Petition for Writ of Certiorari — Jakalien J. Cook, Petitioner v. United States

APPENDIX

TABLE OF CONTENTS

C.A.A.F. Opinion, United States v. Cook,

No. 24-0221 (August 28, 2025) ............................ 1a

Air Force CCA Decision, United States v. Cook,

No. ACM 40333 (July 3, 2024) .......................... 20a

Dept. of the Army Pamphlet 27-9,

Military Judges’ Benchbook, Excerpts

(February 29, 2020) ............................................ 93a

Trial Transcript Excerpts ....................................... 99a

1a

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Jakalien J. COOK, Airman

United States Air Force, Appellant

No. 24-0221

Crim. App. No. 40333

Argued May 20, 2025—Decided August 28, 2025

Military Judges: Christopher D. James (Article 30a,

UCMJ, proceedings) and Colin P. Eichenberger (trial)

For Appellant: Captain Michael J. Bruzik (argued);

Lieutenant Colonel Allen S. Abrams, Major Megan R.

Crouch, and Major Matthew Blyth.

For Appellee: Captain Tyler L. Washburn (argued);

Colonel Matthew D. Talcott, Lieutenant Colonel Jenny

A. Liabenow, and Mary Ellen Payne, Esq. (on brief).

Chief Judge OHLSON delivered the opinion of the

Court, in which Judge SPARKS, Judge MAGGS,

Judge HARDY, and Judge JOHNSON joined.

_______________

Chief Judge OHLSON delivered the opinion of the

Court.

2a

We hold that an appellant’s claim that a military

judge incorrectly calculated the maximum authorized

punishment for an offense—and thereby deprived the

appellant of a fair sentencing proceeding—is subject

to general waiver principles. We further hold that

Appellant in the instant case waived such a claim at

trial.

Overview

Appellant was convicted, among other offenses, of

one specification of illegal transportation of aliens1

within the United States in violation of Article 134,

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

934 (2018). The parties agreed that because of the

facts in this case, the charged offense carried a

maximum penalty of twenty-five years of

confinement. The military judge adopted this

maximum penalty calculation and then sentenced

Appellant to twenty-four months of confinement for

this offense. On appeal to the United States Air Force

Court of Criminal Appeals (CCA), Appellant argued

that the military judge erred in his maximum

punishment computation. See United States v. Cook,

No. ACM 40333, 2024 CCA LEXIS 276, at *3, 2024 WL

3326992, at *1 (A.F. Ct. Crim. App. July 3, 2024)

(unpublished). Appellant further asserted, among

other challenges, that the evidence was factually

insufficient to support his convictions surrounding his

illegal transportation of aliens. Id. at *3-4; 2024 WL

3326992, at *1. The CCA rejected these contentions

and affirmed. Id. at *4-5, *80, 2024 WL 3326992, at

*2, *29.

1 “The term ‘alien’ means any person not a citizen or national of

the United States.” 8 U.S.C. § 1101(a)(3) (2018).

3a

This Court granted review of four issues:

I. Whether Appellant’s convictions for

transporting aliens and conspiring to transport

aliens are factually sufficient.

II. Whether the lower court erroneously

interpreted and applied the amended factual

sufficiency standard under Article 66(d)(1)(B),

UCMJ.

III. Whether an appellant can waive the

military

judge’s

incorrect

maximum

punishment calculation that tripled Appellant’s

punitive exposure.

IV. Whether the military judge erred in

calculating the maximum punishment for the

offense of illegally transporting aliens as a

violation of 8 U.S.C. § 1342.

United States v. Cook, 85 M.J. 336 (C.A.A.F. 2025)

(order granting review).

Starting with Issue III, we hold that an accused

can waive an objection to the military judge’s

maximum punishment calculation. Because we

further hold that Appellant waived that objection in

this case, Issue IV is moot. Upon turning to Issue I, we

hold that in accordance with our recent decision in

United States v. Csiti, No. 24-0175, 2025 CAAF LEXIS

349, at *7-8, 2025 WL 1374415, at *3-4 (C.A.A.F. May

8, 2025), this Court does not have the statutory

authority to review the factual sufficiency of the

evidence. We end with Issue II and hold that the CCA

did not abuse its discretion in applying the amended

factual sufficiency standard. We therefore affirm the

CCA’s decision.

4a

I. Background

The Government charged Appellant, an Airman

(E-2) stationed at Davis-Monthan Air Force Base,

Arizona, with one specification of conspiracy to

transport aliens, one specification of absence without

leave, one specification of breach of restriction, one

specification of wrongful use of a controlled substance,

one specification of obstruction of justice, one

specification of illegal possession of a firearm, one

specification of illegal possession of ammunition, and

one specification of illegal transportation of aliens, in

violation of Articles 81, 86, 87b, 112a, 131b, and 134,

UCMJ, 10 U.S.C. §§ 881, 886, 887b, 912a, 931b, 934

(2018). He proceeded to a contested trial on the illegal

possession of a firearm, illegal possession of

ammunition, illegal transportation of aliens,

conspiracy to transport aliens, and obstruction of

justice specifications.2

The focus of this appeal centers on the specification

alleging that Appellant:

did, within the State of Arizona, on or about 22

August 2021, transport [MFL], [ONA], [POM],

[TMV], and [ONC] within the United States by

means of [a] passenger vehicle, knowing or in

reckless disregard that they were aliens that

entered the United States in violation of the

law, in violation of 8 United States Code § 1324,

an offense not capital.

Because illegally transporting aliens within the

United States is not an enumerated offense under the

2 Appellant was found guilty, consistent with his pleas, of the

absence without leave, breach of restriction, and wrongful use of

a controlled substance offenses.

5a

UCMJ, the Government charged Appellant under

clause 3 of Article 134 with violating 8 U.S.C. §

1324(a)(1)(A)(ii)

(2018),

which

criminalizes

“transport[ing]” aliens within the United States.

Relevant to this appeal, an individual who violates 8

U.S.C. § 1324(a)(1)(A)(ii) faces a maximum of five

years of imprisonment “for each alien in respect to

whom such a violation occurs.” Id. § 1324(a)(1)(B)

(emphasis added). As can be seen above, the

specification at issue alleged that Appellant illegally

transported five named aliens.

Before trial, the Government provided Appellant’s

defense counsel and the military judge with proposed

instructions on the maximum punishment calculation

for the Article 134 offense. This instruction stated that

“the maximum penalty for this offense, under 8 U.S.C.

§ 1324(a)(1)(A)(ii), is no more than five (5) years’

confinement for each alien in respect to whom such a

violation occurs.” (Emphasis added.) At trial, the

military judge discussed the Government’s proposed

instructions with the parties, leading to the following

exchange:

[Military Judge]: I believe it is labeled or

marked as, the Government’s Proposed

Instructions, through email that you agreed

with those instructions and maximum

sentences articulated. But just to have that on

the record, is that accurate?

[Defense Counsel]: That is accurate, Your

Honor.

[Military Judge]: Anything else we need to get

on the record or handle before we recall the

members?

[Trial Counsel]: No, Your Honor.

6a

[Defense Counsel]: No, Your Honor.

A general court-martial composed of officer and

enlisted members subsequently convicted Appellant,

contrary to his pleas, of illegal transportation of

aliens, conspiracy to transport aliens, and obstruction

of justice.3 Appellant chose military judge-alone

sentencing. At sentencing, the military judge again

addressed the maximum punishment calculation for

Appellant’s Article 134 offense. The military judge

inquired what trial counsel was “relying upon for the

maximum penalty” for this offense. Trial counsel

explained that he calculated the maximum

punishment of twenty-five years of confinement by

adding together the five-year maximum periods of

confinement applicable for each of the five aliens

Appellant transported. The military judge asked

Appellant’s defense counsel if he agreed with that

calculation, to which he responded “Yes, Your Honor.”

The military judge then calculated a maximum

punishment based on all of Appellant’s offenses as “57

years and two months’ confinement, dishonorable

discharge, total forfeiture, and reduction to E-1.” The

military judge asked whether Appellant’s defense

counsel agreed with this calculation, to which he

stated, “Yes, Your Honor.” The military judge

sentenced Appellant to a dishonorable discharge,

confinement for twenty-seven months—which

included twenty-four months for the Article 134

After the Government rested its case-in-chief, the military

judge raised and granted sua sponte a Rules for Courts Martial

(R.C.M.) 917 (2019 ed.) motion for findings of not guilty on the

illegal possession of a firearm and illegal possession of

ammunition specifications.

3

7a

offense—forfeiture of all pay and allowances, and

reduction in pay grade to E-1.

Despite his counsel’s repeated agreement with the

maximum penalty calculation at trial, Appellant

appealed to the CCA arguing, among other things,

that the military judge incorrectly calculated the

maximum punishment for his Article 134 offense.

Cook, 2024 CCA LEXIS 276, at *3, 2024 WL 3326992,

at *1. (Appellant asserted before the CCA that the

maximum punishment was actually five years of

confinement rather than twenty-five years of

confinement. Id. at *57, 2024 CCA LEXIS 276, 2024

WL 3326992, at *20.) He further argued that his

convictions were factually insufficient. Id. at *3, 2024

CCA LEXIS 276, 2024 WL 3326992, at *1. As to

Appellant’s maximum punishment calculation claim,

the CCA found that his “trial defense counsel’s

affirmative concurrence with the calculation at trial

waived this issue.” Id. at *59, 2024 CCA LEXIS 276,

2024 WL 3326992, at *21. Turning to Appellant’s

contention that the evidence was factually

insufficient, the CCA applied the recently amended

version of Article 66(d)(1)(B), UCMJ, 10 U.S.C. §

866(d)(1)(B) (Supp. III 2019-2022). Id. at *21-22, 2024

CCA LEXIS 276, 2024 WL 3326992, at *7-8.4 The CCA

explained that it “recently analyzed this new

statutory standard for factual sufficiency in United

States v. Csiti, No. ACM 40386, 2024 CCA LEXIS 160,

(A.F. Ct. Crim. App. 29 Apr. 2024)” and would “adhere

to the Csiti framework in analyzing and applying the

new factual sufficiency standard.” Applying this

4 We recently analyzed the amended Article 66 factual sufficiency

standard in United States v. Harvey, 85 M.J. 127, 129-31

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

8a

standard, the CCA rejected Appellant’s assertion that

the evidence was factually insufficient to support the

guilty findings. Cook, 2024 CCA LEXIS 276, at *3839, 2024 WL 3326992, at *13-14.

As stated above, this Court then granted review on

issues regarding the maximum punishment

calculation for Appellant’s Article 134 offense and the

factual sufficiency of his convictions. Cook, 85 M.J. at

336.

II. Maximum Punishment Calculation Claims

Issues III and IV ask, respectively, whether an

appellant can waive a military judge’s incorrect

maximum punishment calculation, and whether the

military judge in this case erred in his maximum

punishment calculation for the Article 134 offense. Id.

A. Standard of Review

“We consider the issue of waiver as a question of

law under a de novo standard of review.” United

States v. Rosenthal, 62 M.J. 261, 262 (C.A.A.F. 2005).

B. Waiver

“ ‘Waiver is different from forfeiture. Whereas

forfeiture is the failure to make the timely assertion

of a right, waiver is the intentional relinquishment or

abandonment of a known right.’ ” United States v.

Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (internal

quotation marks omitted) (quoting United States v.

Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed.

2d 508 (1993)). Put differently, “ ‘[a] forfeiture is

basically an oversight; a waiver is a deliberate

decision not to present a ground for relief that might

be available in the law.’ ” United States v. Campos, 67

M.J. 330, 332 (C.A.A.F. 2009) (quoting United States

v. Cook, 406 F.3d 485, 487 (7th Cir. 2005)). “While

9a

there are no ‘magic words’ dictating when a party has

sufficiently raised an error to preserve it for appeal, of

critical importance is the specificity with which

counsel makes the basis for his position known to the

military judge.” United States v. Killion, 75 M.J. 209,

214 (C.A.A.F. 2016) (citation omitted) (quoting United

States v. Smith, 50 M.J. 451, 456 (C.A.A.F. 1999)).

“[W]e review forfeited issues for plain error,” but

“we cannot review waived issues at all because a valid

waiver leaves no error for us to correct on appeal.”

United States v. Rich, 79 M.J. 472, 476 (C.A.A.F. 2020)

(internal quotation marks omitted) (citation omitted).

C. Discussion

The core of Appellant’s argument is that he could

not, and therefore did not, waive his claim that the

military judge incorrectly calculated the maximum

punishment for the Article 134 offense. Appellant

grounds this argument on the assertion that the

military judge’s miscalculation of the maximum

punishment “violated [his] right to a fair sentencing

proceeding as prescribed by the U.C.M.J. and the

Rules for Courts-Martial.” Secondarily, Appellant

argues that even if this claim was waivable, his

defense counsel’s actions at trial were not sufficient to

“trigger” that waiver. As will be explained, we

disagree with both arguments.5

Appellant also contends the Government failed to properly

allege a violation of 8 U.S.C. § 1324 through clause 3 of Article

134 because the specification omitted an element for an offense

under 8 U.S.C. § 1324(a)(1)(A)(ii) and the specification did not

allege a clause 1 or clause 2 Article 134 offense without the

terminal element. Because this Court did not grant review on the

question of the specification’s alleged omission of a § 1324

element or an Article 134 terminal element, “this assertion lies

outside the scope of the granted issue[s], and we decline to

5

10a

1. A Maximum Punishment Calculation Error

Claim Can Be Waived

We conclude that a maximum punishment

calculation error claim is waivable. This conclusion is

consistent

with

Supreme

Court

precedent

establishing that “[a] criminal defendant may

knowingly and voluntarily waive many of the most

fundamental

protections

afforded

by

the

Constitution.” United States v. Mezzanatto, 513 U.S.

196, 201, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995); see

also Peretz v. United States, 501 U.S. 923, 936, 111 S.

Ct. 2661, 115 L. Ed. 2d 808 (1991) (recognizing that

“[t]he most basic rights of criminal defendants are . . .

subject to waiver”). The Supreme Court has applied

this “general rule” in finding that appellants waived a

broad array of constitutional claims. New York v. Hill,

528 U.S. 110, 114, 120 S. Ct. 659, 145 L. Ed. 2d 560

(2000).6

discuss it further.” United States v. Wilson, 84 M.J. 383, 389

(C.A.A.F. 2024). To the extent that Appellant claims that the

omission of an element is jurisdictional, we rejected this position

in United States v. Humphries, 71 M.J. 209, 212-14 (C.A.A.F.

2012).

6 See, e.g., Ricketts v. Adamson, 483 U.S. 1, 10, 107 S. Ct. 2680,

97 L. Ed. 2d 1 (1987) (double jeopardy defense); United States v.

Gagnon, 470 U.S. 522, 528, 105 S. Ct. 1482, 84 L. Ed. 2d 486

(1985) (right to be present at all stages of criminal trial); Boykin

v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274

(1969) (privilege against compulsory self-incrimination, right to

jury trial, and right to confront one’s accusers); Levine v. United

States, 362 U.S. 610, 619, 80 S. Ct. 1038, 4 L. Ed. 2d 989 (1960)

(closure of courtroom and right to public trial); Johnson v. Zerbst,

304 U.S. 458, 465, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) (right to

counsel); Segurola v. United States, 275 U.S. 106, 111, 48 S. Ct.

77, 72 L. Ed. 186 (1927) (right against unlawful search and

seizure).

11a

While the general rule presuming the availability

of waiver is broad, it is not without limitations. See

United States v. Josefik, 753 F.2d 585, 588 (7th Cir.

1985) (“No doubt there are limits to waiver; if the

parties stipulated to trial by 12 orangutans the

defendant’s

conviction

would

be

invalid

notwithstanding his consent, because some minimum

of civilized procedure is required by community

feeling regardless of what the defendant wants or is

willing to accept.”). But these limits “are narrow and

relate to situations in which, on its face, the

prosecution may not constitutionally be maintained,”

United States v. Bradley, 68 M.J. 279, 282 (C.A.A.F.

2010), thereby leaving a court with “no power to enter

the conviction or impose the sentence” in the first

place. United States v. Broce, 488 U.S. 563, 569, 109

S. Ct. 757, 102 L. Ed. 2d 927 (1989). For example, this

Court has held that an appellant cannot “ ‘waive his

right to appeal a sentence that is unlawful because it

exceeds the statutory maximum.’ ” United States v.

Dinger, 77 M.J. 447, 452 (C.A.A.F. 2018) (quoting

United States v. Guillen, 561 F.3d 527, 531, 385 U.S.

App. D.C. 216 (D.C. Cir. 2009)).

Against this backdrop, there is an insufficient

basis to exclude from the general waiver rule

Appellant’s claim that the military judge incorrectly

calculated the maximum authorized punishment. As

Appellant concedes in his brief, even if the military

judge erred in his maximum punishment calculation,

Appellant still received a sentence within the

statutorily authorized limits. And considering this

Court has previously held that appellants can waive

challenges to issues as significant as a military judge’s

failure to include key elements in his panel

instructions, we do not see an adequate reason to

12a

handle Appellant’s claim differently. See Rich, 79 M.J.

at 475-76; United States v. Smith, 2 C.M.A. 440, 442,

9 C.M.R. 70, 72 (1953).

Appellant also argues that as a matter of binding

precedent, we are compelled to conclude that

Appellant could not waive his claim regarding the

military judge’s incorrect calculation of the maximum

authorized punishment. In doing so, he primarily

relies on United States v. Harden, 24 C.M.A. 76, 1 M.J.

258, 51 C.M.R. 249 (C.M.A. 1976), and claims that

“[t]his Court held that a challenge to [this type of]

miscalculation could not be waived.” We disagree,

however, with the assertion that Harden—or any of

our other precedents—sets forth a blanket prohibition

against waivers of this nature. We note preliminarily

that in Harden this Court discussed how the degree of

miscalculation must be “substantial” and its effects

must be “material” in order for such a claim to be

deemed nonwaivable. Id. at 259-60. But more

importantly for the purposes of this appeal, Harden is

distinguishable from the instant case for one

fundamental reason: Harden involved a guilty plea

and the offense at issue in Appellant’s case does not.

And the explicit holding in Harden was that “a plea of

guilty may be improvident because it is ‘predicated

upon a substantial misunderstanding on the accused’s

part of the maximum punishment to which he is

subject.’ ” Id. at 259 (emphasis added) (citations

omitted). In other words, the Harden court declined to

find waiver on the part of the appellant when there

was a substantial and material discrepancy between

the actual maximum authorized punishment and the

improperly

calculated

maximum

authorized

punishment because implicit in a plea agreement is

that an accused understands and accepts the

13a

consequences of the agreement’s essential terms. Id.

at 260. This understanding and acceptance were

absent from the agreement in Harden because the

large discrepancy between the actual maximum term

of confinement and the miscalculated maximum term

of confinement undermined the conclusion that the

appellant made a deliberate, intelligent choice

between available alternatives in entering the plea.

Id. These concerns obviously are not present in the

instant case where Appellant opted for a contested

trial on the Article 134 offense.

2. Appellant’s Claim About an Incorrect

Calculation of the Maximum Authorized

Punishment Does Not Implicate His Due

Process Rights

Appellant further argues that his claim that the

military judge incorrectly calculated his maximum

authorized punishment implicates his fundamental

due process right to a fair sentencing process.

Accordingly, he asserts that even if his claim in this

case is deemed waivable, this Court must apply the

heightened standard applicable to constitutional

rights when deciding whether waiver actually

occurred. See Jones, 78 M.J. at 44. Specifically,

Appellant states: “Fundamental rights cannot be

waived through counsel’s lack of objection, but require

that the record show the accused understood the right

at issue and intentionally waived it.”

In pursuing this argument, Appellant likens the

military judge’s alleged incorrect calculation of the

maximum authorized punishment in the instant case

to a district court judge’s mistaken computation of the

appropriate United States Sentencing Guidelines

(hereinafter the Guidelines) range in a federal civilian

14a

case.7 And in Molina-Martinez v. United States, the

Supreme Court held that a miscalculation of the

applicable range under the Guidelines “itself can, and

most often will, be sufficient to show a reasonable

probability of a different outcome absent the error.”

578 U.S. 189, 198, 136 S. Ct. 1338, 194 L. Ed. 2d 444

(2016).

We note, however, that the Supreme Court’s

holding in Molina-Martinez rested on the “centrality

of the Guidelines in the sentencing process,” and the

fact that the Guidelines range has a “real and

pervasive effect” upon the ultimate sentence imposed.

Id. at 199-200. In contrast, “[u]nlike the Guidelines,

which district courts are required to use as the

‘starting point’ for sentencing, to ‘remain cognizant of

. . . throughout the sentencing process,’ and to ‘explain

the decision to deviate from,’ statutory ranges merely

set the floor and the ceiling within which a district

court must sentence.” United States v. Payano, 930

F.3d 186, 194 (3d Cir. 2019) (alteration in original)

(quoting Molina-Martinez, 578 U.S. at 198-99). As can

be seen then, federal circuit courts have recognized

that a statutory maximum calculation does not have

the same practical effect in the sentencing process as

a Guidelines computation. Accordingly, they have

uniformly declined to extend the presumption of

prejudice applicable to an erroneous calculation of the

Guideline range to those cases involving an erroneous

calculation of the statutory maximum penalty. See,

e.g., United States v. Dominguez, 128 F.4th 226, 233

(4th Cir. 2025); United States v. Calderon-Padilla, 136

F.4th 1270, 1274 (10th Cir. 2025); Payano, 930 F.3d at

See, e.g., U.S. Sent’g Comm’n, Guidelines Manual § 3E1.1

(2024).

7

15a

193-96; United States v. McCloud, 730 F.3d 600, 603

(6th Cir. 2013). Put simply, the “Guidelines range and

a statutory range do not have commensurate effects

on the final sentence imposed.” Payano, 930 F.3d at

194.

This legal distinction made in federal civilian

courts is particularly apt in the military justice

context. It is important to note that the Manual for

Courts-Martial explicitly states how a military judge

must decide upon a punishment to impose—and there

is no mention whatsoever of the statutory maximum

punishment. Specifically, Article 56(c)(1), UCMJ, 10

U.S.C. § 856(c)(1) (2018), provides that a “courtmartial shall impose punishment that is sufficient,

but not greater than necessary, to promote justice and

to maintain good order and discipline in the armed

forces.” (Emphasis added.); see also R.C.M. 1002(f)(3)

(2019 ed.) (stating the same).8 Thus, rather than

directly affecting how a military judge settles upon an

appropriate penalty to impose, the statutory

maximum authorized punishment instead serves to

8 This process is consistent with R.C.M. 1006(d)(3)(A) (2019 ed.)

which is applicable to member sentencing and provides that any

member may propose a sentence for the panel’s consideration,

and the order for these proposals “begin[s] with the least severe”

and “continu[es], as necessary, with the next least severe” until

a sentence is adopted. (We note that members sentencing is being

phased out of the military justice system in noncapital cases.

Congress recently amended Article 53, UCMJ, 10 U.S.C. § 853

(2018), to provide for military judge-alone sentencing in such

cases. See National Defense Authorization Act for Fiscal Year

2022, Pub. L. No. 117-81, § 539E(a), (f), 135 Stat. 1541, 1700,

1706 (2021) (providing that the provisions regarding military

judge-alone sentencing “shall apply to sentences adjudged in

cases in which all findings of guilty are for offenses that occurred

after the date that is two years after the date of the enactment of

[the] Act”).)

16a

“delineate the outer bounds of the [judge’s] discretion

in imposing a penalty.” McCloud, 730 F.3d at 603. And

in the instant case, the military judge’s adjudged

sentence of twenty-four months of confinement for the

Article 134 offense did not approach the maximum

authorized punishment of five years which Appellant

now contends was the correct calculation.

Accordingly, we conclude that Appellant’s claim

does not implicate his due process rights because the

correctness of the military judge’s maximum

punishment calculation did not inherently undermine

the fairness of the sentencing process.

3. Appellant Waived His Maximum Punishment

Calculation Challenge

Because

the

military

judge’s

maximum

punishment calculation did not implicate Appellant’s

fundamental rights, waiver of this claim could be

“effected by action of [his] counsel.” Hill, 528 U.S. at

114. And the record demonstrates that Appellant’s

defense counsel affirmatively waived any claim of

error regarding this issue.9

Appellant alternatively contends this Court should decline

finding waiver because the “underlying issue of how the

maximum sentence should be calculated” is unsettled law. But

Appellant’s approach ignores that the focus of waiver is on the

nature of the right relinquished, Hill, 528 U.S. at 114, and not

the merits of the underlying claim based on the state of the law.

See United States v. Nguyen, 235 F.3d 1179, 1184 (9th Cir. 2000)

(“The whole point of waiver . . . is the relinquishment of claims

regardless of their merit.”). Contrary to Appellant’s view, “we

should expect counsel to object when the law is unsettled and a

certain interpretation is favorable to their client.” United States

v. Oliver, 76 M.J. 271, 276 (C.A.A.F. 2017) (Stucky, C.J.,

concurring in the result). Because an erroneous maximum

punishment calculation is waivable, our inquiry solely concerns

whether defense counsel preserved the issue. See United States

9

17a

The first time the parties discussed the maximum

punishment calculation, the military judge asked

Appellant’s

defense

counsel

whether

the

Government’s proposed sentencing “instructions and

maximum sentences” were “accurate,” and he

responded, “That is accurate, Your Honor.”

The second time the parties discussed the

maximum punishment calculation was in the context

of trial counsel stating that Appellant’s maximum

punishment for his Article 134 offense was twentyfive years of confinement because he transported five

aliens. The military judge asked Appellant’s defense

counsel if he agreed with this calculation to which he

replied, “Yes, Your Honor.”

The parties then discussed the maximum

punishment computation for all of Appellant’s

offenses. Trial counsel proffered, and Appellant’s

defense counsel agreed, that the punishment would be

“57 years and two months’ confinement.” (Subsumed

within this general calculation was the maximum

penalty for Appellant’s Article 134 offense.)

Taken together, Appellant’s defense counsel not

only failed to object to the maximum punishment

calculation, at multiple points he affirmatively agreed

with the proposed calculation adopted by the military

judge. This Court has recognized that a trial defense

counsel’s agreement is akin to a statement of “no

objection,” which is sufficient to constitute affirmative

waiver. See United States v. Haynes, 79 M.J. 17, 19

(C.A.A.F. 2019); see also United States v. Sloman, 909

v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999) (“A waiver of the

right to appeal includes a waiver of the right to appeal difficult

or debatable legal issues—indeed, it includes a waiver of the

right to appeal blatant error.”).

18a

F.2d 176, 182 (6th Cir. 1990) (“An attorney cannot

agree in open court with a judge’s proposed course of

conduct and then charge the court with error in

following that course.”). Therefore, the record

supports the conclusion that Appellant, through his

defense counsel, affirmatively abandoned any claim

regarding the maximum sentence computation,

thereby waiving the issue on appeal before this Court.

Campos, 67 M.J. at 332. And because of this waiver,

we cannot review the question of whether the military

judge actually erred in his maximum punishment

calculation. Rich, 79 M.J. at 476.

III. Factual Sufficiency Challenges

This Court also granted review of two issues

related to whether Appellant’s convictions were

factually sufficient for the offenses of illegally

transporting aliens within the United States and

conspiracy to commit the same. In accordance with

our decision in Csiti, 2025 CAAF LEXIS 349, at *7-8,

2025 WL 1374415, at *3-4, we hold that this Court

does not have the statutory authority to review the

factual sufficiency of the evidence, so we cannot

answer Issue I. As for the lower court’s application of

the amended factual sufficiency standard, the CCA

explained that it would “adhere to the Csiti

framework in analyzing and applying the new factual

sufficiency standard.” Cook, 2024 CCA LEXIS 276, at

*22, 2024 WL 3326992, at *8. Therefore, we reach the

same conclusion as we did in Csiti: there is “nothing

to indicate an abuse of discretion by the [CCA] in

determining what deference to give the court-martial

with respect to any of the evidence.” Csiti, 2025 CAAF

LEXIS 349, at *13-14, 2025 WL 1374415, at *5.

Accordingly, because the CCA did not err in its factual

19a

sufficiency review, Appellant is not entitled to relief

on Issue II.

IV. Conclusion

We answer Issue III in the affirmative and

therefore hold that Issue IV is moot because

Appellant’s waiver leaves us with no error to correct

on appeal. We do not answer Issue I, and we answer

Issue II in the negative. Accordingly, the decision of

the United States Air Force Court of Criminal Appeals

is affirmed.

20a

U NITED S TATES A IR F ORCE

C OURT OF C RIMINAL A PPEALS

________________________

No. ACM 40333

________________________

UNITED STATES

Appellee

v.

Jakalien J. COOK

Airman (E-2), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 3 July 2024

________________________

Military Judge: Christopher D. James (Article

30a); Colin P. Eichenberger.

Sentence: Sentence adjudged 18 February 2022 by

GCM convened at Davis-Monthan Air Force Base,

Arizona. Sentence entered by military judge on 20

April 2022: Dishonorable discharge, confinement

for 27 months, forfeiture of all pay and

allowances, and reduction to E-1.

For Appellant: Major Matthew L. Blyth, USAF;

Major Heather M. Bruha, USAF.

For Appellee: Colonel Zachary T. Eytalis, USAF;

Lieutenant Colonel Thomas J. Alford, USAF;

Lieutenant Colonel James P. Ferrell, USAF;

Major Olivia B. Hoff, USAF; Mary Ellen Payne,

Esquire.

21a

Before RICHARDSON, DOUGLAS, and WARREN

Appellate Military Judges.

Judge WARREN delivered the opinion of the

court, in which Senior Judge RICHARDSON and

Judge DOUGLAS joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4

________________________

WARREN, Judge:

Appellant faced eight specifications at a general

court-martial and entered mixed pleas to these

offenses. Appellant pleaded guilty to one specification

of absence without leave (AWOL), in violation of

Article 86, Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 886; one specification of breach of

restriction, in violation of Article 87b, UCMJ, 10

U.S.C. § 887b; and one specification of wrongful use of

a controlled substance (marijuana) on divers

occasions, in violation of Article 112a, UCMJ, 10

U.S.C. § 912a.1 The military judge found these pleas

provident and entered findings of guilty.

As to the remaining specifications, a general courtmartial composed of officer and enlisted members

convicted Appellant, contrary to his pleas, of one

1 Unless otherwise noted, all references in this opinion to the

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

Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,

United States (2019 ed.).

22a

specification of illegally transporting aliens2 within

the United States, in violation of clause 3 of Article

134, UCMJ, 10 U.S.C. § 934 (incorporating the noncapital offense of 8 U.S.C. § 1324); one specification of

conspiring to illegally transport aliens within the

United States, in violation of Article 81, UCMJ, 10

U.S.C. § 881;3 and one specification of obstructing

justice, in violation of Article 131b, UCMJ, 10 U.S.C.

§ 931b.4 The military judge sentenced Appellant to a

dishonorable discharge, confinement for 27 months,

forfeiture of all pay and allowances, and reduction in

rank to the grade of E-1. The convening authority took

no action on the findings and approved the sentence

in its entirety.

Appellant asserts 14 issues on appeal, summarized

as follows: (1) whether Appellant’s conviction for

transporting aliens unlawfully in the United States is

factually insufficient; (2) whether Appellant’s

conspiracy specification fails to state an offense

because it does not allege conspiracy to commit an

offense under the UCMJ; (3) whether Appellant’s

conviction for conspiracy to transport aliens in the

United States is factually insufficient; (4) whether the

“Aliens” is a term utilized in 8 U.S.C. § 1324. See 8 U.S.C.

§ 1101 (a)(3) (“The term “alien” means any person not a citizen

or national of the United States.”).

2

The specifications of illegally transporting aliens and

conspiring to illegally transporting aliens incorporate the noncapital offense of 8 U.S.C. § 1324.

3

After the Government rested its case-in-chief, the military

judge raised and granted sua sponte an R.C.M. 917 motion for

findings of not guilty on the two remaining specifications under

Article 134, UCMJ, incorporating the non-capital offense of 18

U.S.C. § 922(g) for illegal possession of a firearm and

ammunition by a drug abuser.

4

23a

military judge abused his discretion in denying a

defense motion to dismiss based on the Government’s

deportation of witnesses to the alleged offenses before

trial; (5) whether omission of the Government’s

closing argument slides—with embedded videos in

evidence and played to the members—necessitates

remand for correction; (6) whether the military judge

abused his discretion when he allowed the

Government to introduce the criminal history of one

of the aliens as aggravation evidence at sentencing; (7)

whether the military judge and parties incorrectly

calculated the maximum punishment (as to the

transporting and conspiracy to transport aliens

offenses),

thereby

impermissibly

“tripling”

Appellant’s total punitive exposure; (8) whether

Appellant’s sentence is inappropriately severe; (9)

whether Appellant’s sentence to confinement for the

specifications of Charge I and Charge II (AWOL and

breaking restriction) exceeded the maximum

punishment for each offense; (10) whether relief is

required because the convening authority failed to

provide reasoning for denying Appellant’s requests for

deferment of reduction in rank and forfeitures; (11)

whether Appellant is entitled to Moreno, or

alternatively, Tardif relief because of the 200-day

delay between announcement of the sentence and

docketing with this court;5 (12) whether Appellant

was denied a constitutional right to a unanimous

verdict; (13) whether Appellant’s conviction for

obstruction of justice is factually and legally

sufficient; and (14) whether Appellant’s convictions

for transporting aliens and conspiracy to transport

5 “Moreno” and “Tardif” refer to United States v. Moreno, 63 M.J.

129 (C.A.A.F. 2006) and United States v. Tardif, 57 M.J. 219

(C.A.A.F. 2002).

24a

aliens are legally sufficient.6 Finally, we identified one

additional issue requiring analysis: (15) whether

Appellant is entitled to Moreno relief because more

than 18 months elapsed from the docketing of

Appellant’s case to the issuance of our decision.

We have carefully considered issues (10), (12), and

(13) and find Appellant is not entitled to 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)). We find Appellant is entitled to relief

for issue (9) and order appropriate action in our

decretal paragraph. As to Appellant’s remaining

issues and our additional issue, we find no error that

materially prejudices a substantial right of Appellant

and affirm the findings and the sentence.

I. BACKGROUND

Appellant was apprehended by law enforcement

for suspected illegal transportation of five Mexican

nationals near the Arizona-Mexico border on 22

August 2021. At that time, Appellant, who was

stationed at Davis-Monthan Air Force Base (AFB),

Arizona, was pending administrative separation from

the Air Force after only two years of his six-year

enlistment owing to his prior wrongful marijuana

use.7

6 Appellant personally raises issues (13) and (14)

pursuant to

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

7 Appellant received nonjudicial punishment on 24 June 2021 for

multiple marijuana uses between 15 April 2021 and 7 June 2021.

Appellant engaged in approximately six additional marijuana

uses between on or about 8 June 2021 and on or about 21

September 2021, for which Appellant was convicted, consistent

with his pleas, of violation of Article 112a, UCMJ, 10 U.S.C.

§ 912a, at this court-martial.

25a

Appellant’s involvement in transporting and

conspiring to transport five Mexican nationals came

about after his close friend, QM, a former Airman

discharged in June 2021, replied to a Snapchat

message from an unknown person on 14 August 2021

offering “easy money” for transporting Mexican

nationals upon entering the United States. While only

QM received and responded to this Snapchat message,

phone records presented at trial indicated QM called

Appellant on Sunday, 22 August 2021, at

approximately 1100. By 1230, Appellant had arranged

to extend a one-day rental contract for a white Jeep

Cherokee SUV, which Appellant and QM had picked

up the day before at the Tucson International Airport,

Arizona, located near Davis-Monthan AFB.

Thereafter, at approximately 2230 on 22 August

2021, Sergeant CM of the Arizona Department of

Public Safety (DPS) apprehended Appellant and QM

in Appellant’s rental vehicle along with five Mexican

nationals near Hereford, Arizona, less than 10 miles

from the border, but over 90 miles from Appellant’s

duty station. The five Mexican nationals were dressed

in camouflage and wearing “carpet shoes” that

obscured their footprints.8 These Mexican nationals

were strangers to Appellant and QM, who had picked

them up after an unknown caller from a Mexican area

code contacted QM via WhatsApp at least eight times

that evening.

After the group was pulled over and detained by

Sergeant CM, there was an interval of approximately

30 minutes before agents from U.S. Customs and

A border patrol agent testified at trial these are made of

“carpet” material, and undocumented noncitizens often wear

them over their existing shoes so as to not leave footprints.

8

26a

Border Protection (USCBP) responded to the scene.

Appellant and QM each “factory reset” their phones

sometime between the time of the vehicle stop and

their respective interviews by USCBP agents. This

erased all call logs, voicemail, and text messages from

their phones. This act formed the basis for Appellant’s

conviction of obstruction of justice, in violation of

Article 131b, UCMJ.

USCBP agents ultimately released Appellant and

QM at approximately 0700 on 23 August 2021, after

notifying Air Force officials that Appellant had been

arrested and detained on suspicion of illegally

transporting aliens. As a result of his arrest and

detention, Appellant was unable to report for duty as

scheduled on 23 August 2021, thus forming the basis

for his conviction of absence, without authority, from

his place of duty, in violation of Article 86, UCMJ.

Finally, after reporting back to base on 23 August

2021 and being interviewed by investigators from the

Security Forces Office of Investigations (SFOI),

Appellant’s commander restricted him to base on 24

August 2021. Appellant broke this restriction the

same evening, resulting in the conviction for violation

of Article 87b, UCMJ.

II. DISCUSSION

A. Failure to State an Offense—Conspiracy

Appellant argues, for the first time on appeal, that

the specification in Additional Charge I alleging

conspiracy to transport aliens fails to state an offense

because (1) the offense as described in the charge

sheet does not explicitly identify Article 134, UCMJ,

as the predicate offense; and (2) even if it did, 8 U.S.C.

§ 1324 is not an “offense under this chapter” within

the meaning of Article 81, UCMJ, even if incorporated

27a

via Article 134, UCMJ. For the reasons set forth

below, we are unpersuaded.

1. Additional Background

At trial, the parties agreed during discussion of the

findings instructions that the predicate offense for the

conspiracy charge was Article 134, UCMJ,

incorporating 8 U.S.C. § 1324 under clause 3 as a

“crime or offense not capital.” Without objection by

trial defense counsel, the military judge took judicial

notice 8 U.S.C. § 1324 is a “crime or offense not

capital” and provided the members with a findings

instruction to this effect. Appellant did not challenge

Additional Charge I and its specification at trial for

failure to state an offense.

2. Law

Whether a specification fails to state an offense is

a question of law which this court reviews de novo.

United States v. Turner, 79 M.J. 401, 404 (C.A.A.F.

2020) (citation omitted).

“A specification is a plain, concise, and definite

statement of the essential facts constituting the

offense charged. A specification is sufficient if it

alleges every element of the charged offense expressly

or by necessary implication; however, specifications

under Article 134[, UCMJ,] must expressly allege the

terminal element[,]” such as being prejudicial to good

order and discipline, service discrediting, or a crime or

offense not capital. Rule for Courts-Martial (R.C.M.)

307(c)(3). This requirement is meant to “give the

accused notice” of the charges he must defend and

“protect him against double jeopardy.” United States

v. Dear, 40 M.J. 196, 197 (C.M.A. 1994) (citing R.C.M.

307(c)(3) (1984)) (additional citation omitted). “[I]n

order to state the elements of an inchoate offense

28a

under Articles 80 and 81, UCMJ, a specification is not

required to expressly allege each element of the

predicate offense.” United States v. Norwood, 71 M.J.

204, 205, (C.A.A.F. 2012) (footnote omitted).

“However, sufficient specificity is required so that an

accused is aware of the nature of the underlying target

or predicate offense — particularly in the context of

an underlying Article 134, UCMJ, offense.” Id. at 207.

A specification is viewed with “maximum

liberality” when attacked for the first time on appeal.

Turner, 79 M.J. at 403 (citation omitted). In other

words, challenges after trial “will be viewed with

greater tolerance and . . . liberally construed in favor

of validity.” Id. at 405 (alteration, internal quotation

marks and footnote omitted). A reviewing court may

consider the entire record of trial in deciding whether

a specification as alleged necessarily implied all the

essential elements. See United States v. Hamilton, 82

M.J. 530, 534 (A. Ct. Crim. App. 2022) (“[W]e are not

only confined to the text of the specification, we next

look to the record to see if the specification’s wording .

. . necessarily implied [the elements of the offense and]

therefore gave appellant sufficient notice of the

offense he must defend himself against.”).

Article 81(a), UCMJ, provides: “Any person subject

to this chapter who conspires with any other person to

commit an offense under this chapter[9] shall, if one or

more of the conspirators does an act to effect the object

of the conspiracy, be punished as a court-martial may

direct.” (Emphasis added).

Article 134, UCMJ, provides, in the pertinent part:

9 Chapter 47, 10 United States Code: the UCMJ.

29a

Though not specifically mentioned in this

chapter, . . . crimes and offenses not capital, of

which persons subject to this chapter may be

guilty, shall be taken cognizance of by a

general, special, or summary court-marital,

according to the nature and degree of the

offense, and shall be punished at the discretion

of that court.

8 U.S.C. § 1324(a)(1)(A)(ii) punishes one who:

knowing or in reckless disregard of the fact that

an alien has come to, entered, or remains in the

United States in violation of law, transports, or

moves or attempts to transport or move such

alien within the United States by means of

transportation or otherwise, in furtherance of

such violation of law.

“As a general rule, crimes and offenses not capital,

as defined by Federal statutes, may be properly tried

as offenses under clause (3) of Article 134.” United

States v. Perkins, 47 C.M.R. 259, 263 (A.F.C.M.R.

1973). “[A]n offense charged under the third clause of

Article 134 is just as much ‘an offense under’ the

[UCMJ] as is an offense alleged under the first two

clauses of that Article or under any other punitive

article.” United States v. Craig, 19 M.J. 166, 169

(C.M.A. 1985) (affirming Article 80, UCMJ, attempt

conviction for underlying Article 134, UCMJ, clause 3

offense); see also United States v. Ashworth, NMCCA

201500028, 2015 CCA LEXIS 373, at *11 (N.M. Ct.

Crim. App. 3 Sep. 2015) (unpub. op.) (affirming Article

82, UCMJ, 10 U.S.C. § 882, solicitation conviction

with underlying offense of distribution of child

pornography proscribed in 18 U.S.C. § 2252

assimilated into Article 134, UCMJ, clause 3 offense).

30a

Statutory interpretation is a question of law we

review de novo. United States v. Wilson, 76 M.J. 4, 6

(C.A.A.F. 2017) (citation omitted). “Unless the text of

a statute is ambiguous, ‘the plain language . . . will

control unless it leads to an absurd result.’” United

States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013)

(quoting United States v. King, 71 M.J. 50, 52

(C.A.A.F. 2012)) (additional citation omitted).

“Whether the statutory language is ambiguous is

determined ‘by reference to the language itself, the

specific context in which that language is used, and

the broader context of the statute as a whole.’” United

States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014)

(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997)).

3. Analysis

Appellant contends it is “questionable” whether an

accused may be convicted of conspiracy to violate

Article 134, UCMJ, based on an assimilated offense

outside the UCMJ. We hold, however, that the

language of Article 81, UCMJ, that permits

criminalizing a conspiracy to commit any offense

“under this chapter” includes offenses under clause 3

of Article 134, UCMJ. Both our predecessor court and

our superior court have concluded the term “crimes

and offenses not capital” includes all non-capital

federal criminal statutes. See Perkins, 47 C.M.R. at

263; see also Craig, 19 M.J. at 169 (“This

interpretation of the relationship between Articles 80

and 134 does not violate the canon of statutory

construction that penal statutes should be construed

strictly because it merely gives effect to the clear

meaning of the language of the [UCMJ].”). Moreover,

Congress recently reaffirmed its intent to give Article

134, UCMJ, broad scope and boundaries, which

31a

undermines Appellant’s policy argument that such a

construction provides too wide a berth of prosecutorial

discretion. National Defense Authorization Act for

Fiscal Year 2017, Pub. L. No. 114-328, § 5451, 130

Stat. 2000, 2958 (2016) (expanding the reach of clause

3 of Article 134, UCMJ, by explicitly providing

extraterritorial jurisdiction for all “crimes and

offenses not capital” incorporated under this clause).

Here, viewing the specification at issue with

“maximum liberality” we find it alleges a UCMJ

violation by implication. See Turner, 79 M.J. at 402.

That is, even though the conspiracy specification

referenced only 8 U.S.C. § 1324 and did not explicitly

identify clause 3 of Article 134 as the predicate

offense, the language used is sufficient to effectively

plead the conspiracy specification under the facts of

this case. It put Appellant on actual notice of the

predicate offense. The parties below clearly

understood the underlying offense of the conspiracy

charge was under clause 3 of Article 134,

incorporating the non-capital offense of 8 U.S.C.

§ 1324. The purpose of charging is to provide adequate

notice of the nature of the offense to be defended at

trial and to prevent double jeopardy for the charged

specification after trial. Dear, 40 M.J. at 197. The

language of this specification does both by implication,

when viewed in the context of the entire charge sheet,

including Specification 1 of Charge IV, which alleged

a violation under clause 3 of Article 134, expressly

incorporating transportation of aliens in violation of 8

U.S.C. § 1324 as the crime or offense not capital.

Appellant is not persuasive in arguing that he lacked

notice of the conspiratorial conduct he needed to

defend against when he was also charged with a

substantive offense involving the same conduct

32a

(transporting aliens), and he does not profess any

confusion as to the misconduct alleged in that charge.

B. Legal and Factual Sufficiency of Appellant’s

Transporting Aliens and Conspiracy to

Transport Aliens

Appellant challenges the legal and factual

sufficiency of his convictions for transporting aliens in

the United States, in violation of Article 134, UCMJ,

and conspiracy to commit the same, in violation of

Article 81, UCMJ. As to Appellant’s factual sufficiency

challenge to those convictions, this case calls upon us

to apply the new standard of review set forth by

Congress in the 2021 amendments to Article 66(d),

UCMJ, 10 U.S.C. § 866(d). See William M. (Mac)

Thornberry National Defense Authorization Act for

Fiscal Year 2021 (FY21 NDAA), Pub. L. 116-283,

§ 542(b), 134 Stat. 3611, 3661–62 (1 Jan. 2021).

1. Additional Background

Appellant and his civilian co-conspirator, QM, had

served together in the Security Forces Squadron at

Davis-Monthan AFB prior to QM’s separation from

active duty. QM described their relationship as

“brothers.”

In August 2021, QM was unemployed and

desperate for money to provide for his fiancée and the

first child they were expecting. On approximately

14 August 2021, QM received a Snapchat message

from an unknown correspondent in response to QM

posting a story about how he needed “money, money,

money.” This correspondent offered QM a chance to

make $500.00 per person transporting undocumented

aliens within the United States. QM agreed.

33a

Appellant rented a SUV on 21 August 2021,

initially for one day. QM called Appellant at

approximately 1100 on Sunday, 22 August 2021, the

day of the charged misconduct. Approximately one

hour and twenty minutes later, Appellant and QM

were at the Tucson International Airport together

extending that rental for an additional day, although

each owned his own vehicle. Appellant paid for and

was listed as the primary driver for this rented

vehicle.

Later that afternoon, Appellant and QM drove

south from Tucson to Sierra Vista, Arizona,

purportedly for sightseeing, and then north to

Phoenix to drop off QM’s fiancée. Appellant and QM

then traveled back to Sierra Vista while taking turns

driving during this half-day-long journey. On the way,

QM’s iPhone repeatedly rang showing a WhatsApp

number with a foreign “53” area code visible on the

Apple CarPlay display.

Appellant and QM reached Sierra Vista at

approximately 2230 hours, with QM now driving the

vehicle. At some point, they turned off the main

highway and traveled on a dirt road near Hereford,

Arizona, less than ten miles from the Mexico border.

They stopped their vehicle and a man dressed in gray

clothing spoke with QM briefly. Then the man in gray

opened the trunk of Appellant’s rental SUV and five

people entered—three into the back seat and two into

the rear hatch area. Appellant and QM did not know

any of them. The man in gray did not enter the vehicle,

but yelled, “Dale, dale, dale,” meaning “go on” in

Spanish.

As they drove away, Appellant noticed their five

passengers apparently ducking as Appellant’s rental

34a

vehicle passed a marked Arizona DPS squad car, with

Appellant purportedly exclaiming: “[W]hy the f[**]k is

they ducking?!” QM continued to drive the rental

vehicle about two miles before Sergeant CM

apprehended Appellant, QM, and the five passengers.

Sergeant CM found Appellant in the passenger seat

and a Glock-45 pistol registered to Appellant stored in

the console with a 33-round magazine with 15 rounds

of ammunition loaded. Sergeant CM observed the five

other passengers dressed in camouflage, wearing

“carpet shoes,” with a strong “dirty, sweaty, musty”

odor, and feigning sleep. None of them spoke English.

Sergeant CM contacted USCBP for assistance for

suspected alien smuggling. Sergeant CM observed

Appellant and QM with their mobile phones as he

called for assistance. Homeland Security agents later

arrived and questioned QM and Appellant in the early

morning hours of 23 August 2021. By then, their

phones had been “factory reset,” wiping away their

call logs, text messages, and voice mail.

QM initially insisted to Homeland Security that he

was merely exploring when driving slowly on a dirt

road near midnight in a remote area near the Mexican

border. He claimed he drove slowly to avoid potholes

and chose not to use his GPS to get home. QM also

claimed he did not expect to find people but gave them

a ride because it was dark.

QM’s explanation changed after the interviewing

agents indicated they did not believe him and were

deciding whether to charge him criminally. QM then

admitted he desperately needed money, so he

responded to the Snapchat message offering payment

for “picking up some Mexicans and driving them.”

While QM admitted his own misconduct, he tried to

35a

shield Appellant from blame. QM insisted the gun

found in the vehicle did not belong to either of them

and Appellant did not know in advance that they

would pick up “Mexicans” to transport.

Homeland Security agents also interviewed

Appellant. He denied any prior knowledge of a plan to

pick up the “Mexicans.” He claimed he rented the

vehicle just to go sightseeing with QM and his

girlfriend. At first, Appellant told the agents his own

vehicle was “broken.” He later admitted his vehicle

was not broken, but claimed it had been at a Firestone

repair store for about a week for diagnosis before a

planned trip to Florida, but he could not get to it for

unspecified reasons. Appellant also denied owning the

gun found in the rental vehicle, claiming it belonged

to someone named “Taylor.”

After discovering that Appellant and QM had

factory reset their phones, and therefore had no

contact information for the person who had contacted

QM via WhatsApp, Homeland Security released

Appellant and QM at approximately 0700 on 23

August 2021. Appellant returned to Davis-Monthan

AFB, where investigators from the SFOI interviewed

him later that day. Appellant reasserted his claim he

rented the vehicle for sightseeing while his own

vehicle was “broken” and “in the shop.” Appellant

continued to insist the gun was not his. Appellant did

not provide an address or street reference for the

Firestone shop and muttered softly “just Firestone”

when the interviewing agents specifically asked

Appellant for the address of the specific Firestone

location. Contrary to his previous version of events,

Appellant now claimed he sold his Glock-45 pistol to a

person named “Lloyd” in March 2020 and had

executed a bill of sale for the transaction.

36a

Follow-on investigation by SFOI refuted many of

Appellant’s statements. SFOI canvassed the three

closest Firestone locations to Davis-Monthan AFB but

found no evidence Appellant’s vehicle had received

services there at the timeframes Appellant claimed.

Investigators also obtained a Bureau of Alcohol,

Tobacco and Firearms Form 4473 showing Appellant

purchased the Glock-45 on 19 January 2021, making

his claimed sale to “Lloyd” in March 2020

chronologically impossible. SFOI also searched

Appellant’s room but did not find a bill of sale to

“Lloyd” or anyone else. SFOI did, however, find a

Glock-45 gun case with a sticker matching the serial

number of the pistol seized from the rental SUV.

The Government introduced various forms as

evidence at trial pertaining to the five Mexican

nationals. Two had an Alien File (A-File), indicating

prior interaction with the immigration system. Ms.

TMV’s A-File indicated she was removed from the

country on 5 September 2021. Mr. ONA’s A-File

showed he was previously removed in September

2017.

2. Law

a. Legal Sufficiency

We review issues of legal sufficiency de novo.

United States v. Harrington, 83 M.J. 408, 414

(C.A.A.F. 2023) (citing United States v. King, 78 M.J.

218, 221 (C.A.A.F. 2019)). “The test for legal

sufficiency is whether, after viewing the evidence in

the light most favorable to the prosecution, any

rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”

United States v. Robinson, 77 M.J. 294, 297–98

(C.A.A.F. 2018) (citation omitted). “[T]he term

37a

‘reasonable doubt’ does not mean that the evidence

must be free from any conflict . . . .” King, 78 M.J. at

221 (citation omitted). The test for legal sufficiency

“gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” United States v. Oliver,

70 M.J. 64, 68 (C.A.A.F. 2011) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1973)). “[I]n resolving

questions of legal sufficiency, [an appellate court is]

bound to draw every reasonable inference from the

evidence of record in favor of the prosecution.” United

States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)

(citations omitted). Thus, “[t]he standard for legal

sufficiency involves a very low threshold to sustain a

conviction.” King, 78 M.J. at 221 (alteration in

original) (citation omitted). “[T]he [G]overnment is

free to meet its burden of proof with circumstantial

evidence.” Id. (citation omitted).

b. Factual Sufficiency

Historically, the Courts of Criminal Appeals

(CCAs) have also conducted a de novo review of the

factual sufficiency of the evidence. See United States

v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)

(citation omitted). The long-standing test for factual

sufficiency, rooted in the prior versions of Articles 66,

UCMJ, 10 U.S.C. § 866, required the CCAs to “take ‘a

fresh, impartial look at the evidence,’ applying

‘neither a presumption of innocence nor a

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

determination as to whether the evidence constitutes

proof of each required element beyond a reasonable

doubt.’” United States v. Wheeler, 76 M.J. 564, 568

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

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

38a

version of Article 66(c), UCMJ, in effect prior to 1

January 2019), aff’d, 77 M.J. 289 (C.A.A.F. 2018); see

also United States v. Rodela, 82 M.J. 521, 525 (A.F.

Ct. Crim. App. 2021) (citing Wheeler and applying the

same factual sufficiency test in the context of Article

66(d), UCMJ, effective 1 January 2019).

However, the National Defense Authorization Act

for Fiscal Year 2021 amended Article 66, UCMJ, to

modify our factual sufficiency review as follows:

(B) Factual SUFFICIENCY REVIEW.

(i) In an appeal of a finding of guilty under

subsection (b), the Court may consider

whether the finding is correct in fact upon

request of the accused if the accused

makes a specific showing of a deficiency

in proof.

(ii) After an accused has made such 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.

39a

FY21 NDAA, Pub. L. No. 116-283, § 542, 134 Stat. at

3611; 10 U.S.C. § 866(d)(1)(B) (Manual for CourtsMartial, United States (2024 ed.) (2024 MCM)). The

new factual sufficiency standard applies to courtsmartial in which every finding of guilty in the entry of

judgment is for an offense occurring on or after 1

January 2021. FY21 NDAA, Pub. L. No. 116-283,

§ 542(e)(2), 134 Stat. 3611, at 3661–62. This court

recently analyzed this new statutory standard for

factual sufficiency in United States v. Csiti, No. ACM

40386, 2024 CCA LEXIS 160 (A.F. Ct. Crim. App. 29

Apr. 2024) (unpub. op.).10 As will be further explained

in the law and analysis sections, infra, we continue to

adhere to the Csiti framework in analyzing and

applying the new factual sufficiency standard. See

Csiti, unpub. op. at *17–23.

In analyzing the new factual sufficiency standard

under Article 66(d)(1), UCMJ (2024 MCM), we begin

with the principles of statutory interpretation. “In the

absence of a statutory definition, the plain language

10 We are aware that two of our sister courts issued published

opinions addressing the new standard. See United States v. Coe,

84 M.J. 537, 542–43 (A. Ct. Crim. App. 2024) (en banc); United

States v. Scott, 83 M.J. 778, 779–80 (A. Ct. Crim. App. 2023),

rev’d on other grounds, ___ M.J. ___, No. 24-0063/AR, 2024 CAAF

LEXIS 68 (C.A.A.F. 1 Feb. 2024); United States v. Harvey, 83

M.J. 685, 690–94 (N.M. Ct. Crim. App. 2023), rev. granted, ___

M.J. ___, No. 23-0239/NA, 2024 CAAF LEXIS 13 (C.A.A.F. 10

Jan. 2024). These CCAs each held the new statute made it more

difficult than previously for an appellant to secure relief on

appeal for factual insufficiency. See Coe, 84 M.J. at 542 (“[W]e

emphasize that our role in a factual sufficiency review is not to

substitute ourselves for the factfinder and decide what verdict we

would have rendered.”); Scott, 83 M.J. at 780; Harvey, 83 M.J. at

693.

40a

of a statute will control unless it is ambiguous or leads

to an absurd result.” United States v. Cabuhat, 83

M.J. 755, 765 (A.F. Ct. Crim. App. 2023) (en banc)

(citing United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F.

2007)). Inquiry into the plainness or ambiguity of a

statute’s meaning “must cease if the statutory

language is unambiguous and ‘the statutory scheme is

coherent and consistent.’” Robinson, 519 U.S. at 340

(quoting United States v. Ron Pair Enterprises, Inc.,

489 U.S. 235, 240 (1989)); see also Cabuhat, 83 M.J. at

766 (quoting Robinson). By contrast, when the text is

ambiguous, reviewing courts may apply the statutory

canons of construction to resolve those ambiguities.

See Cabuhat, 83 M.J. at 765–66 (citing Robinson, 519

U.S. at 341). In construing amended legislation, three

canons of construction are particularly applicable.

First, we “assume that Congress is aware of existing

law when it passes legislation.” United States v.

McDonald, 78 M.J. 376, 380 (quoting Miles v. Apex

Marine Corps, 498 U.S. 19, 32 (1990)). Second, “[w]hen

Congress acts to amend a statute, [courts] presume it

intends its amendment to have real and substantial

effect.” United States v. Matthews, 68 M.J. 29, 37

(C.A.A.F. 2009) (quoting Stone v. Immigration and

Naturalization Service, 514 U.S. 386, 397 (1995)).

Third, the “surplusage canon” provides, “if possible,

every word and every provision is to be given effect

and that no word should be ignored or needlessly be

given an interpretation that causes it to duplicate

another provision or to have no consequence." United

States v. Sager, 76 M.J. 158, 161 (C.A.A.F. 2017).

c. Transporting Aliens

At Appellant’s court-martial, the Government had

to prove beyond a reasonable doubt that Appellant

violated the Federal Assimilated Crimes Act, an

41a

offense not capital, by transporting illegal aliens in

violation of Article 134, UCMJ. See Manual for

Courts-Martial, United States (2019 ed.) (MCM),

¶ 91.c.(4)(a)(1)(iii). As instructed by the military

judge, the Government was required to prove beyond

a reasonable doubt the elements of 8 U.S.C. § 1324 by

establishing: (1) on or about 22 August 2021, within

the State of Arizona, Appellant knowingly

transported or moved five named individuals to help

them remain in the United States illegally; (2) the

individuals transported or moved were aliens; (3) the

individuals transported or moved were not lawfully in

the United States; (4) Appellant knew or acted in

reckless disregard of the fact the individuals

transported or moved were not lawfully in the United

States; and (5) the charged federal statute, 8 U.S.C.

§ 1324, is an offense not capital. 8 U.S.C.

§ 1324(a)(1)(A)(ii).11,12

The military judge, without objection from the parties,

essentially adopted the pattern jury instructions used by the

United States Court of Appeals for the Ninth Circuit when

advising the court members as to the substantive elements of the

transporting-aliens offense. See MANUAL OF MODEL CRIMINAL

JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE NINTH

CIRCUIT, ¶ 9.2 (2010 ed.) (Last updated Dec. 2019).

11

12 Insofar as this is a Title 8, United States Code, federal offense,

we consult persuasive caselaw from the federal circuit courts to

interpret what is sufficient evidence to meet these elements. The

parties cite to caselaw from several federal circuits. We are not

bound by such interpretations. See United States v. Blanchard,

48 M.J. 306, 310 (C.A.A.F. 1998) (holding the military judge did

not err “by failing to strictly follow selected federal decisions in

making his authenticity determination” (citation omitted)).

However, insofar as the offense occurred within the Ninth

Circuit, we look to the Ninth Circuit caselaw as the most

persuasive in construing the evidentiary requirements of 8

U.S.C. § 1324.

42a

Proof that an alien is not lawfully in the United

States may include circumstantial evidence, including

any suspicious manner of travel upon their entry into

the United States. See United States v. Munoz, 412

F.3d 1043, 1049 (9th Cir. 2005) (citation omitted)

(holding that the aliens’ actions in paying to be

smuggled across the border and hiding in a secret

compartment in a vehicle attempting to cross the

border supported inferences that the aliens were

unlawfully in the United States); see also United

States v. Rivera, NMCCA 200201611, 2005 CCA

LEXIS 42, at *7 (N.M. Ct. Crim. App. 9 Feb. 2005)

(unpub. op.) (finding “overwhelming evidence” where

three aliens (1) were traveling across an international

border concealed in a closed trunk, (2) did not have

entry documentation when interviewed and searched,

(3) did not respond to questions or directions in

English, and (4) were subsequently deported).

d. Conspiracy to Transport Aliens

As charged, to obtain a conviction for conspiracy to

transport aliens, the Government had to prove beyond

a reasonable doubt: (1) Appellant entered into an

agreement with one or more persons to commit an

offense under the UCMJ, to wit: clause 3 of Article

134, incorporating 8 U.S.C. § 1324; and (2) while the

agreement continued to exist, and while Appellant

remained a party to the agreement, Appellant or at

least one of the co-conspirators performed an overt act

for the purpose of bringing about the object of the

conspiracy, to wit: securing a rental vehicle, driving

the vehicle to the United States-Mexico border, and

transporting five Mexican nationals in violation of

law. See 10 U.S.C. § 881(a); MCM, pt. IV, ¶ 5.b.(1).

43a

Proof of an “agreement” creating a conspiracy

“need not be in any particular form or manifested in

any formal words. It is sufficient if the minds of the

parties arrive at a common understanding to

accomplish the object[s] of the conspiracy, and this

may be shown by the conduct of the parties.” MCM,

pt. IV, ¶ 5.c.(2). Further, “[a]n overt act by one

conspirator becomes the act of all without any new

agreement specifically directed to that act and each

conspirator is equally guilty even though each does

not participate in, or have knowledge of, all of the

details of the execution of the conspiracy.” MCM, pt.

IV, ¶ 5.c.(4)(c). It is possible that one may withdraw

from a conspiracy without criminal liability, but only

if that person “abandons or withdraws from the

agreement to commit the offense before the

commission of an overt act by any conspirator[.]”

MCM, pt. IV, ¶ 5.c.(6) (emphasis added).

3. Analysis

Appellant challenges both the factual and legal

sufficiency of his conviction for transporting aliens

asserting that: (1) “the trial did not address whether

[Appellant] ‘acted willfully in furtherance of’ the

individuals’ unlawful status;” (2) “the Government

failed to prove [Appellant’s] purpose in participating

in the pickup and transportation of the aliens;” (3)

“the Government failed to establish that the five

individuals were aliens in the United States

unlawfully;” and (4) the evidence did not prove

Appellant knew or acted in reckless disregard of their

immigration status.

Appellant also challenges the factual and legal

sufficiency of his conspiracy conviction for

transporting aliens by asserting: (1) the Government

44a

failed to present sufficient proof that the

conspiratorial agreement occurred; and (2) the

Government failed to prove that any agreement

between QM and Appellant encompassed every

element of the underlying charged offense (i.e.,

transporting aliens).13

We pause first to clarify the correct analytical lens

for Appellant’s first listed factual sufficiency

challenge. Appellant alleges the military judge’s

instructions that the transportation must “help [the

immigrants] remain [in] the United States illegally”

led to the conviction being factually insufficient

because the instructions did not specifically use the

statutory phrase “in furtherance of” from 8 U.S.C.

§ 1324.14 Notwithstanding Appellant’s novel endeavor

to frame instructional error as “factual sufficiency,”

this particular challenge to his transporting aliens

conviction requires reframing as a legal sufficiency

challenge as it centers on allegations of instructional

error which Appellant waived at trial. Appellant

agreed to the findings instructions on the elements of

these offenses without objection and has

acknowledged such on appeal. Therefore, he has

waived his right to challenge these instructions. See

14 The Government concedes these allegations satisfy Appellant’s

burden under the new factual sufficiency standard to raise a

specific deficiency on appeal. See Article 66(d)(1)(B), UCMJ, 10

U.S.C. § 866(d)(1)(B) (2024 MCM). Accordingly, we now analyze

these specific alleged deficiencies, while reviewing the actual

testimony and evidence in the record under the new “appropriate

deference” standard.

14 Appellant’s brief asserts: “[B]ecause the words ‘in furtherance

of’ were absent from the entire trial, the factfinder was never

required to make the requisite finding of [Appellant]’s purpose in

transporting the immigrants, if any.”

45a

United States v. Davis, 79 M.J. 329, 333 (C.A.A.F.

2020); see also United States v. Gladue, 67 M.J. 311,

313 (C.A.A.F. 2009) (“[W]aiver, ‘the intentional

relinquishment or abandonment of a known right,’

differs from forfeiture, ‘the failure to make the timely

assertion of a right.’” (Baker, J., concurring in the

result) (quoting United States v. Olano, 507 U.S. 725,

733 (1993))). Furthermore, consistent with the

analysis below, we conclude the evidence at trial was

legally sufficient to demonstrate Appellant’s

participation in transporting the five aliens in his

rental SUV was “in furtherance of” their illegal

presence within the United States.

With that, we now address the legal sufficiency of

each offense in turn. We will then analyze the new

Article 66(d)(1)(B), UCMJ, factual sufficiency

standard and apply it to Appellant’s transporting

aliens and conspiracy convictions. For the reasons set

forth below, after having fully reviewed all evidence

admitted during trial, we hold that Appellant’s

convictions were both legally and factually sufficient.

a. Legal Sufficiency: Transporting Aliens

Drawing all reasonable inferences in favor of the

Government for the evidence presented at trial, the

Government provided more than sufficient proof for

each of the four charged elements, supra, for the

transporting aliens offense to meet the “very low

threshold” for legal sufficiency. King, 78 M.J. at 221.

The evidence admitted provides five bases for proving

Appellant

knowingly

participated

in

the

transportation of the five Mexican aliens unlawfully

in the United States: (1) QM’s admissions to USCBP

that QM responded to the Snapchat message agreeing

to transport Mexicans to make “easy money;” (2)

46a

Appellant’s extension of the SUV rental agreement

used to transport the aliens that same day; (3) the

presence of Appellant’s handgun in the center console

(for what Appellant asserted was a mere sightseeing

trip); (4) Appellant’s consciousness of guilt manifest in

his obstruction of justice in factory resetting his

phone; and (5) strong circumstantial evidence the

Mexican nationals were in fact unlawfully in the

United States given their surreptitious method of

travel and mode of dress.

First, QM’s videotaped admissions to USCBP

agents were presented to the trier of fact below and

establish his initial false statements followed by his

ultimate admission of guilt, to wit: (a) QM initially

told investigators, “[W]e were just sightseeing;”

however, (b) QM, in the same interview, admitted he

responded to the Snapchat message for money. While

QM also claimed that Appellant had neither

knowledge of the plan nor of the gun found in the

vehicle rented in Appellant’s name—a rational trier of

fact could be unpersuaded by these assertions (see also

further analysis concerning similar claims by

Appellant, infra).

Before turning to address Appellant’s statements

to law enforcement, we pause to consider one of

Appellant’s key contentions in this brief: QM also told

law enforcement Appellant uttered in surprise “[W]hy

the f[**]k is they [the five aliens] ducking?” after the

Mexican nationals entered the SUV. However, this

statement does not detract from the legal sufficiency

of the evidence because, drawing, as we must, all

reasonable inferences in favor of the Government, we

conclude a rational trier of fact could reasonably

either discount or consider in a different light than

QM’s claim given QM’s close relationship with

47a

Appellant at the time. This, combined with QM’s own

confessed lies to investigators just moments before in

the same interview, significantly undermines the

credibility of QM’s uncorroborated assertion that

Appellant uttered those words. Moreover, the

evidence at trial also supports an inference by a

rational trier of fact that any such comment by

Appellant actually represents circumstantial evidence

of his concern about getting caught (i.e., “ducking”

while inside the SUV is an incriminating, furtive

gesture).

Second, we address Appellant’s explanations in his

interviews with USCBP and SFOI as to the timing

and reason he rented the SUV used to transport the

Mexican nationals. These videotaped interviews were

presented to the trier of fact at trial. However, other

trial evidence contradicted Appellant’s assertions in

these interviews. In convicting Appellant, a rational

trier of fact below could have concluded Appellant’s

self-serving denials as to the plan to pick up and

transport the Mexican nationals were dubious. As to

the timing of Appellant’s decision to extend the rental

car contract, phone records introduced at trial

indicate QM called Appellant at 1130 on the date of

the incident, and that Appellant extended the car

rental one hour later. This fact can rationally be

viewed as more coordinated than coincidental

considering Appellant’s handgun was also in the

rental vehicle. Bringing a handgun for protection

would seem unusual and unnecessary were this all

just a “joyride” and Appellant was merely in the

“wrong place at the wrong time” as trial defense

counsel suggested to the court members. As to

Appellant’s explanations for the purpose of the car

rental, he initially explained that he needed a rental

48a

car for a sightseeing trip with QM because his own car

was at Firestone—purportedly undergoing a ten-day

“diagnostic check;” law enforcement recovered no

evidence to corroborate Appellant’s claim.

Third, more specifically as to the significance of the

presence of the gun found in the center console of the

SUV, both QM and Appellant denied that it was

Appellant’s, and Appellant went so far as to assert he

had previously sold it. A rational trier of fact could

weigh these denials and claims against the

contradictory proof the serial number matched a gun

registered to Appellant, matched the gun case found

in Appellant’s dorm room, and law enforcement did

not recover a bill of sale from Appellant’s dorm room

after a full search of the premises. More telling still,

the original bill of sale ATF form for Appellant’s

purchase of his Glock-45 on 19 January 2021 postdated the time Appellant asserted he “sold” the same

gun to the unknown “Lloyd” in 2020. Viewed in this

light, a rational trier of fact could have concluded

Appellant’s claims were demonstrably false, and

having done so, considered those false claims as

consciousness of guilt as to the underlying

transporting aliens offense.

Fourth, Appellant and QM’s post-arrest activities

also manifest a significant consciousness of guilt,

providing circumstantial evidence of prior planning

and coordination. QM and Appellant factory reset

their phones between the time Sergeant CM initially

detained them and USCBP agents questioned them.

Expert testimony contradicted Appellant’s claim that

he inadvertently factory reset his phone by innocently

mis-entering his personal identification number (PIN)

ten consecutive times. The court members at trial

were free to rely upon these underlying facts for dual

49a

purposes: to find Appellant obstructed justice in

deleting the contents of his phone in anticipation of a

law enforcement investigation against him and as

consciousness of guilt pertaining to Appellant’s

involvement in the plan to, and actual illegal

transportation of, the Mexican aliens. See United

States v. Quezada, 82 M.J. 54, 58 (C.A.A.F. 2021)

(appellant’s false statements during a law

enforcement interview were admissible to prove both

the charged Article 107, UCMJ, false official

statement, and as consciousness of guilt he committed

the separately charged Article 120, UCMJ, sexual

assault offense).

Fifth, the Government presented significant

circumstantial evidence sufficient to demonstrate the

five aliens were unlawfully in the United States. See

King, 78 M.J. at 221 (citations omitted) (holding “the

[G]overnment is free to meet its burden of proof with

circumstantial evidence”); Rivera, 2005 CCA LEXIS

42, at *7 (finding “overwhelming evidence” for reasons

explained supra). QM and Appellant’s rental vehicle

picked up five strangers in the Arizona desert less

than ten miles from the Mexico border while driving

off road and in response to turn-by-turn directions

from an unknown caller with a foreign area code that

continuously texted QM during the moments

preceding their apprehension by USCBP. Sergeant

CM testified these passengers had a distinctive foul,

musty smell of people traveling through the desert.

None of them spoke English and all of them received

instructions in Spanish from a man in the gray shirt

who ushered them into Appellant’s rental SUV. The

aliens wore camouflage and carpet shoes which,

according to the USCBP agent’s testimony, are

commonly donned by people who want to obscure their

50a

footprints and avoid tracking and detection. While the

court members at trial were only presented with

direct evidence that one of the Mexican nationals was

subsequently deported (Ms. TMV on 5 September

2021), they also had evidence that another (Mr. ONA)

had been previously deported. A rational trier of fact

could have relied on this circumstantial evidence to

conclude the other three aliens were likewise in the

country unlawfully.

Finally, one other point bears mentioning in terms

of Appellant’s actual knowledge of the “unlawful

status” of the Mexican nationals in this case. When

USCBP agents asked Appellant if he knew if the

people who boarded his rental car were unlawfully in

the United States, Appellant admitted: “Well, kind of,

yeah, but I didn’t look in the back.” Additionally,

Appellant personally observed all the events listed

above with the exception of the deportations. From

these circumstances, a rational trier of fact had ample

basis to conclude Appellant actual knew or recklessly

disregarded the Mexican nationals’ unlawful status.

Therefore, viewing the evidence in the light most

favorable to the Government, and drawing all

reasonable inferences therefrom, a rational trier of

fact could have found the elements of illegally

transporting aliens as proven beyond a reasonable

doubt.

b. Legal Sufficiency:

Transport Aliens

Conspiracy

to

Appellant asserts his conviction for the conspiracy

to transport aliens is legally and factually insufficient

on two grounds: (1) the Government failed to present

sufficient proof that an agreement occurred; and (2)

the Government failed to prove that any agreement

51a

between QM and Appellant encompassed every

element of the underlying charged offense (i.e.,

transporting aliens). Appellant’s arguments may

essentially be distilled down to this: there was no

direct evidence of an agreement between him and QM.

This claim is unavailing, however, because there was

ample circumstantial evidence from the course of

conduct of Appellant and QM to demonstrate an

agreement.

The Government provided sufficient proof of each

element of Appellant’s conspiracy. The evidence

admitted against Appellant demonstrating he entered

into a conspiratorial agreement with QM to illegally

transport Mexican nationals starts with their

communications prior to renting the SUV. The

substance of those communications is lost because

Appellant factory reset his phone before his interview

by USCBP agents; however, available phone records

show prior coordination between QM and Appellant—

a mere hour and twenty minutes prior to acting in

concert to extend the SUV rental used to transport the

five Mexican nationals.

Further, Appellant’s admissions during his SFOI

interview demonstrate their agreement encompassed

every element of the offense, including their plan to

pick up and transport aliens unlawfully entering the

United States. A careful reading of Appellant’s

professed “surprise” to SFOI investigators that QM

picked up the five Mexican aliens shows Appellant’s

actual prior knowledge of the scheme. In response to

SFOI’s question of why Appellant did not start to ask

questions after he and QM were roaming the Arizona

desert within a few miles of the Mexico border,

Appellant responded: “[W]e were still passing like

border patrol troopers and things like that, so didn’t

52a

think he was going to do it.” That language indicates

Appellant was alert to the presence of border patrol

prior to picking up the Mexican nationals and only

surprised when QM still decided to do so. Appellant’s

candor (perhaps unwitting) further supports that

Appellant’s one-day extension of the SUV and the

appearance of Appellant’s gun in the vehicle were not

a coincidence—they were part of an agreement

between Appellant and QM to transport illegal aliens

for money.

Therefore, viewing the evidence in the light most

favorable to the Government, and drawing all

reasonable inferences therefrom, a rational trier of

fact could have found the elements of conspiracy

proven beyond a reasonable doubt.

c. Factual Sufficiency:

“New” Standard

Analyzing the

We follow this court’s analysis in Csiti in

construing the three key components of the new

Article 66(d)(1)(B), UCMJ, factual sufficiency review:

(1) appellant’s “specific showing of a deficiency of

proof;” (2) the court affording “appropriate deference

to the fact that the trial court saw and heard the

witnesses and other evidence” when we “weigh the

evidence and determine controverted questions of

fact;” and (3) whether the court is “clearly convinced

that the finding of guilty was against the weight of the

evidence.” Unpub. op. at *17–23 (citations omitted).

As in Csiti, after reviewing all the evidence we are not

clearly convinced that the weight of the evidence does

53a

not support the conviction beyond a reasonable

doubt.15

d. Factual Sufficiency: Applying the “new”

standard

We now apply the new factual sufficiency review

standard to Appellant’s assertions that his convictions

for both transporting and conspiring to transport

aliens within the United States are factually

insufficient. Consistent with the evidentiary support

for the convictions detailed above, and cognizant that

the Government may prove its case by circumstantial

evidence, and giving appropriate deference to the fact

that the court-martial members saw and heard the

testimony and other evidence, we are not clearly

We do not agree with Appellant that the phrase “clearly

convinced” is mere surplusage with no substantive impact on our

standard of review. Such an interpretation would be contrary to

the accepted canons of statutory construction. See Sager, 76 M.J.

at 161 (“[I]f possible, every word and every provision is to be

given effect and that no word should be ignored or needlessly be

given an interpretation that causes it to duplicate another

provision or to have no consequence.”); Matthews, 68 M.J. at 37

(quoting Stone, 514 U.S. at 397) (“When Congress acts to amend

a statute, [courts] presume it intends its amendment to have real

and substantial effect.”). For now, suffice it to say that the recent

statutory amendments to the new Article 66, UCMJ, added what

was never present before—an explicit quantum of persuasion

embedded within the explicit text of the statute itself, namely:

“clearly convinced.” Accordingly, we generally concur with the

United States Army Court of Criminal Appeals that “the new

burden of persuasion with its required deference makes it more

difficult for one to prevail on appeal[.]” See Scott, 83 M.J. at 780.

15

Even were we to adopt Appellant’s interpretation of the new

Article 66(d)(1)(B), UCMJ, standard, we ourselves are convinced

beyond a reasonable doubt that Appellant is guilty of these

offenses after having thoroughly reviewed all the evidence and

testimony from the record of trial.

54a

convinced the findings of guilty were against the

weight of the evidence. Accordingly, we find the

convictions factually sufficient.

C. Motion to Dismiss for

Deportation of the Five Aliens

Government’s

U.S. Immigration and Customs Enforcement

removed the five “aliens” referenced above from the

country prior to trial. Appellant filed a motion to

dismiss the charges because this government action

rendered the aliens unavailable to testify on his

behalf. The military judge denied Appellant’s motion

and Appellant now appeals.

Appellant suggests the military judge erred in

finding no due process violation and failing to analyze

this matter as a “lost evidence issue” under R.C.M.

703(e), a provision concerning physical evidence

rather than witness testimony. We find the military

judge did not err.

1. Additional Background

USCBP conducted video-recorded interviews with

Appellant and QM and unrecorded interviews with

the five Mexican nationals. The patrol agent-incharge ultimately declined to prosecute Appellant on

23 August 2021.16 Based upon factual proffers

provided by the parties during motions practice, the

miliary judge entered a finding of fact that, circa

August 2021, USCBP had authority to decline to

16 The decision not to prosecute was not fully documented in the

record, but a USCBP agent who interviewed QM told him: “What

we are interested in, [inaudible], we are interested in the people

that hired you, the people who contacted you, the people that told

you where to go, that kind of thing. That is what we are

interested in.”

55a

prosecute suspected smugglers of aliens, and if so, to

remove the aliens from the United States summarily.

This policy existed to ameliorate the then-significant

public health concerns arising from the possible

spread of COVID-19 in detention facilities. Consistent

with this policy, USCBP removed the five Mexican

nationals from the United States.17 Neither trial

counsel nor trial defense counsel interviewed them

before or after their removal.

USCBP did, however, notify the Air Force of

Appellant’s apprehension. The Air Force then

independently investigated this incident. Charges

were preferred against Appellant in November 2021,

and referred to a general court-martial in December

2021. On 19 and 24 January 2022, trial defense

counsel filed separate motions related to the

Government’s removal of the aliens. One motion

sought to compel production of the aliens as trial

witnesses and to exclude the aliens’ statements

during custodial interviews with USCBP as hearsay.

The other motion sought to dismiss the relevant

charges if the Government failed to produce these

witnesses, who the Prosecution could not compel to

testify.

The military judge held an Article 39(a), UCMJ, 10

U.S.C. § 839(a), session prior to trial. The military

judge then granted the first motion in part, excluding

the aliens’ statements to USCBP as testimonial

17 Prosecution Exhibit 5 indicates Ms. TMV was deported on 5

September 2021. During motions practice, the parties stipulated

that the other four Mexican nationals had also been deported

prior to trial.

56a

hearsay.18 The military judge denied the second

motion to dismiss, however, finding: (1) no due process

violation or bad faith for the Government’s removal of

the witnesses, and (2) no relief warranted under

R.C.M. 703 for “lost evidence” because Appellant

failed to demonstrate the unavailable witnesses could

provide favorable testimony of central importance to

an issue essential for a fair trial.

2. Law

a. Standard of Review

This court reviews a military judge’s rulings on

production of witnesses and related motions to

dismiss for abuse of discretion. United States v.

McElhaney, 54 M.J. 120, 126 (C.A.A.F. 2000). This is

a deferential standard requiring “more than a mere

difference of opinion” between the trial and appellate

court. United States v. Warda, 84 M.J. 83, 90 (C.A.A.F.

2023) (citation omitted). A military judge only abuses

his discretion if his “findings of fact are clearly

erroneous, the court's decision is influenced by an

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

decision on the issue at hand is outside the range of

choices reasonably arising from the applicable facts

and the law.” Id. (citations omitted).

b. Fifth and Sixth Amendments

A criminal defendant’s requests for production of

witnesses favorable to his defense implicates both his

Fifth Amendment19 Due Process and Sixth

18 The Mexican nationals were not produced as witnesses and

their statements to USCBP that they were traveling to the

United States without prior authorization were not admitted.

19 U.S. CONST. amend. V.

57a

Amendment20 Compulsory Process rights. The

seminal case on point is United States v. ValenzuelaBernal, where the United States Supreme Court held:

the responsibility of the Executive Branch

faithfully to execute the immigration policy

adopted by Congress justifies the prompt

deportation of illegal-alien witnesses upon the

Executive’s good-faith determination that they

possess no evidence favorable to the defendant

in a criminal prosecution. The mere fact that

the Government deports such witnesses is not

sufficient to establish a violation of the

Compulsory Process Clause of the Sixth

Amendment or Due Process Clause of the Fifth

Amendment. A violation . . . requires some

showing that the evidence lost would be both

material and favorable to the defense.

458 U.S. 858, 872–73 (1982).

The prevailing view among the federal circuits is

Valenzuela-Bernal requires an appellant to meet a

two-prong test to merit constitutional relief. See

United States v. Damra, 621 F.3d 474, 485–490 (6th

Cir. 2010); United States v. Medina-Villa, 567 F.3d

507, 517–518 (9th Cir. 2009); United States v.

Chaparro-Alcantara, 226 F.3d 616, 623–624 (7th Cir.

2000); United States v. Iribe-Perez, 129 F.3d 1167,

1173 (10th Cir. 1997). First, the appellant must show

the Government acted in bad faith. Second, the

appellant must show the witness would have provided

testimony material and favorable to his defense.

Bad faith exists if the Government either: (1) acted

with an intent “to gain an unfair tactical advantage”

20 U.S. CONST. amend. VI.

58a

in removing the aliens, or (2) departed from “normal”

agency practice in such removal. United States v.

Pena-Gutierrez, 222 F.3d 1080, 1085 (9th Cir. 2000)

(citation omitted).

When a prospective witness has been removed

from the United States, the defense’s burden for

demonstrating materiality of the witness’s testimony

is “relaxed.” Valenzuela-Bernal, 458 U.S. at 867. “The

term ‘favorable’ as used in both Supreme Court and

military precedent is synonymous with ‘vital.’” United

States v. Smith, 68 M.J. 445, 448 (C.A.A.F. 2010)

(citing United States v. Banker, 60 M.J. 216, 218

(C.A.A.F. 2004) (quoting Valenzuela-Bernal, 458 U.S.

at 867)). An appellant, however, does carry a factual

burden to establish both materiality and favorability,

to wit, he must make “at least make some plausible

showing of how [the deported witness’s] testimony

would have been both material and favorable to his

defense.” Id. In making this showing, “the defendant’s

unsupported word alone is not sufficient . . . where the

defendant maintains only that the potential witness

‘could explain’ or ‘might have testified’ in some

favorable fashion.” Damra, 621 F.3d at 490 (citing

Iribe-Perez, 129 F.3d at 1173).

c. R.C.M. 703

Generally, “[t]he prosecution and defense and the

court-martial shall have equal opportunity to obtain

witnesses and evidence, . . . including the benefit of

compulsory process.” R.C.M. 703(a). There are

separate and different rules for resolving pretrial

matters concerning unavailable witnesses, R.C.M.

703(b)(3), and unavailable physical evidence, R.C.M.

703(e)(2). No party is entitled to the production of an

unavailable witness. R.C.M. 703(b)(3). A military

59a

judge shall, however, grant a continuance or abate the

proceedings if: (1) “the testimony of a witness who is

unavailable is of such central importance to an issue

that it is essential to a fair trial,” (2) “there is no

adequate substitute for such testimony,” and (3) the

requesting party did not cause the witness’s

unavailability. Id. A military judge may also continue

or abate the proceedings under similar circumstances

involving unavailable physical evidence. R.C.M.

703(e)(2). An accused cannot demonstrate the

necessity of a requested witness when it is only a

“theoretical possibility” the witness’s testimony would

actually benefit the defense case. United States v.

Relves, 41 M.J. 388, 394 (C.A.A.F. 1995).

3. Analysis

a. Fifth and Sixth Amendments

At the outset, we note Appellant does not challenge

the military judge’s findings of fact pertinent to the

motion, but only his legal reasoning. Likewise, we see

no “clearly erroneous” findings of fact by the military

judge.

We find the federal precedent persuasive and elect

to follow the prevailing view that the Supreme Court’s

analysis in Venezuela-Bernal sets up a two-prong test

which Appellant must meet to establish a

constitutional violation. Appellant cannot meet the

first prong of this test, however, as the facts

demonstrate no “bad faith” or departure from regular

procedure in the summary removal of the five Mexican

nationals at issue in this case. Appellant does not

contest the military judge’s conclusion as a matter of

fact that the summary removal policy was in effect

and was standard agency practice at the time of

Appellant’s case.

60a

Because Appellant cannot meet this first prong of

the Venezuela-Bernal test, his request for

constitutional relief fails. In resolving this

constitutional issue, we find it unnecessary to analyze

whether these witnesses would have provided

material and favorable testimony at trial. We do,

however, address the absence of favorability below in

our analysis of Appellant’s claim under R.C.M. 703.

b. R.C.M. 703

The applicable reference point for evaluating

possible remedies for “unavailable” necessary

witnesses is R.C.M. 703(b)(3). We note the military

judge’s ruling did not mention R.C.M. 703(b)(3), but

only a related provision, R.C.M. 703(b)(1). Even so, his

analysis embraced some of the components of R.C.M.

703(b)(3), particularly the lack of demonstrated

favorability of the Mexican nationals if called as

defense witnesses. We find no legal error because the

military judge’s conclusions were ultimately correct

and we are empowered to affirm a military judge’s

rulings below when he reached the right result, albeit

for a different reason. See United States v. Bess, 80

M.J. 1, 11–12 (C.A.A.F. 2020) (citations omitted).

Here, the evidence was not “of central importance

to an issue essential for a fair trial” because there is

no indication any testimony would have been

favorable for the Defense. Appellant offers only

speculation as to the prospective testimony of the five

Mexican nationals.21 That simply is not enough. See

Without citation to any supporting facts, Appellant’s brief

asserts:

21

On the facts here, there are a number of things that the

immigrants could have discussed: who was in charge,

who was sending messages, how [Appellant] reacted

61a

Relves, 41 M.J. at 394. There was no indication any of

the five Mexican nationals could understand anything

purportedly uttered between Appellant and QM

during their brief ride prior to their detention by

USCBP. Nor was there any indication that lighting in

the car was sufficient during the brief ride for the

passengers to observe, much less draw impressions of

Appellant’s demeanor, as Appellant now speculates.

Instead, the only evidence presented to the military

judge was not favorable to Appellant’s case: the alien

passengers admitted to being Mexican nationals

without prior authorization to enter the United

States.

In the end, we agree with the military judge’s

conclusion that “the evidence tends to show that [the

requested witness] production . . . would be

detrimental to the Defense case because it would help

the Government prove the illegal alien status of the

[Appellant’s] passengers . . . .” (Emphasis added).

Accordingly, we find the military judge did not abuse

his discretion in denying the motion to dismiss. See

McElhaney, 54 M.J. at 128 (holding no abuse of

discretion for denial of defense witness production

request because “the agent’s testimony would have

been counter-productive for the defense”).

when they came into the car, whether [Appellant] was

assisting or passive, or anything else they were told that

would indicate [Appellant] had a role QM’s plan. . . .

[S]uch testimony could have proven critical.

(Emphasis added).

62a

D. Omission of Government’s Closing Argument

Slides from the Record of Trial

1. Additional Background

The record of trial includes a complete audio

recording and verbatim transcript of trial counsel’s

closing argument at findings. However, the

Government’s closing argument PowerPoint slides,

marked as Appellate Exhibit XL, were not included.22

These slides contained portions of video and audio

clips separately admitted as Prosecution Exhibit 18

(the video recorded interview of Appellant by SFOI)

and Defense Exhibit A (the video recorded interview

of QM by USCBP). Defense counsel lodged no

objection to the Government’s slides. The only

portions marked “inaudible” in the closing argument

transcript dealt with portions of Defense Exhibit A

and Prosecution Exhibit 18 that were likewise labeled

“inaudible” in the verbatim trial transcripts capturing

when those exhibits were played during the parties’

cases-in-chief.

2. Law

Proper completion of post-trial processing is a

question of law this court reviews de novo.” United

States v. Valentin-Andino, 83 M.J. 537, 540 (A.F. Ct.

Crim. App. 2023) (citation omitted). “Because they are

matters of law, we review interpretations of statutes

and Rules for Courts-Martial de novo.” Id. (citation

omitted).

22 An exhibit marked as “Appellate Exhibit XL” is included in the

record of trial, but it consists of a video recording that appears to

be a duplicate of Defense Exhibit A, the videotaped interview of

QM.

63a

An appellant has a right to a full and fair review of

his conviction under Article 66, UCMJ. United States

v. Walters, 58 M.J. 391, 397 (C.A.A.F. 2003). To this

end, Article 54, UCMJ, 10 U.S.C. § 854, requires, “[i]n

accordance with regulations prescribed by the

President, a complete record of proceedings and

testimony shall be prepared in any case of a sentence

of death, dismissal, discharge, confinement for more

than six months, or forfeiture of pay for more than six

months.”

Article 1, UCMJ, 10 U.S.C. § 801(14), defines the

term “record” as: “(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.” A record of trial should include “[e]xhibits,

or, if permitted by the military judge, copies,

photographs, or descriptions of any exhibits that were

received in evidence and any appellate exhibits.”

R.C.M. 1112(b)(5).

An incomplete record of trial only entitles an

appellant to relief if he was prejudiced. See United

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

(citation omitted). In this context, prejudice focuses on

the reviewing court’s ability to perform its statutory

duty to conduct a full and thorough review of the case.

United States v. Henry, 53 M.J. 108, 111 n.* (C.A.A.F.

2000). “A substantial omission renders a record of trial

incomplete and raises a presumption of prejudice that

the Government must rebut[.]” Id. at 111 (citations

omitted). By contrast, “[i]nsubstantial omissions . . .

do not raise a presumption of prejudice or affect that

record’s characterization as a complete one.” Id. So the

threshold question is whether the item is substantial,

64a

either qualitatively or quantitatively. United States v.

Davenport, 73 M.J. 373, 377 (C.A.A.F. 2014) (citing

United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982)

(additional citation omitted). Omissions from the

record are qualitatively substantial if the substance of

the omitted material “related directly to the

sufficiency of the Government's evidence on the

merits.” Id. (citation omitted). Omissions are

quantitatively substantial if “the totality of omissions

. . . becomes so unimportant and so uninfluential

when viewed in the light of the whole record, that it

approaches nothingness.” Id. (citing United States v.

Nelson, 3 C.M.A. 482, 487 (C.M.A. 1953)). While a

substantial omission raises a presumption of

prejudice, it can be rebutted by the Government.

United States v. Harrow, 62 M.J. 649, 654–55 (A.F. Ct.

Crim. App. 2006) (citation omitted).

3. Analysis

First, the entirety of trial counsel’s closing

argument (during which he utilized the PowerPoint

slides) was transcribed substantially verbatim.

Appellant raises no assignment of error as to the

substance of trial counsel’s closing argument,

meaning the absence of these slides has no

discernable impact on our ability to conduct a full and

thorough appellate review in Appellant’s case.

Further, trial defense counsel did not object

contemporaneously to any portions of trial counsel’s

argument, meaning even if he did challenge the

substantive argument on appeal, it would be

reviewable only for plain error.

Second, the “inaudible” portions of video and audio

clips from Prosecution Exhibit 18 and Defense Exhibit

A were separately admitted into evidence with the

65a

same

imperfections,

and

without

objection.

Ultimately, we are unpersuaded by Appellant’s

argument: “[C]ounsel must know what evidence the

trial counsel showed the members to assess whether

the argument asked the members to draw inferences

not flowing from the evidence[.]” In effect, appellate

defense counsel already do know what was

presented— excerpts from the recordings from

Prosecution Exhibit 18 and Defense Exhibit A that are

already included in the record of trial.

Third, the lack of an objection tends to render the

slides’ omission as “insubstantial” because it has no

measurable impact on our ability to perform a full and

fair appellate review for Appellant’s case, particularly

in light of the presence of the underlying video

recordings already admitted and reviewable as

separate exhibits within the record of trial. See Henry,

53 M.J. at 111.

Appellant has not established that he is entitled to

any relief. Under the circumstances, we conclude that

trial counsel’s closing argument PowerPoint slides

were an insubstantial omission from the record of

trial. Even assuming, arguendo, the missing

PowerPoint slides constitute a “substantial omission”

from the record of trial, the Government has rebutted

any presumption of prejudice.

E. Unlawful Immigrant Criminal History as

Sentencing Aggravation Evidence

Appellant argues the military judge abused his

discretion in admitting the criminal history of one of

the Mexican nationals, Mr. ONA,23 as aggravation

23 The court notes that the charge sheet reflects this Mexican

national’s name as Mr. ONA, but Prosecution Exhibit 28,

described infra, and Prosecution Exhibits 7–9, show this Mexican

66a

evidence under R.C.M. 1001(b)(4) during the

presentencing proceedings. For the reasons set forth

below, assuming without deciding that this was

improper aggravation evidence, we find no prejudice

because the Government has demonstrated this

evidence did not substantially influence the adjudged

sentence.

1. Additional Background

The military judge admitted Mr. ONA’s criminal

history at the presentencing proceedings over trial

defense counsel’s objection. This history was admitted

as Prosecution Exhibit 28, consisting of a two-page

Form I-213, Record of Deportable Alien, showing Mr.

ONA had three prior convictions in the United States

between 2003 and 2017 for drunk driving offenses

each resulting in a term of confinement of 30 days or

more. The military judge, in support of his ruling,

articulated his Mil. R. Evid. 403 balancing analysis

orally on the record:

The court does find this to be evidence in

aggravation of the crime as it directly relates to

or results from the crime specifically. It is

evidence that appears to show that one of the

individuals the [Appellant] was transporting

had a criminal history[;] that is directly related

to or resulting from his . . . crime of

transporting that illegal alien. The court has

conducted an Mil. R. Evid. 403 balancing test

and finds that probative value is not

substantially outweighed by any danger of

national’s name as Mr. ONA. It appears the charge sheet has a

scrivener’s error. For purposes of this opinion, the court will refer

to him as Mr. ONA. Appellate raises no issue regarding this

error.

67a

unfair prejudice in this case. The court will put

this document and the testimony in the proper

context, recognizing that severity or lack

thereof of criminal behavior and how long ago

it occurred [o]n this date on this particular

form. However, this court will give this

evidence and testimony the weight it deserves.

It is admissible as aggravation evidence.

At the close of sentencing arguments, the military

judge, sua sponte, provided additional affirmation of

his knowledge of the limited use of aggravation

evidence in informing an appropriate sentence by

explaining, “This court understands its duty to

sentence the accused only for the crimes of which he

has been convicted to the extent . . . trial counsel’s

argument discussed his prior history of misconduct or

any uncharged offenses.”

2. Law

A military judge’s decision to admit evidence at

sentencing is reviewed for abuse of discretion. United

States v. Carter, 74 M.J. 204, 206 (C.A.A.F. 2015)

(citation omitted). Military judges abuse their

discretion when their “factual findings are clearly

erroneous, view of the law is erroneous, or decision is

outside of the range of reasonable choices.” United

States v. Hutchins, 78 M.J. 437, 444 (C.A.A.F. 2019)

(citations omitted).

The Government may present evidence during

sentencing of “any aggravating circumstances directly

relating to or resulting from the offenses of which the

accused has been found guilty.” R.C.M. 1001(b)(4).

Evidence qualifying under R.C.M. 1001(b)(4) must

also pass muster under Mil. R. Evid. 403. United

States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).

68a

A military judge may exclude evidence if its probative

value is substantially outweighed by such

considerations as its tendency to result in unfair

prejudice, confuse the issues, or mislead the trier of

fact. Mil. R. Evid. 403. A military judge has “wide

discretion” in applying Mil. R. Evid. 403 and we

exercise “great restraint” in reviewing such

applications when the military judge has articulated

his reasoning on the record. United States v.

Humpherys, 57 M.J. 83, 91 (C.A.A.F. 2002) (citations

omitted).

For preserved objections, if an alleged error occurs

in the admission of sentencing matters, 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). To make this determination, reviewing

appellate courts weigh 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. Edwards, 82 M.J. 239, 247

(C.A.A.F. 2022) (citations omitted).

3. Analysis

In this judge-alone sentencing case, we elect to

resolve this assignment of error based upon the

absence of prejudice. We consider each of the four

factors articulated in Edwards in turn.

First, the Government’s sentencing case was

moderately strong. The Government’s sentencing case

relied on the severity of the most significant convicted

misconduct, i.e., transporting aliens and conspiring to

do so, and Appellant’s prior history of misconduct

(including nonjudicial punishment for prior

69a

marijuana use, followed by a vacation action for

additional misconduct), which evidenced Appellant’s

diminished rehabilitative potential to date.

Second, and by contrast, the strength of the

defense sentencing case was modest. It consisted of

heartfelt testimony from Appellant’s mother and

father about their love for and pride in their son, along

with five character statements from family and

friends attesting to Appellant’s love and care for his

family and friends. All of this, while commendable,

does not significantly mitigate the weight of

misconduct Appellant committed.

Third, considering the materiality and quality of

the evidence in question, we conclude the evidence

had limited “materiality” in terms of potential impact

on the adjudged sentence. The military judge’s

qualifying caveat about putting “this document and

testimony in the proper context” based on remoteness

in time and relative lack of severity would accord this

evidence scant weight in the final sentencing

determination.24 Moreover, the parties paid this

evidence little attention in their sentencing

arguments,25 further reducing the likelihood the

24 We agree with Appellant’s characterization that Prosecution

Exhibit 28 provided only “skeletal details” of Mr. ONA’s criminal

history. There is no mention of the underlying facts for each

incident or whether injuries to persons or property occurred. This

absence of additional detail reduced the likelihood of prejudice by

significantly minimizing the materiality of this evidence.

Appellant’s brief concedes as much in saying: “[S]tanding alone,

[this evidence] would not be enough to move the needle on

prejudice.”

25 Trial counsel dedicated only 7 of the 95 transcribed lines of his

sentencing argument to discussion of the aggravation evidence.

70a

military judge placed undue focus or reliance on the

evidence in deliberating on an appropriate sentence.

Moreover, the sentence for the transportation and

conspiracy charges to which the disputed aggravation

evidence was relevant demonstrates the absence of

any “substantial influence” on the adjudged sentence.

Here, the military judge imposed 24 months of

confinement running concurrently, although trial

counsel had requested 36 months and the parties

agreed 25 years was the maximum punishment for

each offense. In sum, the Government has

demonstrated any error in admitting Mr. ONA’s

criminal history did not “substantially influence” the

adjudged sentence.

F. Maximum Punishment for Transporting

Aliens and Conspiracy to Transport Aliens

1. Additional Background

At trial, the military judge, trial counsel, and trial

defense counsel relied on the plain language of 8

U.S.C. § 1324(a)(1)(B)(ii) in agreeing Appellant’s

aggregate

maximum

punishment

for

each

specification was 25 years—5 for each alien listed

therein.26 For the first time on appeal, Appellant

claims the maximum punishment for each

specification should be five years.

2. Law

Trial defense counsel only obliquely commented on it in 3 of the

99 transcribed lines of his/her sentencing argument.

The issue was explicitly discussed during presentencing

proceedings and trial defense counsel’s precise words in response

to trial counsel’s articulation of the maximum punishment

calculations for these offenses was: “We concur, Your Honor.”

26

71a

8 U.S.C. § 1324(a)(1)(B)(ii) provides that an

offender is subject to as much as five years in prison

“for each alien in respect to whom such a violation

occurs.”

a. Standard of Review

“The maximum punishment authorized for an

offense is a question of law, which [this court reviews]

de novo.” United States v. Beaty, 70 M.J. 39, 41

(C.A.A.F. 2011) (citations omitted). We review a

military judge’s sentencing determination for abuse of

discretion. Id. (citation omitted). “[W]here a military

judge’s decision was influenced by an erroneous view

of the law, that decision constitutes an abuse of

discretion.” Id. (citation omitted).

b. Waiver

Failure to lodge an objection may result in waiver

or forfeiture of the issue. See United States v. Ahern,

76 M.J. 194, 197 (C.A.A.F. 2017). This “is a question

of law [courts] review de novo.” Id. (citation omitted).

“Whereas forfeiture is the failure to make the timely

assertion of a right, waiver is the intentional

relinquishment or abandonment of a known right.”

Davis, 79 M.J. at 331 (quoting Gladue, 67 M.J. at 313;

United States v. Campos, 67 M.J. 330, 332 (C.A.A.F.

2009) (citations omitted)).

Appellate courts generally review forfeited issues

for plain error, but “a valid waiver leaves no error to

correct on appeal.” Ahern, 76 M.J. at 197 (citation

omitted). In other words, if the appellant waived the

objection, the appellant is precluded from raising the

issue before either the CCA or the United States Court

of Appeals for the Armed Forces (CAAF). United

States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (citing

Gladue, 77 M.J. at 313–14). However, under the prior

72a

version of Article 66(d), UCMJ,27 CCAs had an

affirmative obligation to examine the entire record to

determine whether “to leave an [appellant’s] waiver

intact or to correct the error,” with our superior court

premising that waiver-piercing authority in the

previous statute on the statutory phrase “should be

approved.” See id.

3. Analysis

The parties agree the military judge’s maximum

punishment calculation should be evaluated for plain

error. We disagree, however, because trial defense

counsel’s affirmative concurrence with the calculation

at trial waived this issue. This was not an oversight,

but “an intentional relinquishment of a known right.”

See Davis, 79 M.J. at 331; Campos, 67 M.J. at 332

(citations omitted).

Even assuming arguendo that our waiver-piercing

authority as to waived errors impacting sentencing

survived after the FY21 NDAA amendments to Article

66(d), UCMJ (cf. United States v. Coley, ARMY

20220231, 2024 CCA LEXIS 127, *9 (A. Ct. Crim. App.

13 Mar. 2024) (unpub. op.) (holding 2021 amendments

to Article 66(d), UCMJ, abrogated the CCA’s ability to

pierce waiver as to errors associated with findings)

(citations omitted)),28 we would decline to pierce the

27 As discussed supra at Part II.B.2.b, the amended version of

Article 66(d), UCMJ, applicable to Appellant’s case applies in

cases where all convicted misconduct occurred on or after 1

January 2021.

In Chin, the CAAF predicated the CCA’s waiver-piercing

authority on the phrase “should be approved” in the prior version

of Article 66(c), UCMJ. 75 M.J. at 223. The CAAF explained that

during its Article 66, UCMJ, review, “the CCA is commanded by

28

73a

waiver in this case where we tend to think the

maximum punishment was ultimately calculated

correctly at trial. See United States v. Blanks, No.

ACM 38891, 2017 CCA LEXIS 186, at *22 n.11 (A.F.

Ct. Crim. App. 17 Mar. 2017) (unpub. op.) (holding “we

will only ignore waiver in the most deserving cases”).

At the very least, piercing waiver would be

unnecessary because Appellant suffered no prejudice

requiring a remand for resentencing even if the

maximum punishment was incorrectly calculated for

these offenses. Here the military judge ultimately

sentenced Appellant to 24 months’ confinement for

each offense, running concurrently—less than one

half of the possible confinement even if Appellant’s

view of the maximum punishment under 8 U.S.C.

§ 1324 is correct. Accordingly, even if we were inclined

to pierce the waiver in this case, we could have

confidently reassessed the sentence and concluded the

military judge would have sentenced Appellant to the

same term of confinement even under Appellant’s

statute to review the entire record and approve only that which

‘should be approved.’” Id.

As noted supra at Part II.B.2.b, while the 2021 amendments to

Article 66, UCMJ, removed this language as to findings (see 116

Pub. L. 283, § 542(b)(1)), they left it intact as to sentencing (at

least until the effective date of the new Article 66(e), UCMJ,

which applies to convicted crimes committed on or after 27

December 2023. See 117 Pub. L. 81, § 539E(f) (also FY22 NDAA).

Accordingly, for purposes of this case, this court appears to still

have waiver-piercing authority as to waived errors impacting the

sentence. This is so because, under the FY21 NDAA amended

version of Article 66(d)(1), UCMJ, that applies to Appellant’s

case, we “may affirm only the sentence, or such part or amount

of the sentence, as the Court finds correct in law and fact and

determines, on the basis of the entire record, should be

approved.” See 116 Pub. L. 283, §542(b)(1) (emphasis added).

74a

suggested maximum punishment calculation. After

all, the military judge was sentencing Appellant for

the same set of operative facts—it was only the

available maximum punishments which had changed.

Cf. United States v. Winckelmann, 73 M.J. 11, 16

(C.A.A.F. 2013) (noting consideration of “[w]hether

the nature of the remaining offenses capture the

gravamen of criminal conduct included within the

original offenses, and . . . whether significant or

aggravating circumstances addressed at the courtmartial remain admissible and relevant” as a positive

factor favoring sentence reassessment by a court of

criminal appeals).

G. Maximum Punishment for Absence Without

Leave (AWOL) and Breaking Restriction

Convictions

Appellant alleges the military judge imposed more

than the maximum permissible confinement for his

absence without leave (AWOL) conviction—Charge I

and its specification—and his breaking restriction

conviction—Charge II and its specification. For the

reasons set forth below, we agree and grant relief in

our decretal paragraph.

1. Additional Background

During the providency inquiry for Appellant’s

guilty pleas to each of the specifications of Charges I,

Charge II, and Charge III (wrongful use of

marijuana), the military judge correctly articulated

the maximum punishments for each of these offenses,

including one month confinement for each of the

specifications of Charges I and II, and two years for

the specification of Charge III. The military judge

imposed separate terms of confinement for each of

these convicted specifications. While he correctly

75a

announced the maximum one-month confinement

terms for each of the specifications of Charges I and II

during the providency inquiry, the military judge

ultimately erroneously sentenced Appellant to two

months’ confinement for the specification of Charge I

and three months’ confinement for the specification of

Charge II. Meanwhile, the military judge announced

a sentence of three months’ confinement for the

specification of Charge III and designated those three

terms of confinement run concurrently, and

consecutive to terms of confinement for the remaining

convicted offenses. Trial defense counsel did not object

to the announced sentence either at trial or any time

during post-trial processing, culminating with the

entry of judgment.29 Now on appeal, Appellant

requests we affirm no more than one month’s

confinement, respectively, for each of the

specifications of Charges I and II. The Government

argues that the erroneously high sentences did not

“materially prejudice” Appellant because these

sentences ran concurrently with the specification of

Charge III, and thus had no impact on the total

effective length of confinement adjudged.

2. Law

We review the lawfulness of a sentence de novo.

See United States McElhaney, 83 M.J. 164, 166

(C.A.A.F. 2023).

Congress authorized maximum punishments “as a

court-martial may direct” for both Articles 86 and 87b,

29 Appellant does not claim on appeal that the errors at trial in

failing to object to the terms of confinement for Charges I and II

involved ineffective assistance of counsel. Our sentence

modification sufficiently addresses the error and we need not sua

sponte address these other possible issues.

76a

UCMJ. Exercising power under Article 56, UCMJ, 10

U.S.C. § 856, to set maximum punishments for

offenses, the President set a term of one month as the

maximum confinement for AWOL lasting less than

three days (Article 86, UCMJ) and for breaking

restriction (Article 87b, UCMJ). MCM, pt. IV,

¶¶ 10.d.(2)(A); 13.d.(3).

When acting as the sentencing authority, a

military judge must specify a term of confinement for

each offense. Article 56(c)(2), UCMJ, 10 U.S.C.

§ 856(c)(2). “The punishment which a court-martial

may direct for an offense may not exceed such limits

as the President may prescribe for that offense.”

Article 56(a), UCMJ, 10 U.S.C. § 856(a).

In reviewing the legality of sentences imposed at

courts-martial, we may affirm only “the sentence or

such part or amount of the sentence as [we] find[ ]

correct in law and fact,” and we may act only “with

respect to the findings and sentence as entered into

the record.” Article 66(d)(1), UCMJ, 10 U.S.C.

§ 866(d)(1); see also United States v. Bennett, No. ACM

S32722, 2023 CCA LEXIS 293, at *14 (A.F. Ct. Crim.

App. 14 Jul. 2023) (“[W]e cannot approve a sentence

that is not correct in law.”).

3. Analysis

The military judge committed clear and obvious

error in announcing his sentence as to each of the

specifications of Charges I and II. The record

demonstrates the military judge was aware of the

correct maximum punishments, but announced

segmented sentences above those maximums for each

of the specifications of Charges I and II.

While the military judge’s error was clear, there

was no impact to the total effective length of

77a

Appellant’s sentence to confinement because the

military judge designated the confinement for each of

the specifications of Charges I–III to run concurrently.

Because the military judge also imposed three

months’ confinement for the specification of Charge

III (wrongful use of marijuana), the erroneous

sentences for each of the specifications of Charges I

and II were subsumed with the concurrent sentencing

for the specification of Charge III.

Nonetheless, we must correct the error because we

are obligated to approve only those “findings and

sentence that are correct in law and fact.” See United

States v. Flores, __ M.J. __, No. 23-0198/AF, 2024

CAAF LEXIS 162, at *1 (C.A.A.F. 14 Mar. 2024)

(holding that CCAs are required to review each

segment of confinement adjudged in a judge-alone

sentencing case for appropriateness). Accordingly, we

take action in our decretal paragraph to reduce the

confinement periods for each of the specifications of

Charges I and II, in alignment with the actual

permissible maximum punishments available. We

analogize

this

to

essentially

a

“sentence

reassessment” where we are confident that but for the

error the military judge would have imposed a

particular

quantum

of

punishment.

See

Winckelmann, 73 M.J. at 12. Here, we are confident

the military judge would have adjudged the entirety

of the maximum confinement available for each of the

specifications of Charges I and II. Accordingly, we

“reassess” the terms of confinement for each of the

specifications of Charges I and II to one month each,

which we reflect in our decretal paragraph.

78a

H. Sentence Appropriateness

Appellant challenges the appropriateness of the

sentences for his transporting aliens and conspiracy

convictions. He alleges the 24-month concurrent

sentence he received for these offenses is excessive

when compared to the federal sentencing guidelines

applicable in civilian courts. He also offers sentences

imposed in certain military and non-military cases

involving similar conduct for comparison. Hewing to

our independent obligation under Article 66(d),

UCMJ, to conduct sentence appropriateness review in

toto, we consider not only the appropriateness of

Appellant’s sentences for the specific offenses he

challenges, but also his entire sentence. For the

reasons set forth below, we find Appellant’s sentence

is not inappropriately severe.

1. Law

a. Sentence Appropriateness Generally

We review issues of sentence appropriateness de

novo. See McAlhaney, 83 M.J. at 166 (citation

omitted). Our authority “reflects the unique history

and attributes of the military justice system [and]

includes . . . considerations of uniformity and

evenhandedness of sentencing decisions.” United

States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001)

(citations omitted). We may affirm only as much of the

sentence as we find correct in law and fact. Article

66(d), UCMJ. In review of judge-alone sentencing, we

“must consider the appropriateness of each segment

of a segmented sentence and the appropriateness of

the sentence as a whole.” See Flores, 2024 CAAF

LEXIS 162, at *1.

“We assess sentence appropriateness by

considering the particular appellant, the nature and

79a

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

service, and all matters contained in the record of

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

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

in original) (citation omitted). Although appellate

courts are empowered to “do justice[ ] with reference

to some legal standard,” we are not authorized to

grant mercy. United States v. Guinn, 81 M.J. 195, 203

(C.A.A.F. 2021) (quoting United States v. Nerad, 69

M.J. 138, 146 (C.A.A.F. 2010)).

b. Sentence Comparison

CCAs are “not required . . . to engage in sentence

comparison with specific [other] cases ‘except in those

rare instances in which sentence appropriateness can

be fairly determined only by reference to disparate

sentences adjudged in closely related cases.’” United

States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)

(quoting United States v. Ballard, 20 M.J. 282, 288

(C.M.A. 1985)) (additional citation omitted). Cases are

“closely related” when, for example, they involve “coactors involved in a common crime, servicemembers

involved in a common or parallel scheme, or some

other direct nexus between the servicemembers whose

sentences are sought to be compared.” Id. “[A]n

appellant bears the burden of demonstrating that any

cited cases are ‘closely related’ . . . .” Id.

The test for whether sentences are “highly

disparate” is “not limited to a narrow comparison of

the relative numerical values of the sentences at

issue, but also may include consideration of the

disparity in relation to the potential maximum

punishment.” Id. at 289. “If the appellant meets that

burden, or if the court raises the issue on its own

80a

motion, then the Government must show that there is

a rational basis for the disparity.” Id. at 288.

A CCA is not required to compare an appellant’s

case to non-closely related cases. United States v.

Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001). “The

appropriateness of a sentence generally should be

determined without reference or comparison to

sentences in other cases.” United States v. LeBlanc, 74

M.J. 650, 659 (A.F. Ct. Crim. App. 2015) (en banc)

(citing Ballard, 20 M.J. at 283).

In United States v. Lacy, the CAAF described a

CCA’s “sentence review function” as “highly

discretionary.” 50 M.J. at 288. CAAF observed the

interplay between individualized sentencing and

uniformity:

Congress has furthered the goal of uniformity

in sentencing in a system that values

individualized punishment by relying on the

judges of the Courts of Criminal Appeals to

“utilize the experience distilled from years of

practice in military law to determine whether,

in light of the facts surrounding [the] accused’s

delict, his sentence was appropriate. In short, it

was hoped to attain relative uniformity rather

than an arithmetically averaged sentence.”

Id. (alteration in original) (quoting United States v.

Olinger, 12 M.J. 458, 461 (C.M.A. 1982)).

“Sentence comparison does not require sentence

equation.” United States v. Durant, 55 M.J. 258, 260

(C.A.A.F. 2001). “[T]he military system must be

prepared to accept some disparity in the sentencing of

codefendants, provided each military accused is

sentenced as an individual.” Id. at 261–62 (citations

omitted). “[C]harging decisions by commanders in

81a

consultation with their trial counsel, as well as

referral decisions by convening authorities after

advice from their [s]taff [j]udge [a]dvocates, can

certainly lead to differences in sentencing.” Id. at 261.

2. Analysis

We are not persuaded any of the cases Appellant

cites in his briefs are “closely related.” Appellant was

not a co-actor with any of the defendants cited in those

cases; there was no “direct nexus” between Appellant’s

crimes and theirs; and the mere fact the same type of

misconduct was committed (i.e., illegal transportation

of aliens) does not render the cases closely related.

Furthermore, our caselaw contemplates case

comparisons to other servicemembers, not civilians.

See Ballard, 20 M.J. at 284–85. Article 66, UCMJ,

sentence appropriateness review is focused upon

uniform and evenhandedness of sentencing within the

unique disciplinary environment of the military, not

civilian society at large. See, e.g., id. at 285 n.4 (“Even

if appellant could demonstrate the drug sentences are

more severe in the military, as a whole, than in

civilian jurisdictions, we are satisfied that such

differences can be readily justified by an urgent

necessity in the military that is simply not present in

the civilian community.” (citations omitted).).

Even if we were to depart from precedent and

consider civilian cases as “closely related,” we are

unpersuaded the federal sentencing guidelines

applicable in civilian courts are helpful measures of

evenhandedness of sentences in courts-martial. See

United States v. Kroetz, No. ACM 40301, 2023 CCA

LEXIS 450, at *21 (A.F. Ct. Crim. App. 27 Oct. 2023)

(unpub. op.) (“We presume that the military judge

would not improperly apply federal sentencing

82a

guidelines when determining [an a]ppellant’s

sentence in a military court-martial.”); see also United

States v. Garner, 39 M.J. 721, 727 (N.M.C.M.R. 1993)

(holding “the Federal Sentencing Guidelines do not

apply to trial by courts-martial”).

Similarly, we are unpersuaded Appellant’s

sentence of 24 months’ confinement for transporting

and conspiring to transport five Mexican nationals is

“highly disparate” when compared to the military

cases he offers. First, all of those involved defendants

who pleaded guilty, a substantial factor in mitigation

that Appellant’s case lacks.30 Secondly, Appellant’s

case contains additional aggravating factors,

including the presence of a firearm and obstruction of

justice.

In the end, having considered all the evidence in

the record, and the interest in uniformity and

evenhandedness of sentencing decisions generally, we

are convinced Appellant’s specific confinement

sentences for the transporting and conspiring to

transport aliens offenses, and his overall sentence (as

30 To be clear, to say that Appellant lacks this mitigating factor

is different from asserting that this court deems greater

punishment appropriate for an accused who merely exercises his

right to plead not guilty—we do not. See United States v.

Johnson, 1 M.J. 213, 215 (C.M.A. 1975) (holding a not-guilty plea,

standing alone, does not conversely carry with it a negative

implication capable of aggravating a sentence). Rather, we are

acknowledging the fact that, unlike the comparison cases,

Appellant is unable to rely upon a guilty plea as a mitigating

factor potentially representing the “first step towards

rehabilitation” which our caselaw recognizes. See United States

v. Nelson, 51 M.J. 399, 400 (C.A.A.F. 1999) (citation omitted);

Johnson, 1 M.J. at 215.

83a

corrected in

appropriate.

our

decretal

paragraph)

were

I. Post-Trial Delay: From Sentencing

Docketing and Docketing to Decision

to

Appellant requests relief for delay in docketing his

case with this court following the entry of judgment

for his court-martial because 200 days elapsed from

sentencing to docketing, vice the 150 days allotted

under our precedent in United States v. Livak, 80 M.J.

631, 633 (A.F. Ct. Crim. App. 2020). We ourselves

identified an additional issue of post-trial delay from

the docketing of the case with this court to the

issuance of our decision because more than 18 months

have elapsed triggering review for “facially

unreasonable delay” under our superior court’s

precedent in United States v. Moreno, 63 M.J. 129, 135

(C.A.A.F. 2006)). After evaluating the facts and

circumstances and applying the applicable legal

standards surrounding these two periods of delay, we

conclude no relief is warranted.

1. Additional Background

Appellant was sentenced on 18 February 2022 and

submitted his clemency matters on 7 March 2022. The

convening authority issued his decision on action

memorandum on 21 March 2022. The military judge

signed the entry of judgment on 20 April 2022.

The court reporter began preparation of the

verbatim transcript on 14 March 2022. Transcription

and assembly of the record continued until final

certification on 28 July 2022. During this time, the

court reporter transcribed portions of the audio

recordings for trial days 1, 2, 4, and 5, and transmitted

them to counsel on a rolling basis between 2 May 2022

and 21 June 2022 for review and submission of any

84a

edits. The court reporter also transcribed an unrelated

board of inquiry and three other general courtsmartial between 22 March 2022 and 16 June 2022.

In the meantime, the servicing legal office

contracted with a private company for additional trial

transcription for the remaining portions of the trial

audio for trial day 3. This company completed its

transcription on 10 July 2022. Trial counsel provided

their final transcript edits on 20 July 2022, and trial

defense counsel provided their final edits on 28 July

2022. The court reporter certified the entire trial

transcript on 28 July 2022. The record of trial (ROT)

consists of 11 volumes, including 639 pages of

transcripts, 28 prosecution exhibits, 10 defense

exhibits, and 48 appellate exhibits. The servicing legal

office mailed copies of the certified ROT to Appellant,

trial defense counsel, and the general court-martial

convening authority’s legal office on 15 August 2022.

This court received and docketed this case on

6 September 2022, 200 days after Appellant’s courtmartial was adjourned.

Thereafter, appellate defense counsel requested

and was granted (over the express objection of the

Government) 11 enlargements of time (EOT) to file

Appellant’s assignments of error brief. Appellant’s

first appellate counsel withdrew (with Appellant’s

knowledge and consent) during the course of this

appeal on 28 September 2023. Thereafter Appellant’s

new appellate counsel filed Appellant’s assignments

of error on 31 October 2023, 421 days after the case

was docketed with this court. It was at this time that

Appellant first invoked this right to speedy post-trial

processing, some 13 months after docketing of his case

with this court. The Government filed its answer brief

on 18 December 2023, after this court granted it one

85a

30-day EOT. The Defense filed Appellant’s reply brief

on 5 January 2024.

2. Law

“[C]onvicted servicemembers have a due process

right to timely review and appeal of [their] courtsmartial convictions.” Moreno, 63 M.J. at 135 (citations

omitted). We review de novo whether an appellant has

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

constitutional error is harmless beyond a reasonable

doubt. United States v. Arriaga, 70 M.J. 51, 57

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

Moreno identified three types of prejudice arising

from post-trial processing delay: (1) oppressive

incarceration; (2) anxiety and concern; and (3)

impairment of a convicted person’s grounds for appeal

and ability to present a defense at a rehearing.

Moreno, 63 M.J. at 138–39 (citations omitted). In

Livak, this court established an aggregated sentenceto-docketing

150-day

threshold

for

facially

unreasonable delay in cases, like Appellant’s, that

were referred to trial on or after 1 January 2019.

Livak, 80 M.J. at 633. A presumption of unreasonable

delay also arises when appellate review is not

completed and a decision is not rendered within 18

months of the case being docketed. Moreno, 63 M.J. at

142.

If there is a presumptive or an otherwise facially

unreasonable delay, we examine the matter under the

four non-exclusive factors set forth in Barker v. Wingo,

407 U.S. 514, 530 (1972): “(1) the length of the delay;

(2) the reasons for the delay; (3) the appellant’s

assertion of the right to timely review and appeal; and

(4) prejudice.” Moreno, 63 M.J. at 135 (citing Barker,

86a

407 U.S. at 530). “We analyze each factor and make a

determination as to whether that factor favors the

Government or [Appellant].” Id. at 136 (citation

omitted). Then, we balance our analysis of the factors

to determine whether a due process violation

occurred. Id. (citing Barker, 407 U.S. at 533).

“No single factor is required for finding a due

process violation and the absence of a given factor will

not prevent such a finding.” Id. (citing Barker, 407

U.S. at 533). However, where an appellant has not

shown prejudice from the delay, there is no due

process violation unless the delay is so egregious as to

“adversely affect the public’s perception of the fairness

and integrity of the military justice system.” United

States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).

Even in the absence of a due process violation

resulting from excessive post-trial delay, “a Court of

Criminal Appeals has authority under Article 66[,

UCMJ,] to grant relief for excessive post-trial delay

without a showing of ‘actual prejudice’ within the

meaning of Article 59(a)[, UCMJ], if it deems relief

appropriate under the circumstances.” United States

v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (citation

omitted). The essential inquiry under Tardif is

whether, given the post-trial delay, the sentence

“remains appropriate[ ] in light of all circumstances.”

Toohey, 63 M.J. at 362 (citing United States v.

Bodkins, 60 M.J. 322, 324 (C.A.A.F. 2004) (per

curiam)).

We provided a further analytical framework for

that analysis in United States v. Gay, where we set

forth six factors to consider before granting “sentence

appropriateness” relief under Tardif and Toohey, even

in the absence of a due process violation:

87a

1. How long did the delay exceed the standards

set forth in [Moreno]?

2. What reasons, if any, has the [G]overnment

set forth for the delay? Is there any evidence of

bad faith or gross indifference to the overall

post-trial processing of this case?

3. Keeping in mind that our goal under Tardif

is not to analyze for prejudice, is there

nonetheless some evidence of harm (either to

the appellant or institutionally) caused by the

delay?

4. Has the delay lessened the disciplinary effect

of any particular aspect of the sentence, and is

relief consistent with the dual goals of justice

and good order and discipline?

5. Is there any evidence of institutional neglect

concerning timely post-trial processing, either

across the service or at a particular

installation?

6. Given the passage of time, can this court

provide meaningful relief in this particular

situation?

74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75

M.J. 264 (C.A.A.F. 2016). In our consideration of the

above factors, “no single factor [is] dispositive, and a

given

case

may

reveal

other

appropriate

considerations for this court in deciding whether posttrial delay has rendered an appellant’s sentence

inappropriate.” Id. (footnote omitted).

3. Analysis

In this case, two periods of delay were facially

unreasonable under Livak and Moreno: the delay

88a

between sentencing and docketing with this court and

between docketing and the issuance of this court’s

opinion. Accordingly, we consider each period of delay

in light of the Barker factors.

a. Post-trial Delay from Sentencing to

Docketing

i) Length of delay

The 200 days that elapsed between sentencing and

docketing exceeded Livak’s 150-day threshold for

facially unreasonable post-trial delay by one-third. We

find this factor favors Appellant.

ii) Reasons for delay

The court reporter was actively working four other

cases while transcribing Appellant’s case. The

servicing legal office also took affirmative steps to

expedite the completion of the trial transcript,

securing additional trial transcription services from

an outside company. The 150 days it ultimately took

to transcribe the record was perhaps slower than

might be anticipated for a 639-page transcript, but

there is no evidence of any “deliberate attempt to

delay the [appeal] in order to hamper the defense.” See

Barker, 407 U.S. at 531. As such, we find this delay

does not represent intentionally dilatory action by the

Government. Given that crowded dockets and busy

legal offices are simply a fact of life in the modern

military justice practice, we find this factor only

slightly favors Appellant.

iii) Request

processing

for

speedy

post-trial

Appellant did not invoke his right to speedy posttrial processing during the 200 days between

89a

sentencing and the docketing of his case with this

court. We find this weighs against Appellant.31

iv) Prejudice

We will conduct a consolidated prejudice analysis

for both periods of post-trial delay. See subsection

II.I.3.b.iv, infra.

b. Post-trial Delay from Docketing to

Decision

i) Length of delay

Just under 22 months elapsed from the docketing

of Appellant’s case with this court until the issuance

of our decision. This exceeded the Moreno requirement

by approximately four months. This factor slightly

favors Appellant; the vast majority of the delay here

was specifically requested by Appellant. See United

States v. Washington, No. ACM 39761, 2021 CCA

LEXIS 379, *109 (A.F. Ct. Crim. App. 30 Jul. 2021)

(unpub. op.) (holding that 23 months from case

docketing to issuance of the court’s opinion was “not

excessively long” in a five assignment of error case

resulting in three separate opinions from the panel).

ii) Reasons for delay

While the length of the delay may be facially

unreasonable, the primary reason was this court’s

latitude in granting Appellant’s requested EOTs.

While this court does not begrudge appellate defense

counsel for requesting EOTs when necessary to

ensure zealous representation of Appellant and

31 See Moreno, 65 M.J. at 138 (reasoning that only if Appellant

actually “asserted his speedy trial right, [is he] ‘entitled to strong

evidentiary weight’” in his favor (quoting Barker, 407 U.S. at

528)).

90a

fulsome briefing of the issues, the fact that 421 days

of delay are attributable to the Defense—compared to

only 48 days for the Government to file its brief and

then about 195 days for this court to prepare and issue

its opinion—demonstrates reasonableness on the part

of the Government and this court in the processing of

Appellant’s case once it arrived here. See Moreno, 63

M.J. at 138 (holding a period of six months for a CCA

to issue its decision after the appellant’s case was

joined was “not an unreasonable time for review by

the [CCA]”).

iii) Request

processing

for

speedy

post-trial

Appellant never requested speedy appellate review

of his case prior to the filing of his assignment of

errors some 421 days after docketing with this court.

Given the apparent absence of urgency in Appellant’s

eleventh hour speedy post-trial processing rights

invocation, this factor weighs neither for nor against

Appellant. See subsection II.I.3.a.iii, supra.

iv) Prejudice

We do not find Appellant suffered prejudice to any

of the three interests the CAAF identified in Moreno.

In this case, Appellant has not received any relief that

would have reduced the amount of time he spent in

confinement, so there is no oppressive incarceration.

See Moreno, 63 M.J. at 139. Similarly, where

Appellant’s substantive appeal does not result in a

rehearing, his ability to present a defense at a

rehearing is not impaired. See id. at 140. Moreover,

we cannot perceive, and Appellant does not articulate,

how the substantive grounds for his appeal have been

impaired.

91a

c. Conclusion to Post-trial Delay Claims

Having weighed the applicable factors, we find

that neither the 200-day delay between sentencing

and docketing with this court nor the approximately

22 months between docketing and this court’s decision

were a violation of Appellant’s due process rights. In

the absence of prejudice cognizable under Moreno, we

find the delay was not 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.

Furthermore, 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 742, we conclude no

such relief is warranted.

CONCLUSION

The findings are correct in law and fact, and no

error materially prejudicial to the substantial rights

of the Appellant occurred. We reassess the segmented

sentence for the Specification of Charge I from two

months to one month, and the segmented sentence for

the Specification of Charge II from two months to one

month, and affirm the sentence as entered which calls

for a dishonorable discharge, confinement for 27

months, forfeiture of all pay and allowances, and

reduction in rank to the grade of E-1. Articles 59(a)

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

92a

Accordingly, the findings

reassessed, are AFFIRMED.

and

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

sentence,

as

93a

Department of the Army

Pamphlet 27–9

Legal Services

Military Judges’

Benchbook

Headquarters Department

of the Army Washington,

DC 29 February 2020

94a

2–2–4. MAXIMUM / MINIMUM PUNISHMENT

INQUIRY

MJ: Trial Counsel, what do you calculate to be

the maximum punishment authorized (and the

minimum punishment required) by law in this

case based solely on the accused’s guilty plea?

TC: (Responds.)

MJ: Defense Counsel, do you agree?

DC: (Responds.)

MJ: __________, the maximum punishment

authorized by law in this case based solely on

your guilty plea is __________. (The mandatory

minimum punishment required by law is (a

dishonorable

discharge)

(a

dismissal)

(confinement for life)). (A fine may also be

adjudged.) Do you understand that?

ACC: (Responds.)

NOTE: Before total forfeitures and a fine can

be approved resulting from a guilty plea at a

GCM, the accused must be advised that the

pecuniary loss could exceed total forfeitures.

Moreover, to have any fine approved, the MJ

must advise the accused of the possibility of a

fine during the providence inquiry.

MJ: Do you have any questions about the

maximum punishment authorized (and the

minimum punishment required) by law as a

result of your guilty plea?

ACC: (Responds.)

95a

2–5–21. SENTENCING INSTRUCTIONS

MJ: Members, you are about to deliberate and

vote on the sentence in this case. It is the duty

of each member to vote for a proper sentence for

the offense(s) of which the accused has been

found guilty. Your determination of the kind

and amount of punishment(, if any,) is a grave

responsibility requiring the exercise of wise

discretion. Although you must give due

consideration to all matters in mitigation and

extenuation, (as well as to those in aggravation,)

you must bear in mind that the accused is to be

sentenced only for the offense(s) of which (he)

(she) has been found guilty.

(IF OFFENSES ARE ONE FOR SENTENCING

PURPOSES:) MJ: The offenses charged in

__________ and __________ are one offense for

sentencing purposes. Therefore, in determining

an appropriate sentence in this case, you must

consider them as one offense.

MJ: You must not adjudge an excessive sentence

in reliance upon possible mitigating action by

the convening or higher authority. (A single

sentence shall be adjudged for all offenses of

which the accused has been found guilty.) (A

separate sentence must be adjudged for each

accused.)

NOTE: Maximum and Minimum Punishment.

The MJ must instruct the members on the

maximum authorized punishment that may

be adjudged and the mandatory minimum

punishment, if any. See RCM 1005(e)(1). If

there is a plea agreement, the MJ must ensure

that this instruction is in accordance with the

96a

sentence limitation contained in the plea

agreement. See RCM 705(d) and RCM

1006(d)(6). The existence of a plea agreement,

however, will not be disclosed to the members,

except upon request of the accused or when

the MJ finds that disclosure of the existence

of the plea agreement is manifestly necessary

in the interest of justice because of

circumstances arising during the proceeding.

See RCM 705(f).

MJ: The maximum punishment that may be

adjudged in this case is:

Reduction to the grade of ______;

Forfeiture of ((2/3ds) (__________) pay per month

for (12) (__) months) (all pay and allowances);

Confinement for ______; (and)

(A dishonorable discharge) (A bad-conduct

discharge) (dismissal from the service.)

MJ: The minimum punishment that must be

adjudged

in

this

case

is:

(_______________________________________________).

MJ: The maximum punishment is a ceiling on

your discretion. You are at liberty to arrive at

any lesser legal sentence (, so long as your

sentence includes at least the minimum

punishment I just stated).

NOTE: The instruction on sentencing

considerations following this NOTE should be

given only if: (1) all referred specifications

allege offenses committed before 1 January

2019, or (2) the referred specifications allege

some offenses committed before 1 January

97a

2019 and some offenses committed on or after

1 January 2019 AND the accused did not elect

to be sentenced under the “new” sentencing

rules which became effective on 1 January

2019. Otherwise, proceed to the next NOTE.

MJ: There are several matters which you should

consider in determining an appropriate

sentence. You should bear in mind that our

society recognizes five principle reasons for the

sentence of those who violate the law. They are

rehabilitation of the wrongdoer, punishment of

the wrongdoer, protection of society from the

wrongdoer, preservation of good order and

discipline in the military, and deterrence of the

wrongdoer and those who know of (his) (her)

crime(s) and (his) (her) sentence from

committing the same or similar offenses. The

weight to be given any or all of these reasons,

along with all other sentencing matters in this

case, rests solely within your discretion.

NOTE: The instruction on sentencing

considerations following this NOTE should be

given only if: (1) all referred specifications

allege offenses committed on or after 1

January

2019,

or

(2)

the

referred

specifications allege some offenses committed

before 1 January 2019 and some offenses

committed on or after 1 January 2019 AND

the accused elected to be sentenced under the

“new” sentencing rules which became

effective on 1 January 2019. Otherwise, the

instruction in the preceding NOTE should be

given. RCMs 1005(e), 1002(f).

98a

MJ: In sentencing the accused, you must impose

punishment that is sufficient, but not greater

than necessary, to promote justice and to

maintain good order and discipline in the

armed forces. In doing so, you must take into

consideration the following factors:

1. The nature and circumstances of the

offense(s) and the history and characteristics of

the accused;

2. The impact of the offense(s) on the financial,

social, psychological, or medical well-being of

any victim of the offense(s); and the mission,

discipline, or efficiency of the command of the

accused and any victim of the offense(s);

3. The need for the sentence to reflect the

seriousness of the offense(s); promote respect

for the law; provide just punishment for the

offense(s); promote adequate deterrence of

misconduct; protect others from further crimes

by the accused; rehabilitate the accused; and

provide, in appropriate cases, the opportunity

for retraining and returning to duty to meet the

needs of the service; and

4. The sentences available under these rules as

I have instructed you.

In applying these factors, you may consider any

evidence admitted during both the findings

proceeding and the presentencing proceeding

of this court-martial.

99a

PROCEEDINGS OF A

GENERAL COURT-MARTIAL

The military judge called the Article 39(a) session to

order at Davis-Monthan Air Force Base, Arizona, at

0845, on 14 February 2022, pursuant to the following

order(s):

[The convening orders, Special Order A-10, dated 30

December 2021, as amended by Special Order A-13,

dated 3 February 2022, and the Charge Sheet are

included in the certified ROT. The JAT confirmation

memo, dated 4 January 2022, is located with the

transcript in the ROT.]

...

MJ: Trial counsel, what do you calculate to be the

maximum punishment authorized by law in this case,

based solely on the accused’s guilty plea?

TC: Your Honor, may I have a moment?

MJ: Yes.

TC: Your Honor, the maximum punishment would be

--MJ: Counsel. [Motioning for her to remove her mask.]

TC: Your Honor, the maximum punishment would be,

five years and two months of confinement, a

dishonorable discharge, total forfeitures, and

reduction to E-1.

MJ: Defense counsel?

DC: Defense agrees, Your Honor.

MJ: Explain to me how you both get to that particular

punishment?

100a

TC: Your Honor, correction. Confinement would be

two years and two months, not five years.

MJ: I am going to have you announce it all at once,

correctly.

TC: Yes, Your Honor. The maximum punishment

would be, two years and two months of 19

confinement, a dishonorable discharge, total

forfeitures, and reduction to E-1.

MJ: Defense counsel, do you agree with that

maximum punishment?

DC: Yes, Your Honor.

...

MJ: All right, before we proceed any further, I do want

to discuss the maximum penalty based on the offenses

of which the accused has been found guilty. Trial

counsel, what is the maximum punishment in this

court-martial based on the convictions and

specifically, you can refer to the, I believe this is

contained in the draft instructions that were sent by

the trial counsel and agreed to by the defense counsel

but, specifically, what are you relying upon for the

maximum penalty for Specification 1 of Charge IV? If

you need a moment, take a moment.

TC: Yes, Your Honor, may I have one moment?

MJ: Yes.

TC: Your Honor, for Charge IV, Spec 1, the maximum

punishment is 25 years of confinement. Five years for

each alien.

MJ: What is the authority you are relying upon for

that?

101a

TC: And this was in our draft instructions based on -- may I have one moment, Your Honor

MJ: Yes. Counsel, just to speed things along, I believe

what you referenced, and correct me if I have gotten it

wrong, was 8 U.S.C 1324, paragraph (a)(1)(b)(2). It

goes over the particular punishment that you believe

is applicable to this offense. Did I capture that

correctly?

TC: Yes, Your Honor, you have captured that

correctly.

MJ: Okay, defense counsel, do you agree that that is

the maximum punishment for Charge IV,

Specification 1?

DC: Yes, Your Honor.

MJ: All right, trial counsel, and I just want to make

sure we are all on the same page. The maximum

punishment overall based on the convictions for the

accused.

TC: Your Honor, the maximum punishment overall

would be 57 years confinement, 57 years and two

months confinement, dishonorable discharge, total

forfeiture, and reduction to E-1.

MJ: Defense counsel, do you agree?

DC: Yes, Your Honor.

MJ: The court agrees that does appear to be the

maximum penalties which the accused can be

exposed. Trial counsel, do you have any sentencing

evidence to present?