2023 requires convening authorities to detail

court-martial members “under such regulations as the

President may prescribe for the randomized selection

of qualified personnel, to the maximum extent

practicable.” Pub. L. No. 117-263, § 543(a), 136 Stat.

2395, 2582 (2022) (codified as amended at 10 U.S.C. §

825(e)). To carry out that provision, the president

modified R.C.M. 503(a)(1), which governs the courtmartial selection process, to enhance randomization.

Exec. Order No. 14130 of Dec. 20, 2024, at § 2 and

Annex, § 1(r), 89 Fed. Reg. 105343, 105343, 105355–

56 (Dec. 27. 2024). As a result of those reforms

collectively, the court-martial panel now serves a far

more jury-like function and more closely resembles a

civilian jury than at the time of the founding.

Fourth, over time, American military justice has

devolved into an irrational system that fails to provide

defendants with the protection of unanimous verdicts

while also acquitting some accused criminals and

protecting them from retrial in any federal criminal

forum based on a minority vote of a court-martial’s

members. At the time of the Constitution’s adoption,

general courts-martial consisted of five to thirteen

commissioned officers, who rendered verdicts by a

simple majority vote. Articles of May 31, 1786, 30 J.

CONT’L CONG. 316 (1906 ed.) 19; Anderson, 83 M.J. at

298. For Army courts-martial, that continued to be the

rule until 1920, when a two-thirds’ vote was required

for findings of guilty other than for offenses with a

mandatory death sentence. Article of War 43, Pub. L.

No. 66-242, 41 Stat. 758, 795 (1920). For naval courtsmartial, a simple majority vote continued to decide a

19 The first Congress under the U.S. Constitution kept the 1786

articles of war in force. An Act to recognize and adapt to the

Constitution of the United States the establishment of the Troops

raised under the Resolves of the United States in Congress

assembled, and for other purposes therein mentioned, ch. 25, § 4,

1 Stat. 95, 96 (1789).

court-martial’s outcome until 1951. Anderson, 83 M.J.

at 298 n.6. When the UCMJ took effect that year, all

military services came under a two-thirds conviction

rule for any offense for which a death sentence was

not mandatory. UCMJ, art. 52, Pub. L. No. 81-506, 64

Stat. 107, 125 (1950). Any vote of two-thirds or more

of the members produced a conviction while any vote

less than two-thirds resulted in an acquittal. MANUAL

FOR COURTS-MARTIAL, UNITED STATES, ¶ 74d(3) (1951

ed.). That changed in 2019, when the Military Justice

Act of 2016’s reforms took effect. Under the new

provision, a three-fourths vote of the members

produces a conviction while any lesser vote results in

an acquittal to which jeopardy attaches as to all

criminal tribunals deriving their authority from the

federal government. NDAA for FY 2017, Pub. L. No.

114-328, § 5235, 130 Stat. at 2916 (codified at UCMJ

art. 52(a)(3), 10 U.S.C. § 852(a)(3)); Grafton, 206 U.S.

222. So, for example, a general court-martial’s vote of

5-2 to convict—a 71.4% vote for guilty—results in an

acquittal and bar to retrial in any federal criminal

forum. That is a far different regime than the pre-2019

Louisiana or pre-Ramos Oregon systems, in which a

vote of at least 10-2 was necessary to produce either a

conviction or an acquittal. OR. REV. STAT. § 136.450

(2013) 20; LA. CODE CRIM. PROC. ANN. art. 782(A)

(2013).

Many commentators have criticized the military

justice system’s high acquittal rate in sexual assault

cases. E.g., Judicial Proceedings Panel Subcomm.,

Report on Barriers to the Fair Administration of

Military Justice in Sexual Assault Cases 21 (May 12,

20 Oregon continues to allow acquittals by a 10-2 vote. Or. Rev.

Stat. § 136.450(2) (2025).

2017), available at https://perma.cc/3HXZ-72K7 (“The

low conviction rate tends to discredit the entire

military justice system in the eyes of Service members

and the general public.”); Major David Thompson,

Supporting Victims of Sexual Misconduct: Three

Judge Advocate General’s Corps-Driven Solutions to

Three Problems Revealed by the Fort Hood

Independent Review Committee Report, 101 TEX. L.

REV. 653, 655 (2023). Acquittals in cases where a

majority of panel members voted to convict—which

did not exist in the U.S. military justice system for

most of its history—are probably a significant factor

in that high acquittal rate. Thus, the current system

fails to protect court-martial defendants by exposing

them to conviction based on a non-unanimous vote

while also failing to protect victims, good order and

discipline, and society at large by producing acquittals

with a bar to retrial in any federal criminal forum in

some cases where most of the factfinders determined

that the defendant was guilty beyond a reasonable

doubt. This Court should grant review to evaluate

whether a court-martial defendant’s constitutional

rights prevail over the current irrational voting

scheme.

A final recent military justice reform also suggests

that the history of non-unanimous court-martial

convictions is irrelevant to the current statutory

scheme. For almost the entire history of the U.S.

military justice system, prosecutorial discretion fell

within the authority of military commanders or senior

Executive Branch officials who exercise civilian

control of the military. See, e.g., Swaim v. United

States, 165 U.S. 553, 558 (1897) (holding that the

President may convene a court-martial); UCMJ art.

22(a), 10 U.S.C. § 822(a). But now, for certain military

justice offenses committed after December 27, 2023—

including murder, manslaughter, rape, sexual

assault, stalking, and kidnapping—prosecutorial

discretion is exercised by military prosecutors known

as “special trial counsel.” See NDAA for FY 2022, 135

Stat. at 1692–99. Unlike traditional commander

convening authorities—who may not unilaterally

refer a charge for trial by a general court-martial—

such special trial counsel exercise unfettered

prosecutorial discretion. Contrast UCMJ art. 34(a), 10

U.S.C. § 834(a), with UCMJ art. 34(c), 10 U.S.C. §

834(c). Thus, the need for those subject to trial by

court-martial to be protected against an overzealous

prosecutor—which had never been a danger in the

court-martial system when military prosecutors were

vessels for exercising the convening authority’s will—

has now arisen for the first time. The Fifth

Amendment’s Due Process Clause guarantees

procedural protection against abuses by these newly

established unfettered military prosecutors. As this

Court indicated in Ramos, a unanimity requirement

is one such important procedural protection. See 590

U.S. at 99–100.

These five factors quiet history as a determinative

consideration in deciding whether a court-martial

defendant has a constitutional right not to be

convicted by a non-unanimous verdict.

2. Other procedural safeguards in the

military justice system do not make

up for the possibility of conviction

by a nonunanimous verdict.

The CAAF also sought to justify its result in

Anderson by noting other “safeguards” that, in its

view, adequately protect the same interests that

unanimous convictions are designed to achieve. 83

M.J. at 299. Specifically, the CAAF highlighted the

UCMJ’s secret-ballot requirement, “which protects

junior panel members from the influence of more

senior members.” Id. (citing UCMJ art. 51(a), 10

U.S.C. § 851(a)). It also flagged the availability of

“factual sufficiency review on appeal, ensuring panel

verdicts are subject to oversight.” Id.

But these “safeguards” hardly do anything to

vindicate military defendants’ interests that would be

served by a unanimous verdict requirement. While

secret ballots facilitate court-martial members voting

as their consciences dictate, it still leaves the accused

subject to conviction where one or (in a non-capital

general court-martial) two members’ consciences

dictate an acquittal. It is not apparent how the secret

ballot compensates for allowing a defendant to be

convicted despite some factfinders determining that

the prosecution failed to prove its case beyond a

reasonable doubt. Rather, the secret ballot merely

provides some limited protection against a uniquely

military problem—the threat of the influence of rank

in the deliberation room. (And, as noted above,

because of military appellate courts’ authorization of

straw votes, it does not even do a particularly good job

of that.) It does not compensate for the loss of the

protections a civilian criminal defendant enjoys

through the unanimous verdict requirement.

Nor is factual sufficiency review by the Courts of

Criminal Appeals a meaningful substitute for a

unanimous conviction requirement. First, as the

CAAF’s Anderson opinion acknowledges, 83 M.J. at

299 n.9, a 2021 statute curtailed the availability and

robustness of factual sufficiency review in the military

justice system. William M. (Mac) Thornberry NDAA

for FY 2021, Pub. L. No. 116-283, § 542(b), 134 Stat.

3388, 3611 (2021). Particularly significant was an

amendment of the statute governing factual

sufficiency review requiring a Court of Criminal

Appeals to accord “appropriate deference to the fact

that the trial court saw and heard the witnesses and

other evidence.” Id. (codified at UCMJ art.

66(d)(1)(B)(ii)(I), 10 U.S.C. § 866(d)(1)(B)(ii)(I)). Thus,

the Courts of Criminal Appeals must now give

deference to a possibly nonunanimous verdict below.

Second, a Court of Criminal Appeals’ determination

that a finding of guilty is factually sufficient need not

be unanimous. Rather, it makes a simple majority

determination of whether the evidence supporting a

finding of guilty is factually sufficient to prove guilt

beyond a reasonable doubt. 21 A procedure under

which a non-unanimous verdict may be affirmed by a

non-unanimous

appellate

court

according

“appropriate deference” to the non-unanimous triallevel factfinders does not place court-martial

defendants on equal footing with their counterparts in

federal and state civilian tribunals. Ramos would not

authorize a state to provide such “factual sufficiency”

review in lieu of a unanimity requirement for

convictions by juries. There is no reason why it should

suffice in the court-martial context.

21 The CAAF has left open the question of whether an evenly

divided Court of Criminal Appeals vote on factual sufficiency

results in an affirmance. United States v. Ohrt, 28 M.J. 301, 303

(C.M.A. 1989); see also United States v. Acevedo, 50 M.J. 169, 170

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

II.

WHETHER CONVICTIONS BY COURT-MARTIAL

PANELS MUST BE UNANIMOUS IS A QUESTION

OF EXCEPTIONAL IMPORTANCE.

The permissibility of court-martial convictions by

a non-unanimous vote of a panel of lay members is one

of the most significant issues to service members and

civilians who have been—or may in the future be—

tried by general or special courts-martial.

The question this petition presents implicates the

same fundamental constitutional issue that this

Court deemed necessary to resolve in Ramos but,

unlike in that case, arises in a manner unconstrained

by stare decisis. Petitioners do not ask this Court to

revisit whether court-martial defendants have a

constitutional right to be tried by a jury; the question

presented is more modest, but no less important:

whether, given the statutory right of defendants at a

general court-martial or non-Article 16(c)(2)(A)

special court-martial to be tried by a jury-like panel,

Ramos’s requirement for unanimous convictions

applies as a matter of due process. 22 After all, if

22 A standard special court-martial consists of a military judge

and four members or, if the accused chooses, a military judge

alone. UCMJ art. 16(c)(1), (2)(B), 10 U.S.C. § 816(c)(1), (2)(B).

Such courts-martial may impose punishments, if otherwise

authorized for the offense of which the accused is found guilty, of

confinement for up to a year and, in the case of an enlisted

accused, a bad-conduct discharge. UCMJ art. 19(a), 10 U.S.C. §

19(a). However, there is another form of special court-martial for

which the accused may not elect to be tried by members instead

of by a military judge alone. UCMJ art. 16(c)(2)(A), 10 U.S.C. §

16(c)(2)(A). Those special courts-martial may not impose

confinement for more than six months and may not impose a badconduct discharge. UCMJ art. 19(b), 10 U.S.C. § 19(b). Last year,

the CAAF rejected a constitutional challenge to the Article

16(c)(2)(A) special court-martial. United States v. Wheeler, 85

unanimous convictions are vital to the fairness and

impartiality of civilian criminal convictions, they are

equally essential in military courts, which often (as in

Petitioners’ cases) adjudicate allegations of the same

kinds of offenses tried in civilian criminal courts.

The applicability of a unanimity requirement to

convictions rendered by court-martial panels has

enormous implications for the entire military justice

system. It is axiomatic that non-unanimous

convictions are easier to obtain than unanimous

convictions. The possibility of a 6-2 or 7-1 conviction

by a non-capital general court-martial or 3-1

conviction by a special court-martial will often affect

a defendant’s statutory choice between trial by a panel

and trial by a “military judge alone,” as authorized by

Article 16(b)(3) and (c)(2)(B), UCMJ, 10 U.S.C.

§ 816(b)(3), (c)(2)(B). The question presented therefore

has implications not just for the roughly one-third of

general courts-martial tried to a panel, but for all noncapital general court-martial proceedings, as well as

all special court-martial proceedings other than those

under Article 16(c)(2)(A).

This issue is also compelling because it affects not

only the rights of service members, but also civilians

tried by courts-martial. From its inception, the UCMJ

M.J. 70 (C.A.A.F. 2024), cert. denied, No. 24-678, 93 U.S.L.W.

3329 (U.S. June 2, 2025). During FY 2024, the most recent year

for which statistics are available, the military services combined

held 632 general courts-martial, 382 standard special courtsmartial, and 79 Article 16(c)(2)(A) special courts-martial. Dep’t

of Defense, Combined Service FY 24 146a Reports, available at

https://jsc.defense.gov/Portals/99/Combined%20Service%20FY2

4%20146a%20Reports_1.pdf. Thus, in more than 92 percent of

general and special courts-martial, the defendant had the right

to be tried by a panel of members.

applied to civilians “serving with or accompanying an

armed force in the field” during a “time of declared

war.” UCMJ art. 2(10), 64 Stat. at 109 (codified as

amended at 10 U.S.C. § 802(a)(10)). The John Warner

NDAA for FY 2007 expanded that provision to also

apply to contingency operations. Pub. L. No. 109-364,

§ 551, 120 Stat. 2083, 2217 (2006) (codified at 10

U.S.C. § 802(a)(10)). Such contingency operations

occur with far greater frequency than declared wars. 23

Contingency operations include any “military

operation” that “is designated by the Secretary of

Defense as an operation in which members of the

armed forces are or may become involved in military

actions, operations, or hostilities against an enemy of

the United States or against an opposing military

force,” as well as any military operation that results

in the call or order to, or retention on, active duty of

service members during a national emergency

declared by the President or Congress. 10 U.S.C. §

101(a)(13). Compared to five declared wars in our

nation’s history, 24 the U.S. conducted more than 50

contingency operations just between the end of

Operation Desert Storm in 1991 and July 2000. U.S.

23 The Court of Military Appeals held that the version of Article

2(a)(10), UCMJ, that applied to civilians accompanying U.S.

forces in the field in time of war was limited to “a war formally

declared by Congress.” United States v. Averette, 19 C.M.A. 363,

365 (1970).

“Technically, there have been eleven declarations of war,

because both the world wars involved multiple declarations

against multiple enemies, but there have been only five declared

wars.” David B. Sentelle, National Security Law: More Questions

than Answers, 31 FLA. ST. U.L. REV. 1, 5 (2003). Those five are:

“(1) the War of 1812 against Great Britain; (2) the 1846 war with

Mexico; (3) the 1898 Spanish-American War; (4) World War I

beginning in 1917; and (5) World War II beginning in 1941.” Id.

GENERAL ACCOUNTING OFF., GAO/NSIAD-00-164,

CONTINGENCY OPERATIONS: PROVIDING CRITICAL

CAPABILITIES POSES CHALLENGES 3 (2000). In 2012,

the CAAF rejected a challenge to the court-martial

conviction of a civilian (albeit a non-U.S. citizen)

under UCMJ article 2(a)(10). United States v. Ali, 71

M.J. 256 (C.A.A.F. 2012).

In addition to that authority to court-martial

civilians accompanying the military in the field during

a contingency operation, all civilians are subject to

trial by court-martial for certain offenses. While most

UCMJ offenses apply only to those subject to the

UCMJ, three punitive articles apply to “[a]ny person”:

article 103 (“Spies), 10 U.S.C. § 903; article 103b

(“Aiding the enemy”), 10 U.S.C. § 903b; and article

104a (“Fraudulent enlistment, appointment, or

separation”), 10 U.S.C. § 904a. Aiding the enemy, in

particular, is subject to potentially expansive

application. While trial of civilians by court-martial in

the UCMJ era has thus far been rare, historical

prudential self-restraint is no guarantee of future

forbearance. This Court should consider the

constitutionally required procedural protections that

attach to the court-martial system before any uptick

in its use to prosecute civilians.

III. THERE IS NO REASONABLE PROSPECT THAT

THIS ISSUE WILL BE FURTHER DEVELOPED

WITHIN THE FEDERAL JUDICIARY.

While there is no split among the circuits, which is

often a precursor to this Court’s decision to review an

issue, there is no reasonable prospect that this issue

will be developed further within the federal judiciary.

With all signs pointing to Article III courts merely

deferring to the CAAF’s Anderson ruling upon

collateral review of court-martial convictions, this

Court’s assessment of whether Anderson was correctly

decided becomes even more imperative.

Since Anderson was decided, some convicted

service members have sought habeas relief from U.S.

district courts on the ground that their constitutional

rights were infringed by the possibility that their

court-martial convictions were adjudged by nonunanimous votes. Consistent with Burns v. Wilson,

346 U.S. 137 (1953) (plurality opinion), however, those

courts have held that because the issue was fully and

fairly considered within the military justice system, it

was not subject to relitigation upon habeas review.

Edwards v. Villalpando, No. 24-CV-1502, 2025 U.S.

Dist. LEXIS 51845, 2025 WL 874785 (S.D. Cal. Mar.

19, 2025); Emas v. Roman, No. 23-cv-2194, 2024 U.S.

Dist. LEXIS 193806, 2024 WL 4573755 (S.D. Cal. Oct.

24, 2024); Ellis v. Payne, No. 23-3075, 2024 U.S. Dist.

LEXIS 121935 (D. Kan. July 11, 2024); Morris v.

Payne, No. 23-3133, 2024 U.S. Dist. LEXIS 120854,

2024 WL 3360512 (D. Kan. July 9, 2024), appeal

docketed, No. 24-3107 (10th Cir. Aug. 2, 2024);

Livingston v. Payne, No. 23-3162, 2024 U.S. Dist.

LEXIS 119048, 2024 WL 3328584 (D. Kan. July 8,

2024), appeal docketed, No. 24-3128 (10th Cir. Aug.

24, 2024).

One possibility exists of a related issue being

resolved by an Article III court of appeals on direct

review. The United States Court of Appeals for the

District of Columbia Circuit hears direct appeals of

military commission cases. 10 U.S.C. § 950g. It is,

therefore, foreseeable that that court might decide a

Ramos-based challenge to the military commissions’

authorization of convictions by a two-thirds vote of a

military commission’s members. See 10 U.S.C. §

949m. Military commission cases, however, are

subject to unique issues concerning the U.S.

Constitution’s applicability to trials of non-U.S.

citizens outside U.S. territory. It is certainly a

possibility that the alien unprivileged enemy

belligerents tried by military commissions, see 10

U.S.C. § 948c, do not enjoy a Fifth Amendment due

process right to unanimous verdicts while service

members and civilians tried by courts-martial do.

Thus, there are no reasonable prospects of further

development of the constitutionality of allowing courtmartial convictions by a non-unanimous vote of the

panel members. As previously discussed, the

Department of Defense has recommended against any

change, and the issue is not the subject of ongoing

congressional deliberation. This Court should use this

case as its vehicle for resolving that significant issue.

The military justice system paradoxically makes

it too easy to obtain both a conviction and an acquittal.

This Court should grant certiorari to review the

constitutionality of the former. This Court’s

consideration of that issue would also likely have the

salutary effect of leading Congress and the President

to reconsider the wisdom of the latter.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

DWIGHT H. SULLIVAN

Counsel of Record

Air Force Appellate Defense Div.

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4773

dwight.sullivan.1@us.af.mil

MAJOR FREDERICK J. JOHNSON, USAF

MAJOR TREVOR N. WARD, USAF

Air Force Appellate Defense Div.

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

Counsel for Petitioners

APPENDIX

TABLE OF CONTENTS

Dawson

C.A.A.F. Order Denying Review (July 17, 2025) ..... 1a

Air Force Court of Criminal Appeals Decision

(Apr. 28, 2025) ................................................ 2a

Arizpe

C.A.A.F. Decision (July 22, 2025) .......................... 32a

C.A.A.F. Order Granting Review (May 30, 2025).. 33a

Air Force Court of Criminal Appeals Decision

(Mar. 19, 2025) ............................................. 35a

Constitutional, Statutory,

Provisions Involved

and

Regulatory

1. Due Process Clause of the Fifth Amendment, U.S.

CONST. amend. V..................................................... 57a

2. Jury Trial Clause of the Sixth Amendment, U.S.

CONST. amend. VI ................................................... 57a

3. Article 16, Uniform Code of Military Justice, 10

U.S.C. § 816............................................................. 57a

4. Article 51(a), Uniform Code of Military Justice, 10

U.S.C. § 851(a) ........................................................ 59a

iia

5. Article 52(a), Uniform Code of Military Justice, 10

U.S.C. § 852(a) ........................................................ 59a

6. Rule for Courts-Martial 921(c), MANUAL FOR

COURTS-MARTIAL, UNITED STATES (2024 ed.)......... 60a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

USCA Dkt. No. 25-0156/AF

Crim.App. No. 24041

ORDER DENYING PETITION

Deshawn M.

Dawson,

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 17th

day of July, 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 (Johnson)

Appellate Government Counsel (Payne)

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 24041

________________________

UNITED STATES

Appellee

Deshawn M. DAWSON

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

________________________

Appeal from the United States Air Force Trial

Judiciary 1

Decided 28 April 2025

________________________

Military Judge: Sterling C. Pendleton.

Sentence: Sentence adjudged 1 April 2023 by

SpCM convened at Incirlik Air Base, Turkey.

Sentence entered by military judge on 27 April

2023: 45 days hard labor without confinement,

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

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

§ 866(b)(1)(A), Manual for Courts-Martial, United States (2024

ed.).

forfeiture of $300.00 pay per month for 2 months,

reduction to E-2, and a reprimand.

For Appellant: Major Megan R. Crouch, USAF;

Major Samantha P. Golseth, USAF; Major

Frederick J. Johnson, USAF; Dwight H. Sullivan,

Esquire.

For Appellee: Colonel Zachary T. Eytalis, USAF;

Lieutenant Colonel Jenny A. Liabenow, USAF;

Lieutenant Colonel G. Matt Osborn, USAF; Major

Jocelyn Q. Wright, USAF; Mary Ellen Payne,

Esquire.

Before ANNEXSTAD, DOUGLAS, and MASON,

Appellate Military Judges.

Judge MASON delivered the opinion of the court,

in which Senior Judge ANNEXSTAD and Judge

DOUGLAS joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

Practice

and

Procedure

30.4.

________________________

MASON, Judge:

A special court-martial, consisting of officer and

enlisted members, convicted Appellant, contrary to

his pleas, of one specification of assault consummated

by a battery in violation of Article 128, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 928. 2,3 The

military judge sentenced Appellant to hard labor

without confinement for 45 days, forfeiture of $300.00

pay per month for two months, reduction to the grade

of E-2, and a reprimand. The convening authority took

no action on the findings or the sentence.

Appellant raised eight issues on appeal which we

have reordered and rephrased: (1) whether the record

of trial is complete in the absence of significant

portions of the audio recording of the proceedings; (2)

whether Appellant was entitled to a unanimous

verdict in the findings portion of the trial; (3) whether

the military judge abused his discretion in denying the

defense motion for a mistrial; (4) whether the military

judge abused his discretion in admitting testimony in

sentencing from Appellant’s commander about unit

impact; (5) whether the military judge abused his

discretion in admitting hearsay evidence despite the

witness’s acknowledgment that she did not have

“firsthand” knowledge of the matters; (6) whether the

entry of judgment was erroneous in that it misstated

the adjudged forfeitures; (7) whether the delay in posttrial processing warrants relief; and (8) whether the

cumulative error doctrine warrants reversal of the

findings and sentence.

2 All references to the punitive articles of the UCMJ and Rules

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

States (2019 ed.).

3 Appellant was acquitted of two specifications of abusive sexual

contact in violation of Article 120, UCMJ, 10 U.S.C. § 920.

Regarding issue (1), the original record of trial

(ROT) submitted to the court by the Government

contained a disk of audio files. However, the disk did

not contain the entirety of the audio recordings for this

court-martial. After receiving Appellant’s assignment

of errors, on 12 March 2025, the Government moved

to attach multiple declarations and a disk containing

the entirety of the audio recordings for this case. We

granted the motion. Having reviewed the attached full

audio and the originally provided recording of the

proceedings in the form of a written transcript,

Appellant is not prejudiced and, therefore, is not

entitled to relief for the failure of the Government to

initially provide the full audio recordings in the ROT. 4

As to issue (2), Appellant is not entitled to relief.

See United States v. Anderson, 83 M.J. 291, 302

(C.A.A.F. 2023) (holding that a military accused does

not have a right to a unanimous verdict under the

Sixth Amendment, 5 the Fifth Amendment’s due

process clause, or the Fifth Amendment’s component

of equal protection 6), cert. denied, 144 S. Ct. 1003

(2024).

4 A “record” as defined by Article 1, UCMJ, means “(A) an official

written transcript, written summary, or other writing relating to

the proceedings; or (B) an official audiotape, videotape, or similar

material from which sound, or sound and visual images,

depicting the proceedings may be reproduced.” Article 1(14),

UCMJ, 10 U.S.C. § 801(14) (emphasis added).

5 U.S. CONST. amend. VI.

6 U.S. CONST. amend. V.

With regards to issue (6), while the written

transcript shows that Appellant was sentenced to (in

relevant part), “Forfeit $300[.00] of your pay for two

months,” the audio recording clearly reveals that the

military judge announced the words, “Forfeit $300.00

of your pay per month for two months.” The written

transcript erroneously omitted the clause “per month”

which is reflected in the audio recording. As such, the

entry of judgment is correct, and Appellant is not

entitled to relief.

We have carefully considered issue (8) 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, as discussed below, we

find no error that materially prejudiced Appellant’s

substantial rights and affirm the findings and

sentence.

I. Background

On or about 21 May 2022, Appellant and three

friends, EE, Senior Airman (SrA) KH, and SrA KB,

went out to a club. After going to the club, the four of

them drove to a diner and bowling alley complex next

to the dorms on base. During the drive, Appellant and

EE were talking. That conversation turned into an

argument. SrA KH was driving the car and parked it

when they arrived at the complex. They all exited the

vehicle. Immediately after exiting the vehicle,

Appellant slapped EE on the face. SrA KB saw

Appellant slap EE. SrA KH heard the slap, turned

and saw EE put her hand to her face, start to cry, and

heard her say, “Dawson, you just slapped me.” SrA KB

separated Appellant from EE and took EE back to the

dormitory to console her. SrA KH took Appellant to

the diner and to the bowling alley.

During her testimony, EE stated that she and

Appellant both had been drinking that night. EE

stated that she did not remember most of the evening,

including being slapped by Appellant, because she

was heavily intoxicated.

II. Discussion

A. Defense Motion for Mistrial

1. Additional Background

In a pretrial motions hearing, trial defense counsel

moved to disqualify the assistant trial counsel (ATC),

Captain (Capt) MW, from this case. In making the

motion, he asserted, “[i]t came to the [D]efense’s

attention yesterday that Captain [MW] and the

accused regularly encounter each other while playing

poker games at the club here on base . . . we do believe

that it creates at least the appearance of impropriety

. . . .” The military judge heard from both parties and

questioned Capt MW. He denied the motion to

disqualify assistant trial counsel concluding that

Capt MW did not act in ways that are “inconsistent

with the role of counsel meaning playing poker at a

sponsored [Force Support Squadron (FSS)] event

which presumably there were large levels of people

. . . . within the context of the members assigned

[t]here to Incirlik.”

Following the resolution of various additional

pretrial motions and the entry of pleas, the court

swore in the potential court members and conducted

voir dire. One of those members was Technical

Sergeant (TSgt) AS. The military judge questioned

the panel as a group initially. One of the questions

asked was, “Does anyone know the accused in this

case?” He then noted, “That’s a negative response by

the members.” After the group was questioned by trial

counsel and trial defense counsel, members were

recalled for additional individual voir dire. TSgt AS

was one of those members. The military judge asked a

few questions related to TSgt AS’s interactions with

another member on the court and if she had any

concerns about those interactions. She expressed that

she did not have any issues with it. Senior trial

counsel (STC) then had the following brief exchange

with TSgt AS:

STC: Yes, just a quick follow-up. So, the

question was asked, during the general

questioning about whether they know

the accused in this case. Even if you don’t

know the accused, do you think you may

have seen him around base or recognize

the face?

[TSgt AS:] No.

STC: Okay, that’s the only question I

had.

The military judge then invited the senior trial

defense counsel (SDC) to ask TSgt AS his questions.

The following exchange occurred:

[SDC:] Just a couple of additional

questions. Do you ever play poker on

base?

[TSgt AS:] Yes, I do.

[SDC:] Do you recognize any of the trial

counsel from those games?

[TSgt AS:] Yes, I do.

[SDC:] Okay, can you tell us who you

recognize?

[TSgt AS:] The one on the end.

[SDC:] Captain [MW]? On the left side

there?

[TSgt AS:] Yes.

[SDC:] How often would you say you’ve

seen him at those games?

[TSgt AS:] Once or twice.

[SDC:] Have you ever had

conversations with him when

encounter[ed] him?

any

you

[TSgt AS:] No.

[SDC:] And since you have never had a

conversation, you have never heard him

say anything about his work or this case

in particular?

[TSgt AS:] No.

10a

[SDC:] And from encountering him at

those games, do you think that you’ve

formed any opinions about him or about

his character? Anything like that?

[TSgt AS:] No, sir.

[SDC:] And do you think having

encountered him there would change the

way that you consider this case at all?

[TSgt AS:] No.

[SDC:] Do you think that you would be

any more or less likely to give what he

has to say more or less weight than what

anyone else has to say?

[TSgt AS:] No.

[SDC:] That’s all I have. Nothing further,

Your Honor.

The military judge then asked two more questions:

MJ: Do you believe that you can give this

accused a full, fair and impartial

hearing?

[TSgt AS:] Yes, sir.

MJ: Will you base your decision only on

the evidence presented at trial rather

than your own personal experience?

[TSgt AS:] Yes, sir.

At the completion of voir dire, TSgt AS was not

challenged for cause by either party. Trial defense

11a

counsel exercised a peremptory challenge on another

member. TSgt AS remained on the panel after all

excusals were accomplished. At the completion of the

findings case and after being instructed by the

military judge, the court members, including TSgt AS,

deliberated and returned mixed findings. They found

Appellant guilty of assault consummated by a battery

in violation of Article 128, UCMJ. Appellant

subsequently chose sentencing by military judge and

the members were excused.

During a break in the presentation of evidence in

the presentencing proceedings, counsel and the

military judge had a Rule for Courts-Martial (R.C.M.)

802 session wherein the Government informed the

military judge that there may have been an issue with

TSgt AS. Upon returning on the record, the military

judge summarized this R.C.M. 802 session and invited

Capt MW to provide more context. Capt MW stated:

Yes, Your Honor. So what we—what the

[G]overnment discovered today is that

[TSgt AS] was in fact at some of these

poker games that—with the accused . . .

and did in fact sit at a table with him

approximately four days before the

beginning of trial, and before the

beginning of voir dire. So, they were

observed having a conversation. It’s not

sure what the conversation was about,

but that they did in fact communicate

with one another.

....

12a

And also, to reiterate Your Honor, that

they are in a group chat, Facebook group

chat, with one another. They being [TSgt

AS] and [the accused].

Trial defense counsel did not request any relief at

that time. Prior to the military judge deliberating on

the sentence, trial defense counsel moved for a partial

mistrial as it related to the finding of guilty for assault

consummated by a battery. Their basis for the

requested relief was the “lack of candor discovered by

trial counsel this morning by one of the panel

members, [TSgt AS].”

TSgt AS was recalled and sworn in as a witness to

provide testimony on this motion. She provided the

following testimony:

[MJ:] Good morning [TSgt AS]. So, it has

come to our attention that you may have

had some interaction with the accused,

specifically, at an FSS event at the club

or wherever poker is played here on base.

In a poker game, well first of all is that

an accurate

statement

your

knowledge? Have you ever played poker

with the accused?

[TSgt AS:] It is possible; I don’t recognize

everyone.

[MJ:] So,

accused?

you

[TSgt AS:] No, sir.

don’t

recognize

the

13a

[MJ:] Safe to say then, I don’t want to put

words in your mouth, you didn’t

recognize

him

when

you

were

individually voir dired at the beginning

of this process?

[TSgt AS:] No.

[MJ:] Do you believe that you have ever

spoken to him?

[TSgt AS:] If he’s played poker, it’s

possible.

[MJ:] How often do you play poker?

[TSgt AS:] It’s on Tuesdays and

Saturdays. I try to play once a week.

[MJ:] At the risk of repeating myself, but

so, the first question I asked in my

questions was, did anyone know the

accused. Is your testimony here today

that you didn’t then and do not now

recognize the accused and do not know

the accused, is that right?

[TSgt AS:] Yes, sir.

....

[ATC:] [TSgt AS], are you part of a group

chat for poker players on base?

[TSgt AS:] I am.

14a

[ATC:] And roughly, what’s the size of

this group chat?

[TSgt AS:] I have never looked into it;

there are seven members that I know of

who put stuff in there regularly.

[ATC:] And what application and where

is this group chat from or what

application?

[TSgt AS:] It’s Facebook messenger.

[ATC:] And do you know anyone

particular in particular [sic] in that

group chat?

[TSgt AS:] I know their names as they

pop up, but I don’t associate with them

other than “hey poker is in 30.”

....

[ATC:] And [TSgt AS], do you specifically

recognize the accused in that group chat?

[TSgt AS:] No, I have not seen his avatar.

....

[MJ:] Are you able to see the names, like

in the group chat, like it would be Senior

Airman Dawson let’s say?

[TSgt AS:] Most people have nicknames

like Tilt King or All in Master.

15a

[MJ:] Okay, so you don’t remember if

you’ve seen the accused’s name?

[TSgt AS:] I do not know sir.

[MJ:] And you don’t know if you’d ever

seen him in the group chat?

[TSgt AS:] No, sir.

[MJ:] Okay, [D]efense?

[SDC:] No questions, Your Honor.

Following testimony from TSgt AS, the military

judge also took testimony from a member of the base

legal office, Capt JC. Based on that testimony, the

military judge found the following facts:

[Capt JC] told trial counsel before the

panel was seated that he saw [TSgt AS]

playing poker with the accused last

Saturday. Specifically, [Capt JC] played

poker at the same table with the accused

and [TSgt AS]. In total, 6 to 8 people were

seated at the table. [Capt JC] remembers

small talk but not any topics that were

covered.

Furthermore, [Capt JC] stated that

[TSgt AS] and the accused had been

going to poker games for a while, so they

likely knew each other, and he had seen

them at the table maybe five times. [TSgt

16a

AS] did not recognize the accused at

group voir dire or upon being questioned

at the motion hearing. She did not

recognize the accused from the group

chat, poker, or players on base.

The military judge found that TSgt AS gave

“objectively incorrect answers” in light of the fact that

Capt JC “was sure that the accused and [TSgt AS]

played poker together on multiple occasions as late as

four days ago.” However, the military judge denied the

Defense’s motion for a mistrial concluding that the

“court here was not burdened intolerably by

preventing the accused from exercising the challenge

for cause . . . .”

2. Law

“[A] military judge’s determination on a mistrial

will not be reversed absent clear evidence of an abuse

of discretion.” United States v. Rudometkin, 82 M.J.

396, 400 (C.A.A.F. 2022) (citing United States v. Diaz,

59 M.J. 79, 90 (C.A.A.F. 2003)). A military judge

abuses his discretion when:

(1) the military judge predicates a ruling

on findings of fact that are not supported

by the evidence in the record; (2) the

military judge uses incorrect legal

principles; (3) the military judge applies

correct legal principles to the facts in a

way that is clearly unreasonable; or (4)

the military judge fails to consider

important facts.

Id. at 401 (citations omitted).

17a

R.C.M. 915(a), Mistrial, states, “[t]he military

judge may, as a matter of discretion, declare a mistrial

when such action is manifestly necessary in the

interest of justice because of circumstances arising

during the proceedings which cast substantial doubt

upon the fairness of the proceedings.”

R.C.M. 915, Discussion, states, in relevant part,

“The power to grant a mistrial should be used with

great caution under urgent circumstances, and for

plain and obvious reasons.”

“As a matter of due process an accused has a

constitutional right, as well as a regulatory right, to a

fair and impartial panel.” United States v. Commisso,

76 M.J. 315, 321 (C.A.A.F. 2017) (quoting United State

v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001)).

“Responses to voir dire [examination] need not be

pristine to satisfy the constitutional minimum of a fair

trial . . . .” Id. at 322 (citing McDonough Power Equip.,

Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (“To

invalidate the result of a . . . trial because of a juror’s

mistaken, though honest response to a question, is to

insist on something closer to perfection than our

judicial system can be expected to give.”)) (additional

citation omitted).

A pivotal question in evaluating whether a motion

for mistrial should have been granted is if, had the

member answered a “material question[ ] honestly at

voir dire, defense counsel would have had a valid basis

to challenge them for cause.” Id. (citation omitted).

R.C.M. 912(f)(1)(N) states that a member shall be

excused for cause whenever it appears that the

18a

member “[s]hould not sit as a member in the interest

of having the court-martial free from substantial

doubt as to [the] legality, fairness, and impartiality”

of the court-martial. R.C.M. 912, Discussion, notes in

relevant part, “[e]xamples of matters which may be

grounds for challenge are that the member . . . is

closely related to the accused . . . [or] has a decidedly

friendly or hostile attitude toward a party . . . .”

3. Analysis

Appellant challenges the military judge’s ruling

denying the motion for mistrial. He argues first that

trial counsel should have disclosed that Capt JC was

aware TSgt AS was seen playing poker with Appellant

to the trial defense counsel earlier so that they could

ask TSgt AS more questions regarding whether or

how she interacted with Appellant during these onbase poker games. Certainly, it is well-settled that

trial counsel has a duty to disclose information to the

Defense that would form a ground for challenge.

United States v. Shuller, 17 C.M.R. 101, 105 (C.M.A.

1954). It also appears that trial counsel knew that

Appellant and TSgt AS both attended these on-base

poker games prior to the assembly of the court but did

not specifically disclose this information until after

the findings had been announced. However, this

failure is not determinative in this case.

The record also makes very clear that trial defense

counsel knew two key facts prior to the call for

challenges for cause. First, the Defense knew that

there were on-base poker games that Appellant

participated in. This is illustrated by the trial defense

counsel’s motion to disqualify the assistant trial

19a

counsel. In their argument on the motion, they stated,

“It came to the [D]efense’s attention yesterday that

Captain [MW] and the accused regularly encounter

each other while playing poker games at the club here

on base . . . .” This motion preceded the arrival,

swearing in, and voir dire of the court members. Thus,

at that time, trial defense counsel absolutely knew

that their client played in these games.

Second, trial defense counsel knew that TSgt AS

also played poker on-base. During TSgt AS’s

individual voir dire, trial defense counsel asked her if

she played poker on-base, and she acknowledged that

she did. Trial defense counsel asked if she knew trial

counsel. Curiously, despite absolutely knowing that

Appellant also played at these games, trial defense

counsel never asked if TSgt AS interacted with

Appellant. Nevertheless, a miniscule level of

deduction yields the inescapable conclusion that TSgt

AS and Appellant likely interacted at some point

while playing in the on-base poker games. Yet,

Appellant echoes his trial defense counsel’s postconviction assertion that had his counsel known about

any interaction between TSgt AS and Appellant, they

would have asked more questions or exercised their

challenges differently. However, this assertion rings

hollow in light of the facts of record. 7

This conclusion is further reinforced by the fact that when

presented an opportunity to ask questions of TSgt AS when she

was recalled to testify on the motion for mistrial, trial defense

counsel did not have a single question to ask her.

20a

Moving past trial counsel’s untimely disclosure, we

focus on the pivotal question to resolve this matter—

had TSgt AS answered a material question correctly

at voir dire, would defense counsel have had a valid

basis to challenge her for cause. Commisso, 76 M.J. at

322. Here, the answer is no. While the military judge

found that TSgt AS was incorrect in her answer that

she did not know Appellant, it does not change the fact

that she did not recognize Appellant. She did not know

him when first asked. She did not know him when she

was recalled. The military judge did not find that she

was lying when she made those statements. He did not

find that she had any intent to deceive when she made

those statements. Rather, the military judge found

that, based on Captain JC’s statement that he was

sure that he had seen them interact at the poker

games, that TSgt AS was objectively incorrect when

she said that she did not know Appellant.

We are left to conclude based on the evidence of

record and the military judge’s findings that TSgt AS

knew Appellant, but she did not recognize him and did

not know that she knew him. The pivotal question

then centers on whether there is a ground for

challenge to a member who objectively knows an

accused but subjectively does not realize that she

knows him. We hold that under the facts of this

particular case, the answer is no.

A member shall be excused when she “[s]hould not

sit as a member in the interest of having the courtmartial free from substantial doubt as to [the] legality,

fairness, and impartiality” of the court-martial.

R.C.M. 912(f)(1)(N). That doubt can arise from either

21a

actual bias or implied bias of the member. See United

States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015)

(citation omitted). Evaluating actual bias, a subjective

test, TSgt AS could not be found to have had actual

bias against Appellant. In her mind, she did not know

Appellant. See United States v. Terry, 64 M.J. 295, 302

(C.A.A.F. 2007). Likewise, TSgt AS would not be

subject to excusal for cause for implied bias. An

objective observer, knowing the facts and

circumstances, having seen her testify, and having

listened to her explanation that she did not know or

recognize Appellant, would not question the

procedural fairness of the trial. See United States v.

Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). Rather, an

objective observer would reasonably conclude that this

member is not closely related to Appellant nor has she

“a decidedly friendly or hostile attitude toward

[either] party” in light of the fact that she did not even

recognize Appellant. R.C.M. 912, Discussion.

Therefore, TSgt AS would not have been subject to

excusal upon a challenge for cause. Because she was

not, the military judge’s denial of the motion for

mistrial was not a clear abuse of discretion, and

Appellant is not entitled to relief based on that denial.

B. Sentencing Evidence

1. Additional Background

Following the announcement of findings,

Appellant chose to be sentenced by military judge

alone and the members were excused. During the

presentencing proceedings, the Government sought to

introduce testimony from Appellant’s squadron

22a

commander, Lieutenant Colonel (Lt Col) AG. Trial

defense counsel objected to Lt Col AG’s testimony

arguing that it was improper aggravation evidence.

Specifically, trial defense counsel sought to exclude

testimony from Lt Col AG that Appellant, a member

of the security forces squadron, was removed from the

flight and put on the do-not-arm list, had to go to the

Office of Special Investigations to be interviewed, and

that EE was also removed from the flight. Appellant

argued that those are decisions of the command and

not matters in aggravation. The military judge

overruled the objection, and the Government called Lt

Col AG to testify.

Lt Col AG testified that she knew Appellant from

her unit. She interacted with him through flight visits,

guard mounts, and welfare checks. Once the

allegations were brought to her attention, the

interactions she had with Appellant became more

frequent. She testified about how Appellant was put

into do-not-arm status so he could not perform all the

duties and functions that he was assigned to do. She

stated that because of that, the flight was “just down

a member until [they] get a backfill to replace the

member.” As to the impact on the unit, Lt Col AG

stated, “[T]hat’s one less member that they can use to

cover that. So it affects the rest of the flight in post

rotations, possible . . . days off that they get or those

types of things.”

Trial counsel later asked Lt Col AG about

Appellant’s attitude and demeanor in the section to

which he had been reassigned. Lt Col AG started to

answer but did not finish before trial defense counsel

23a

objected to hearsay. The military judge responded, “I

don’t know what the answer is going to be so at this

point overruled.” The following testimony was then

presented:

[Lt Col AG:] So observed, I see him in his

details, working those details, and I’m

not sure you know what the objection is,

but it was brought to me on attitude,

while he’s been working those details on

at least two occasions, where he is asked

to do something and he drags his feet or

he doesn’t do it. Which then the detail

that continues that trend and so that’s

been an issue since he’s been in the S-4

section.

[TC:] And so, you mentioned the sort of

the attitude, can you describe that a little

bit more?

[Lt Col AG:] Yes. So, what was brought

to me, again I didn’t see it firsthand, but

what was brought to me by senior

[noncommissioned officers] was they

asked him to do something and he

doesn’t get it done. They ask him again

to do it and he has kind of a flippant

attitude about going and getting it done,

like they are bothering him or asking

him to do something that’s unreasonable.

....

[TC:] So [Lt Col AG], you mentioned just

right now that it kind of permeates

24a

throughout the S-4 section in the flight,

what did you mean by that?

[Lt Col AG:] Yes. So they all watch each

other and they all feed off of each other

quite frankly, and so if one of them is not

going to do it others are going to follow

suit with that, and that is something

that’s been brought to me on at least two

occasions with [the accused] specifically.

Trial defense counsel proceeded to cross-examine

Lt Col AG. She agreed that she did not personally

observe some of the things that she mentioned about

the new duties Appellant had been performing. She

further agreed that she was not aware of any flight

level infractions by Appellant. She also testified in

relation to Appellant’s disarming that he was easily

replaceable in that there are plenty of other Airmen in

the unit but that the decision to bring him and EE

down off the arming list meant that the unit had 366

vice 368 Airmen able to perform full duties.

2. Law

We review a military judge’s decision to admit

sentencing evidence for abuse of discretion. United

States v. Barker, 77 M.J. 377, 383 (C.A.A.F. 2018)

(citation omitted). “The abuse of discretion standard is

a strict one, calling for more than a mere difference of

opinion. The challenged action must be ‘arbitrary,

fanciful, clearly unreasonable,’ or ‘clearly erroneous.’”

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

(C.A.A.F. 2000) (quoting United States v. Miller, 46

25a

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

25 M.J. 61, 62 (C.M.A. 1987)).

A military judge abuses his or her

discretion when: (1) the military judge

predicates a ruling on findings of fact

that are not supported by the evidence of

record; (2) the military judge uses

incorrect legal principles; (3) the military

judge applies correct legal principles to

the facts in a way that is clearly

unreasonable; or (4) the military judge

fails to consider important facts.

Rudometkin, 82 M.J. at 401 (citations omitted).

When there is error in the admission of

sentencing evidence, the test for

prejudice “is whether the error

substantially influenced the adjudged

sentence.” United States v. Sanders, 67

M.J. 344, 346 (C.A.A.F. 2009) (citation

omitted). When determining whether an

error had a substantial influence on a

sentence, this Court considers the

following four factors: “(1) the strength of

the Government’s case; (2) the strength

of the defense case; (3) the materiality of

the evidence in question; and (4) the

quality of the evidence in question.”

United States v. Bowen, 76 M.J. 83, 89

(C.A.A.F. 2017) (internal quotation

marks omitted) (quoting United States v.

Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)).

An error is more likely to be prejudicial if

26a

the fact was not already obvious from the

other evidence presented at trial and

would have provided new ammunition

against an appellant. United States v.

Harrow, 65 M.J. 190, 200 (C.A.A.F.

2007).

Barker, 77 M.J. at 384.

3. Analysis

Appellant argues first that the military judge erred

by permitting Lt Col AG to testify about adverse unit

impact due to the allegations against him particularly

because he was acquitted of two of the three

allegations against him. He argues second that the

military judge erred by permitting Lt Col AG to echo

disparaging hearsay statements in her testimony over

trial defense counsel’s objection.

We need not decide whether any of the challenged

evidence here was erroneously admitted as both

challenges can easily be resolved by analyzing

prejudice. In its entirety and in component pieces, the

testimony of Lt Col AG about unit impact and attitude

concerns brought to her that she did not see firsthand

are of very low probative value. Trial defense counsel

did an excellent job of highlighting Lt Col AG’s lack of

personal knowledge as to any attitude problems.

Moreover, the quality and materiality of this evidence

was very low. After the cross-examination, it was

quite clear that removal of Appellant from his full

duties had virtually no impact on this large squadron

that routinely absorbs Airmen not being able to arm

up. Thus, evaluating the Barker factors, we are firmly

27a

convinced that, if this testimony was not completely

disregarded by the military judge sitting as

sentencing authority, it surely did not substantially

influence the adjudged sentence in this case that

included neither confinement nor a punitive

discharge. Hence, Appellant is not entitled to relief for

the admission of Lt Col AG’s testimony.

C. Post-Trial Delay

1. Additional Background

On 23 December 2022, Congress amended Articles

66 and 69, UCMJ, 10 U.S.C. §§ 866, 869. 8 As

amended, Article 66(b)(1)(A), UCMJ, 10 U.S.C.

§ 866(b)(1)(A), expanded the jurisdiction of the service

CCAs to any judgment of a special or general courtmartial, irrespective of sentence, that included a

finding of guilty.

Appellant was sentenced on 1 April 2023.

Appellant’s sentence did not meet the jurisdictional

requirements for automatic appeal to this court under

Article 66(b)(3), UCMJ, 10 U.S.C. § 866(b)(3). On 11

September 2023, Appellant received a notice from

Headquarters Third Air Force informing him of his

right to appeal his conviction pursuant to Article

66(b)(1)(A), UCMJ. On 25 September 2023, Appellant

filed with this court a timely notice of direct appeal

pursuant to Article 66(b)(1)(A), UCMJ, and this court

docketed his case on 4 October 2023. The court

suspended Appellant’s obligation to file his brief

8 National Defense Authorization Act for Fiscal Year 2023, Pub.

L. No. 117-263, § 544, 136 Stat. 2395, 2582–84 (23 Dec. 2022).

28a

pending completion of the verbatim transcript for this

case. The court received the certified verbatim

transcript on 9 August 2024. After the transcript was

delivered to this court, Appellant moved for 3

enlargements of time. On 28 January 2025, Appellant

filed his assignments of error brief with the court. On

12 March 2025, the Government filed their answer

brief. Appellant then filed a reply brief on 19 March

2025.

On 1 April 2025, Appellant moved to cite

supplemental authority. We granted that motion. In

the motion, he states, “Appellant does not argue that

unreasonable post-trial delay in his case constitutes a

due process violation.” 9

2. Law

We review the question of whether an appellant’s

due process rights are violated because of post-trial

delay de novo. United States v. Livak, 80 M.J. 631, 633

(A.F. Ct. Crim. App. 2020) (citation omitted).

In United States v. Moreno, the United States

Court of Appeals for the Armed Forces (CAAF)

adopted thresholds for facially unreasonable delay

during three particular segments of the post-trial and

appellate process. 63 M.J. 129, 136 (C.A.A.F. 2006)

(citation omitted). Specifically, our superior court

established a presumption of facially unreasonable

delay where: (1) the convening authority did not take

9 Appellant’s supplemental authority cited was United States v.

Valentin-Andino, __ M.J. __, No. 24-0208, 2025 CAAF LEXIS 248

(C.A.A.F. 31 Mar. 2025).

29a

action within 120 days of the completion of trial, (2)

the record was not docketed with the CCA within 30

days of the convening authority’s action, or (3) the

CCA did not render a decision within 18 months of

docketing. 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).

A Court of Criminal Appeals may provide

appropriate relief for excessive post-trial delay.

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

Appropriate relief is not synonymous with meaningful

relief. United States v. Valentin-Andino, __ M.J. __,

30a

No. 24-0208, 2025 CAAF LEXIS 248, at *9 (C.A.A.F.

31 Mar. 2025). “[A]lthough it is within a Court of

Criminal Appeal’s discretion to place its reasoning

about Article 66(d)(2)[, UCMJ,] relief on the record, it

is not required to do so.” Id. (citing United States v.

Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013)).

3. Analysis

We begin our analysis with the assumption that

while the post-trial procedures of Appellant’s appeal

are different than the appeal procedures in place at

the time Moreno and its progeny were decided, that

the right to speedy appellate review continues under

these new procedures. We also determine that the 18month Moreno standard for facially unreasonable

delay from docketing with this court to appellate

decision still applies to determine if a facially

unreasonable post-trial delay occurred. Therefore,

since a decision by this court on Appellant’s case was

not rendered within 18 months of 1 April 2023, a

facially unreasonable post-trial delay has been

established in Appellant’s case.

Finding a facially unreasonable post-trial delay,

we now assess whether a due process violation

occurred. Appellant is not claiming a due process

violation in his case. After considering the four Barker

factors we agree and conclude that no due process

violation occurred. Thus, no relief is warranted. We do

not find the delay in this case so egregious as to

“adversely affect the public’s perception of the fairness

and integrity of the military justice system.” Toohey,

63 M.J. at 362. Finally, recognizing our authority

under Article 66(d)(2), UCMJ, we have also considered

31a

whether relief for excessive post-trial delay is

appropriate even in the absence of a due process

violation. We conclude it is not.

III. Conclusion

As entered, the findings are correct in law and the

sentence is 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 sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

32a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

USCA Dkt. No. 25-0159/AF

Crim.App. No. 40507

Jorge A.

Arizpe,

ORDER

Appellant

On further consideration of the granted issue,

__ M.J. __ (Daily Journal May 30, 2025), and in view

of United States v. Johnson, __ M.J. __ (C.A.A.F.

2025), it is, by the Court, this 22nd day of July, 2025,

ORDERED:

That the decision of the United States Air Force

Court of Criminal Appeals is hereby affirmed.

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)

33a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

Jorge A.

Arizpe,

USCA Dkt. No. 25-0159/AF

Crim.App. No. 40507

ORDER GRANTING REVIEW

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 May, 2025,

ORDERED:

That said petition is hereby granted on the

following issue:

AS APPLIED TO APPELLANT, WHETHER

18 U.S.C. § 922 IS CONSTITUTIONAL IN

LIGHT OF RECENT PRECEDENT FROM

THE SUPREME COURT OF THE UNITED

STATES.

No briefs will be filed under C.A.A.F. R. 25.

For the Court,

/s/

Malcolm H. Squires, Jr.

Clerk of the Court

34a

cc:

The Judge Advocate General of the Air Force

Appellate Defense Counsel (Bruha)

Appellate Government Counsel (Payne)

35a

U NITED S TATES A IR F ORCE

C OURT OF C RIMINAL A PPEALS

________________________

No. ACM 40507

________________________

UNITED STATES

Appellee

Jorge A. ARIZPE

Major (O-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary 1

Decided 19 March 2025

________________________

Military Judge: Lance R. Smith.

Sentence: Sentence adjudged on 13 January 2023

by GCM convened at Royal Air Force Lakenheath,

United Kingdom. Sentence entered by military

judge on 14 February 2023: Confinement for 35

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

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

§ 866(b)(1)(A), Manual for Courts-Martial, United States (2024

ed.).

36a

days, forfeiture of $1,200.00 pay per month for 2

months, and a reprimand.

For Appellant: Major Heather M. Bruha, USAF.

For Appellee: Lieutenant Colonel J. Pete Ferrell,

USAF; Lieutenant Colonel Jenny A. Liabenow,

USAF; Major Brittany M. Speirs, USAF; Captain

Jocelyn Q. Wright, USAF; Mary Ellen Payne,

Esquire.

Before ANNEXSTAD, GRUEN, and MASON,

Appellate Military Judges.

Senior Judge ANNEXSTAD delivered the opinion

of the court, in which Judge GRUEN and Judge

MASON joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4.

________________________

ANNEXSTAD, Senior Judge:

A general court-martial consisting of officer

members convicted Appellant, contrary to his pleas, of

one specification of abusive sexual contact in violation

of Article 120, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 920, and one specification of

conduct unbecoming an officer and a gentleman in

37a

violation of Article 133, UCMJ, 10 U.S.C. § 933. 2,3 The

military judge sentenced Appellant to confinement for

35 days, forfeiture of $1,200.00 pay per month for two

months, and a reprimand. The convening authority

took no action on the findings or the sentence.

Appellant raised four issues on appeal which we

have rephrased: (1) whether Appellant’s convictions

are legally and factually sufficient; (2) whether the

post-trial processing of Appellant’s case was

improperly completed when the staff judge advocate

found 18 U.S.C. § 922 applied to Appellant’s

conviction of a nonviolent offense; (3) whether

Appellant was deprived of his right to a unanimous

verdict; and (4) whether unlawful command influence

tainted the preferral process in Appellant’s case. 4 We

also consider another issue not raised by Appellant:

(5) whether Appellant was subjected to unreasonable

post-trial delay.

We have carefully considered issue (2) and find it

does not warrant discussion or relief. See United

States v. Vanzant, 84 M.J. 671, 681 (A.F. Ct. Crim.

App. 2024) (holding the 18 U.S.C. § 922 firearm

prohibition notation included in the staff judge

advocate’s indorsement to the entry of judgment is

2 All references to the punitive articles of the UCMJ are to the

Manual for Courts-Martial, United States (2019 ed.). All other

references to the UCMJ and Rules for Courts-Martial (R.C.M.)

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

3 Appellant was acquitted of one specification of failure to obey a

lawful order in violation of Article 92, UCMJ, 10 U.S.C. § 892.

4 Issues (3) and (4) were personally raised by Appellant pursuant

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

38a

beyond a Court of Criminal Appeals’ statutory

authority to review), rev. granted, __ M.J. __, No. 240182, 2024 CAAF LEXIS 640 (C.A.A.F. 17 Oct. 2024).

As to issue (3) Appellant is not entitled to relief.

See United States v. Anderson, 83 M.J. 291, 302

(C.A.A.F. 2023) (holding that a military accused does

not have a right to a unanimous verdict under the

Sixth Amendment, 5 the Fifth Amendment’s due

process clause, or the Fifth Amendment’s component

of equal protection 6), cert. denied, 144 S. Ct. 1003

(2024).

We have also carefully considered issue (4) 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)).

Therefore, we only address issue (1), and issue (5)

as raised by the court, infra. Finding no error that

materially prejudiced Appellant’s substantial rights,

we affirm the findings and sentence.

I. BACKGROUND

A. Abusive Sexual Contact

On Saturday, 24 July 2021, Appellant invited some

of his coworkers from the medical group to his house

for a casual barbeque. The attendees included LW,

Captain (Capt) BA, and Major (Maj) SC. All attendees

were active duty servicemembers. LW had drunk only

5 U.S. CONST. amend. VI.

6 U.S. CONST. amend. V.

39a

two glasses of wine, and noticed Appellant, who also

had been drinking wine, was slurring his words.

Around 2100, Maj SC left the barbeque due to fatigue

from the workweek. LW testified at trial that not long

after Maj SC left, Appellant began making crude

sexually charged jokes she felt were directed towards

her as the only female present, and his actions and

comments made her feel uncomfortable. Capt BA also

witnessed Appellant’s conduct and testified that

Appellant was making him feel uncomfortable as well.

He stated that after making eye contact with LW, they

decided it was time to leave Appellant’s residence.

Before they left, LW and Capt BA helped Appellant

carry the dinner dishes back into the kitchen. As Capt

BA was washing his hands at the kitchen sink with

his back turned away from Appellant and LW,

Appellant initiated a hug with LW. While Appellant

was hugging her, he “grabbed [her] right butt cheek”

with his “left hand.” LW stated that she immediately

“pushed Appellant off with both hands” and told him,

“[T]hat’s enough.” She then stated Appellant laughed

and said, “You know I just had to try,” and came in for

a second hug. Capt BA testified that he did not see the

initial hug, but overheard Appellant’s response which

was consistent with LW’s testimony. LW then

described that she froze during the second hug and

that Appellant “nuzzled” her neck. Capt BA witnessed

the second hug and could see that LW was

uncomfortable with Appellant’s behavior.

On the way home, LW told Capt BA that she did

not like the version of Appellant when he was “drunk,”

and that Appellant had grabbed her buttocks during

the first hug. The following Monday, LW made a

restricted sexual assault report, and subsequently

40a

changed it to an unrestricted sexual assault report.

LW testified that Appellant’s conduct made her feel

like she was “a piece of meat” and worthless.

These facts formed the basis of the one

specification of abusive sexual contact in violation of

Article 120, UCMJ, of which a panel of officer

members convicted Appellant.

B. Conduct Unbecoming an Officer and a

Gentleman

In January 2021, SM, a dependent spouse of an

active duty servicemember, began working as a

licensed practical nurse at the base medical facility.

She met Appellant in July 2021 when he was assigned

as her flight commander. In August 2021, SM was the

only technician assigned to the flight and worked

closely with Appellant on a daily basis. During work,

they engaged in both personal and professional

conversations. SM testified that at the time she

viewed Appellant as a “father figure.” This all changed

in September 2021.

On Monday, 13 September 2021, shortly after

arriving to work, Appellant and SM had a brief

discussion about what they did over the weekend

before beginning their patient rounds. Approximately

two hours later, Appellant approached SM and said,

“I love you.” SM stated that she took the comment to

mean that he wanted something from her. SM

testified that Appellant then said, “[SM], I’m going to

tell you something that may make you look at me

differently or cringe, but you are the type of girl I

usually go after, but I know there is this line here and

I know not to cross it.” SM stated that while Appellant

was making these comments, she did not make eye

41a

contact with him and just stared at her computer.

Seeing her body language, Appellant told her, “See, I

knew I shouldn’t have said anything because now you

won’t even look at me.” Subsequently, Appellant

laughed and walked away.

SM testified that Appellant’s comments confused

her and made her “shut down.” She testified that she

immediately reported his behavior, including the

comments, to three coworkers and her husband. One

of the individuals she told about the incident was her

previous flight commander, Lieutenant Colonel SA,

who testified that SM was upset and “very

uncomfortable” when telling her about Appellant’s

professed feelings. At trial, SM explained that

Appellant’s comments bothered her because he was

her supervisor and someone that she was required to

work for and converse with every day. Later that same

day, Appellant tried to reengage SM in a conversation.

SM tried to keep her interaction with Appellant short,

and Appellant, after recognizing that she still would

not make eye contact with him, told her, “See you are

still not looking at me.” SM was transferred to a

different clinic so she would not have to work with

Appellant.

These facts formed the basis of the one

specification of conduct unbecoming an officer and a

gentleman, of which a panel of officer members

convicted Appellant.

II. DISCUSSION

A. Legal and Factual Sufficiency

In his appeal, Appellant challenges the legal and

factual sufficiency of both convictions. As to the

42a

abusive sexual contact offense, Appellant argues that

he had a reasonable mistake of fact as to consent, and

that the Government failed to prove the required

intent element—that the contact was to gratify his

sexual desire. As to the conduct unbecoming an officer

and a gentleman offense, Appellant generally argues

that his actions did not rise to the level of conduct

unbecoming an officer and a gentleman. We disagree

with both arguments and find his convictions legally

and factually sufficient.

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 tri-al. United States v. Rodela, 82 M.J.

521, 525 (A.F. Ct. Crim. App. 2021) (citing United

States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)).

“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). “[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). As a result, “[t]he standard for legal

sufficiency involves a very low threshold to sustain a

conviction.” United States v. King, 78 M.J. 218, 221

(C.A.A.F. 2019) (alteration in original) (citation

omitted). “This deferential standard impinges upon

43a

the factfinder’s discretion only to the extent necessary

to guarantee the fundamental protection of due

process of law.” United States v. Mendoza, ___ M.J.___,

No. 23-0210, 2024 CAAF LEXIS 590, at *9 (C.A.A.F. 7

Oct. 2024) (internal quotation marks and citation

omitted).

The National Defense Authorization Act for Fiscal

Year 2021 significantly changed how service Courts of

Criminal Appeals (CCAs) conduct factual sufficiency

reviews. Pub. L. No. 116-283, § 542(b)(1)(B), (c), 134

Stat. 3388, 3611–12 (1 Jan. 2021). “Congress

undoubtedly altered the factual sufficiency standard

in amending the statute, making it more difficult for

a [CCA] to overturn a conviction for factual

sufficiency.” United States v. Harvey, 83 M.J. 685, 691

(N.M. Ct. Crim. App. 2023), set aside on other grounds,

___ M.J.___, No. 23-0239, 2024 CAAF LEXIS 502

(C.A.A.F. 6 Sep. 2024). Previously, the test for factual

sufficiency required the court, after weighing the

evidence in the record of trial and making allowances

for not having personally observed the witnesses, to be

convinced of the appellant’s guilt beyond a reasonable

doubt before it could affirm a finding. United States v.

Reed, 54 M.J. 37, 41 (C.A.A.F. 2000). “In conducting

this unique appellate role, we [took] ‘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) (second

alteration in original) (quoting Washington, 57 M.J. at

399).

44a

The current version of Article 66(d)(1)(B), UCMJ,

FACTUAL SUFFICIENCY REVIEW, states:

(i) In an appeal of a finding of guilty

under subsection (b), the Court may

consider whether the finding is correct in

fact upon a request of the accused if the

accused makes a specific showing of a

deficiency of proof.

(ii) After an accused has made a showing,

the Court may weigh the evidence and

determine controverted questions of fact

subject to—

(I) appropriate deference to the fact that

the trial court saw and heard the

witnesses and other evidence; and

(II) appropriate deference to findings of

fact entered into the record by the

military judge.

(iii) If, as a result of the review conducted

under clause (ii), the Court is clearly

convinced that the finding of guilty was

against the weight of the evidence, the

Court may dismiss, set aside, or modify

the finding, or affirm a lesser finding.

10 U.S.C. § 866(d)(1)(B) (emphasis added).

“[T]he requirement of ‘appropriate deference’ when

a CCA ‘weigh[s] the evidence and determine[s]

controverted questions of fact’ . . . depend[s] on the

nature of the evidence at issue.” United States v.

Harvey, ___ M.J.___, No. 23-0239, 2024 CAAF LEXIS

502, at *8 (C.A.A.F. 6 Sep. 2024) (second and third

alterations in original). It is within this court’s

45a

discretion to determine what level of deference is

appropriate. Id.

“[T]he quantum of proof necessary to sustain a

finding of guilty during a factual sufficiency review is

proof beyond a reasonable doubt, the same as the

quantum of proof necessary to find an accused guilty

at trial.” Id. at *10 (internal quotation marks omitted).

For this court “to be ‘clearly convinced that the

finding of guilty was against the weight of the

evidence,’ two requirements must be met.” Id. at *12.

First, we must decide that evidence, as we weighed it,

“does not prove that the appellant is guilty beyond a

reasonable doubt.” Id. Second, we “must be clearly

convinced of the correctness of this decision.” Id.

a. Abusive Sexual Contact

To convict Appellant of abusive sexual contact

without consent, the Government was required to

prove the following two elements beyond a reasonable

doubt: (1) that Appellant committed sexual contact

upon LW, and (2) that Appellant did so without LW’s

consent. Manual for Courts-Martial, United States

(2019 ed.) (MCM), pt. IV, ¶ 60.b.(4)(d).

“Sexual contact” includes “touching or causing

another person to touch, either directly or through the

clothing, the . . . buttocks of any person, with an intent

to . . . gratify the sexual desire of any person.” MCM,

pt. IV, ¶ 60.a.(g)(2).

‘“[C]onsent’ means a freely given agreement to the

conduct at issue by a competent person. An expression

of lack of consent through words or conduct means

there is no consent.” MCM, pt. IV, ¶ 60.a.(g)(7)(A). “All

the surrounding circumstances are to be considered in

46a

determining whether a person gave consent.” MCM,

pt. IV, ¶ 60.a.(g)(7)(C).

“[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.

“Therefore, an honest and reasonable mistake that the

victim consented to the charged sexual contact is an

affirmative defense to abusive sexual contact as it is

to other sexual offenses.” Rodela, 82 M.J. at 526

(citations omitted). “Once raised, the Government

bears the burden to prove beyond a reasonable doubt

that the defense does not exist.” Id. (citing R.C.M.

916(b)(1)) (additional citation omitted).

b. Conduct Unbecoming an Officer and a

Gentleman

To convict Appellant as charged of conduct

unbecoming an officer and a gentleman, the

Government was required to prove the following two

elements beyond a reasonable doubt: (1) that

Appellant did a certain act, to wit: become unduly

familiar with SM—a subordinate and married

woman—by making unwanted and inappropriate

comments to her in the workplace, including

communicating the words “I love you,” and “You are

the type of girl I usually go after,” or words to that

effect; and (2) that, under the circumstances, the act

47a

constituted conduct unbecoming an officer and

gentleman. MCM, pt. IV, ¶ 90.b.

Conduct in violation of Article 133, UCMJ, is

action or behavior in an official capacity

which, in dishonoring or disgracing the

person

officer,

seriously

compromises the officer’s character as a

gentleman, or action or behavior in an

unofficial or private capacity which, in

dishonoring or disgracing the officer

personally, seriously compromises the

person’s standing as an officer.

MCM, pt. IV ¶ 90.c.(2).

An officer’s conduct need not violate

other provisions of the UCMJ or even be

otherwise criminal to violate Article 133,

UCMJ. The gravamen of the offense is

that the officer’s conduct disgraces him

personally . . . . Clearly, then, the

appropriate standard for assessing

criminality under Article 133 is whether

the conduct or act charged is

dishonorable and compromising as

hereinbefore

spelled

out—this

notwithstanding whether or not the act

otherwise amounts to a crime.

United States v. Lofton, 69 M.J. 386, 388–89 (C.A.A.F.

2011) (quoting United States v. Schweitzer, 68 M.J.

133, 137 (C.A.A.F. 2009)).

The offense of conduct unbecoming an officer and a

gentleman includes actions which are “indicated by

acts of dishonesty, unfair dealing, indecency,

48a

indecorum, lawlessness, injustice, or cruelty.” MCM,

pt. IV, ¶ 90.c.(2).

Though it need not amount to a crime,

[the conduct] must offend so seriously

against law, justice, morality or decorum

as to expose to disgrace, socially or as a

man, the offender, and at the same time

must be of such a nature or committed

under such circumstances as to bring

dishonor or disrepute upon the military

profession which he represents.

. . . If the act, though ungentlemanlike,

be of a trifling character, involving no

material prejudice to individual rights,

or offence against public morals or

decorum, it will not in general properly

be viewed as so affecting the reputation

of the officer or the credit of the service

as to be made the occasion of a

prosecution under [Article 133, UCMJ].

United States v. Brown, 55 M.J. 375, 382 (C.A.A.F.

2001) (ellipsis in original) (quoting William Winthrop,

MILITARY LAW AND PRECEDENTS 711–12 (2d ed. 1920

reprint)). “The conduct must impugn the honor or

integrity of the officer or subject him to social

disgrace. . . . Article 133[, UCMJ,] is reserved for

serious delicts of officers and should not be demeaned

by using it to charge minor derelictions.” United States

v. Murchison, No. ACM 32412, 1997 CCA LEXIS 442,

at *5 (A.F. Ct. Crim. App. 20 Aug. 1997) (unpub. op.)

(citations omitted). “‘Unbecoming’ . . . is understood to

mean

not

merely

inappropriate

unsuitable, . . . but morally

unbefitting

and

49a

unworthy.” Id. at *5–6 (ellipses in original) (citations

omitted); see also United States v. Rogers, 54 M.J. 244,

255–56 (C.A.A.F. 2000) (holding “conduct morally

unfitting and unworthy, rather than merely

inappropriate or unsuitable, misbehavior which is

more than opposed to good taste or propriety”).

Conduct unbecoming an officer and a gentleman

under Article 133, UCMJ, is a general intent crime.

“[G]eneral intent merely requires [t]he intent to

perform [the actus reus] even though the actor does not

desire the consequences that result. . . . [A] general

intent mens rea would require only that [the

a]ppellant intended to commit the conduct alleged in

each specification . . . .” United States v. Voorhees, 79

M.J. 5, 16 (C.A.A.F. 2019) (first, second, and third

alterations in original) (citations omitted). The

subjective motivation of an accused is relevant to a

charge under Article 133, UCMJ. United States v.

Diaz, 69 M.J. 127, 136 (C.A.A.F. 2010).

“The test for a violation of Article 133, UCMJ, is

‘whether the conduct has fallen below the standards

established for officers.’” Id. at 135 (quoting United

States v. Conliffe, 67 M.J. 127, 132 (C.A.A.F. 2009)

(additional citation omitted)). A determination of

whether the conduct charged is unbecoming of an

officer and a gentleman includes “taking all the

circumstances into consideration.” Id. at 136 (citation

omitted). “Such circumstances incorporate the concept

of honor.” Id. “[E]vidence of honorable motive may

inform a factfinder’s judgment as to whether conduct

is unbecoming an officer.” Id.

Before an officer can be convicted of an offense

under Article 133, UCMJ, “[d]ue process requires ‘fair

50a

notice’ that an act is forbidden and subject to criminal

sanction.” United States v. Vaughan, 58 M.J. 29, 31

(C.A.A.F. 2003) (citing United States v. Bivins, 49 M.J.

328, 330 (C.A.A.F. 1998)); see also United States v.

Anderson, 60 M.J. 548, 554 (A.F. Ct. Crim. App. 2004)

(“[T]he issue is whether a reasonable military member

would know that his or her conduct was servicediscrediting (and, therefore, punishable under the

Article).”). The question is whether a “reasonable

military officer would have no doubt that the activities

charged . . . constituted conduct unbecoming an

officer.” United States v. Frazier, 34 M.J. 194, 198

(C.M.A. 1994) (footnote omitted) (citing Parker v.

Levy, 417 U.S. 733, 757 (1974)).

2. Analysis

Regarding the abusive sexual contact offense, we

find the Government presented convincing evidence of

Appellant’s guilt beyond a reasonable doubt. LW’s

testimony specifically described how Appellant

initiated a hug and “used his left hand and grabbed

[her] right butt cheek” without her consent. LW then

described how she immediately pushed him away, and

that Appellant told her “[he] just had to try.” On

appeal, Appellant argues that if the “butt touch

happened” that it was only done to assess LW’s

interest in Appellant and was not done to gratify his

sexual desires. We find that a rational trier of fact

could conclude the fact that Appellant’s decision to

initiate a hug and to grab a part of LW’s body—her

buttocks, which is considered a private area—to gauge

her romantic interest is in itself evidence that could be

used to establish that he touched LW’s buttocks to

gratify his sexual desire. The factfinders, i.e., the

officer members, in this case also had the benefit of

51a

Capt BA’s testimony concerning Appellant’s behavior

before the sexual contact occurred and his impressions

of the effect that Appellant’s behavior had on LW.

Here, Capt BA’s testimony on both points is consistent

with LW’s testimony. Furthermore, we find nothing in

the evidence demonstrated that Appellant would have

had a reasonable belief that LW consented to being

inappropriately touched by him. Moreover, we find it

unreasonable for Appellant to think he had consent to

grab the buttocks of another person who had

expressed no romantic interest in him.

As to the conduct unbecoming an officer and a

gentleman offense, we find the Government again

provided convincing evidence of Appellant’s guilt

beyond a reasonable doubt. Here, the Government

provided evidence through the direct testimony of SM,

who was married, worked directly for Appellant, and

to whom Appellant made unwanted and inappropriate

romantic comments at work. She testified about how

his behavior and comments made her feel

uncomfortable and that she tried not to look at him

both during and after he made the unsolicited and

unwanted comments. The Government’s evidence also

included Appellant’s own words to demonstrate that

he knew his conduct fell below moral attributes

required of both an officer and a gentleman. Appellant

argues on appeal that this interaction did not rise to

the level of severity necessary to prove conduct

unbecoming an officer and a gentleman. We disagree.

Here, the evidence demonstrated that Appellant told

his married subordinate, “I love you” and “that [she]

was the type of girl [he] usually goes after,” while they

were at work. He further acknowledged to SM that he

knew that she might find his words “cringy” and also

52a

that he “kn[e]w there is this line here and [he] kn[e]w

not to cross it,” which indicates he understood that his

actions and comments were unwanted and

inappropriate. We find that based on the evidence

presented, a rational trier of fact could find

Appellant’s actions, in an official capacity, were both

dishonorable and disgraceful to Appellant as an

officer, and that his actions seriously compromised

Appellant’s character as a gentleman.

In conclusion, viewing the evidence in the light

most favorable to the Prosecution, we find that a

rational trier of fact could have found the essential

elements of both offenses beyond a reasonable doubt.

See Robinson, 77 M.J. at 297−98. As to the factual

sufficiency of these offenses, we assume without

deciding that Appellant properly made a request for a

factual sufficiency review by asserting a specific

showing of a deficiency of proof as required under

Article

66(d)(1)(B)(i),

UCMJ,

U.S.C.

§ 866(d)(1)(B)(i). However, having given appropriate

deference to the fact that the court members saw and

heard the witnesses and other evidence, the court is

not clearly convinced that Appellant’s convictions for

both offenses were against the weight of the evidence.

Thus, the findings are factually sufficient as well.

B. Post-Trial Delay

We consider sua sponte whether Appellant is

entitled to relief because this court did not render a

decision within 18 months of docketing.

53a

1. Additional Background

On 23 December 2022, Congress amended Articles

66 and 69, UCMJ, 10 U.S.C. §§ 866, 869. 7 As

amended, Article 66(b)(1)(A), UCMJ, 10 U.S.C.

§ 866(b)(1)(A), expanded the jurisdiction of the service

CCAs to any judgment of a special or general courtmartial, irrespective of sentence, that included a

finding of guilty.

Appellant was sentenced on 13 January 2023.

Appellant’s sentence did not meet the jurisdictional

requirements for automatic appeal to this court.

Article 66(b)(3), UCMJ, 10 U.S.C. § 866(b)(3). On 12

May 2023, Appellant received a notice from

Headquarters Third Air Force informing him of his

right to appeal his conviction pursuant to Article

66(b)(1)(A), UCMJ. On 14 July 2023, Appellant filed

with this court a timely notice of direct appeal

pursuant to Article 66(b)(1)(A), UCMJ, and this court

docketed his case on 14 August 2023. After the

certified verbatim transcript was delivered to this

court, Appellant moved for 13 enlargements of time,

almost all of which were opposed by the Government.

On 14 January 2025, Appellant filed his assignments

of error brief with the court. On 12 February 2025, the

Government filed their answer brief. Appellant then

filed a reply brief on 19 February 2025.

At no time has Appellant made a demand for

speedy appellate review, nor has he claimed prejudice

regarding the post-trial processing of his appeal.

7 National Defense Authorization Act for Fiscal Year 2023, Pub.

L. No. 117-263, § 544, 136 Stat. 2395, 2582–84 (23 Dec. 2022).

54a

2. Law

We review the question of whether an appellant’s

due process rights are violated because of post-trial

delay de novo. United States v. Livak, 80 M.J. 631, 633

(A.F. Ct. Crim. App. 2020).

In United States v. Moreno, the United States

Court of Appeals for the Armed Forces (CAAF)

identified thresholds for facially unreasonable delay

during three particular segments of the post-trial and

appellate process. 63 M.J. 129, 136 (C.A.A.F. 2006).

Specifically, our superior court established a

presumption of facially unreasonable delay where: (1)

the convening authority did not take action within 120

days of the completion of trial, (2) the record was not

docketed with the CCA within 30 days of the

convening authority’s action, or (3) the CCA did not

render a decision within 18 months of docketing. 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

55a

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).

“In the absence of a due process violation, this

court considers whether relief for excessive post-trial

delay is warranted consistent with this court’s

authority under Article 66(d), UCMJ, 10 U.S.C.

§ 866(d).” Livak, 80 M.J. at 632; see also United States

v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United

States v. Gay¸ 74 M.J. 736, 744 (A.F. Ct. Crim. App.

2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).

3. Analysis

We consider whether Appellant is entitled to relief

because a decision on his appeal was not rendered by

this court within 18 months of his case being docketed

with this court.

We begin our analysis with the assumption that

while the post-trial procedures of Appellant’s appeal

are different than the appeal procedures in place at

the time Moreno and its progeny were decided, that

the right to speedy appellate review continues under

these new procedures. We also determine that the 18month Moreno standard for facially unreasonable

delay from docketing with this court to appellate

decision still applies to determine if an appellant’s due

process right to speedy appellate review has been

violated. Therefore, since a decision by this court on

56a

Appellant’s case was not rendered within 18 months

of 14 August 2023, a facially unreasonable post-trial

delay has been established in Appellant’s case.

Finding a facially unreasonable post-trial delay,

we now assess whether a due process violation

occurred. After considering the four Barker factors we

conclude that no due process violation occurred and

thus no relief is warranted. We do not find the delay

in this case so egregious as to “adversely affect the

public’s perception of the fairness and integrity of the

military justice system.” Toohey, 63 M.J. at 362.

Finally, recognizing our authority under Article 66(d),

UCMJ, we have also considered whether relief for

excessive post-trial delay is appropriate even in the

absence of a due process violation. See Tardif, 57 M.J.

at 225. After considering the factors enumerated in

Gay, 74 M.J. at 744, we conclude it is not.

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).

Accordingly, the findings and sentence are

AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

57a

Constitutional, Statutory,

Provisions Involved

and

Regulatory

1. Due Process Clause of the Fifth Amendment

The Due Process Clause of the Fifth Amendment

provides: “No person shall . . . be deprived of life,

liberty, or property, without due process of law.” U.S.

CONST. amend. V.

2. The Jury Trial Clause of the Sixth Amendment

provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an

impartial jury of the state and district wherein the

crime shall have been committed . . . .” Id., amend. VI.

3. Article 16 of the Uniform Code of Military Justice

(UCMJ) provides:

§816. Art. 16. Courts-martial classified

(a) In General.-The three kinds of courtsmartial in each of the armed forces are the

following:

(1) General courts-martial, as described in

subsection (b).

(2) Special courts-martial, as described in

subsection (c).

(3) Summary courts-martial, as described in

subsection (d).

(b) General Courts-martial.-General courtsmartial are of the following three types:

58a

(1) A general court-martial consisting of a

military judge and eight members, subject to

sections 825(e)(3) and 829 of this title (articles

25(e)(3) and 29).

(2) In a capital case, a general court-martial

consisting of a military judge and the number

of members determined under section 825a of

this title (article 25a), subject to sections

825(e)(3) and 829 of this title (articles 25(e)(3)

and 29).

(3) A general court-martial consisting of a

military judge alone, if, before the court is

assembled, the accused, knowing the identity of

the military judge and after consultation with

defense counsel, requests, orally on the record

or in writing, a court composed of a military

judge alone and the military judge approves the

request.

martial are of the following two types:

courts-

(1) A special court-martial consisting of a

military judge and four members, subject to

sections 825(e)(3) and 829 of this title (articles

25(e)(3) and 29).

(2) A special court-martial consisting of a

military judge alone(A) if the case is so referred, subject to

section 819 of this title (article 19) and such

limitations as the President may prescribe by

regulation; or

59a

(B) if the case is referred under

paragraph (1) and, before the court is

assembled, the accused, knowing the identity of

the military judge and after consultation with

defense counsel, requests, orally on the record

or in writing, a court composed of a military

judge alone and the military judge approves the

request.

(d) Summary Court-martial.-A summary courtmartial consists of one commissioned officer.

10 U.S.C. § 816.

4. Article 51(a) of the UCMJ provides:

(a) Voting by members of a general or special

court-martial on the findings and on the

sentence shall be by secret written ballot. The

junior member of the court shall count the

votes. The count shall be checked by the

president, who shall forthwith announce the

result of the ballot to the members of the court.

10 U.S.C. § 851(a).

5. Article 52(a) of the UCMJ provides, in relevant

part:

No person may be convicted of an offense in a

general or special court-martial, other

than . . . in a court-martial with members

under section 816 of [title 10, U.S. Code] (article

16), by the concurrence of at least three-fourths

of the members present when the vote is taken.

10 U.S.C. § 852(a).

60a

6. Rule for Courts-Martial 921(c) is a presidentially

prescribed procedural rule for general and special

courts-martial. It provides, in relevant part:

(1) Secret ballot. Voting on the

findings

for

each

charge

and

specification shall be by secret written

ballot. All members present shall vote.

(2) Numbers of votes required to

convict. A finding of guilty results only if

at least three-fourths of the members

present vote for a finding of guilty.

(3) Acquittal. If fewer than threefourths of the members present vote for

a finding of guilty, a finding of not guilty

has resulted as to the charge or

specification on which the vote was

taken.

Rule for Courts-Martial 921(c), MANUAL FOR COURTSMARTIAL, UNITED STATES (2024 ed.).

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.