Petition for Writ of Certiorari — Robert D. Schneider, Petitioner v. United States
Supreme Court briefDec 9, 2025
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APPENDIX
TABLE OF CONTENTS
Schneider
C.A.A.F. Decision (July 22, 2025) ............................ 1a
Air Force CCA Decision (July 15, 2024) .................. 2a
Cadavona
C.A.A.F. Decision (July 22, 2025) .......................... 28a
Air Force CCA Decision (January 16, 2025) .......... 29a
Denney
C.A.A.F. Decision (July 22, 2025) .......................... 56a
Air Force CCA Decision (March 8, 2024) ............... 57a
Gubicza
C.A.A.F. Decision (July 22, 2025) .......................... 60a
Air Force CCA Decision (2 July, 2024) .................. 61a
Hollenback
C.A.A.F. Decision (July 22, 2025) .......................... 64a
Air Force CCA Decision (August 2, 2024) .............. 65a
Jackson
C.A.A.F. Decision (July 22, 2025) .......................... 68a
Air Force CCA Decision (January 11, 2024) .......... 69a
Lampkins
C.A.A.F. Decision (July 22, 2025) .......................... 88a
Air Force CCA Decision (November 2, 2023) ......... 89a
Air Force CCA Order (February 24, 2023)........... 117a
iia
Lara
C.A.A.F. Decision (July 17, 2025) ........................ 126a
Air Force CCA Decision (March 17, 2025) ........... 127a
Air Force CCA Decision (June 28, 2023).............. 141a
Air Force CCA Decision (April 10, 2023) ............. 161a
Maymi
C.A.A.F. Decision (July 22, 2025) ........................ 179a
Air Force CCA Decision (October 5, 2023) ........... 180a
Mitton
C.A.A.F. Decision (August 21, 2025) .................... 196a
Air Force CCA Decision (June 16, 2025).............. 197a
Van Velson
C.A.A.F. Decision (July 22, 2025) ........................ 203a
Air Force CCA Decision (July 12, 2024) .............. 204a
Wood
C.A.A.F. Decision (July 22, 2025) ........................ 214a
Air Force CCA Decision (August 13, 2024) .......... 215a
York
C.A.A.F. Decision (August 11, 2025) .................... 220a
Air Force CCA Decision (April 30, 2025) ............. 221a
Department of the Air Force Regulations
DAFI 51-201 (April 14, 2022) ............................... 270a
DAFI 51-201 (September 28, 2023) ...................... 285a
DAFI 51-201 (January 24, 2024) .......................... 298a
AFMAN 71-102 (July 21, 2020) ............................ 312a
Entry of Judgment Template (February 2024) ... 320a
Record of Trial Checklist (May 2025) .................. 323a
1a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
USCA Dkt. No. 24-0228/AF
Appellee Crim.App. No. 40403
v.
ORDER
Robert D.
Schneider,
Appellant
On further consideration of the granted issue, 85
M.J. 265 (C.A.A.F. 2024), and in view of United States
v. Johnson, __ M.J. __ (C.A.A.F. 2025), it is, by the
Court, this 22nd day of July, 2025,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Bruzik)
Appellate Government Counsel (Kaufman)
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U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
No. ACM 40403
________________________
UNITED STATES
Appellee
v.
Robert D. SCHNEIDER
Technical Sergeant (E-6), U.S. Air Force,
Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 16 July 2024
________________________
Military Judge: Elijah F. Brown.
Sentence: Sentence adjudged 27 October 2022 by
GCM convened at Hill Air Force Base, Utah.
Sentence entered by military judge on 3 January
2023: Bad-conduct discharge, confinement for 12
months, reduction to E-1, and a reprimand.
For Appellant: Major Jenna M. Arroyo, USAF;
Captain Michael J. Bruzik, USAF.
For Appellee: Colonel Steven R. Kaufman, USAF;
Lieutenant Colonel J. Peter Ferrell, USAF; Major
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Olivia B. Hoff, USAF; Major Jocelyn Q. Wright,
USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, GRUEN,
Appellate Military Judges.
and
WARREN,
Chief Judge JOHNSON delivered the opinion of
the court, in which Judge GRUEN and Judge
WARREN joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
JOHNSON, Chief Judge:
A general court-martial composed of a military
judge alone found Appellant guilty, in accordance with
his pleas pursuant to a plea agreement, of eight
specifications of making false official statements in
violation of Article 107, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 907.1 The military judge
sentenced Appellant to a bad-conduct discharge,
confinement for 12 months, reduction to the grade of
E-1, and a reprimand. The convening authority took
no action on the findings or sentence.
Appellant raises four issues on appeal, which we
have partly rephrased: (1) whether the military judge
erred by considering impermissible matters included
in victim impact statements; (2) whether the sentence
1 Unless otherwise indicated, all references to the UCMJ and the
Rules for Courts-Martial are to the Manual for Courts-Martial,
United States (2019 ed.).
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is inappropriately severe; (3) whether illegible
portions of the record of trial require sentencing relief
or remand for correction; and (4) whether the
Government can prove the 18 U.S.C. § 922 firearms
prohibition is constitutional as applied to Appellant
and whether this court has jurisdiction to decide that
issue. In addition, although not raised by the parties,
we address certain errors in the post-trial processing
of Appellant’s court-martial.
We have carefully considered issue (4) and
conclude it warrants neither discussion nor relief. See
United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987); United States v. Vanzant, ___ M.J. ___, No.
ACM 22004, 2024 CCA LEXIS 215, at *23–25 (A.F. Ct.
Crim. App. 28 May 2024) (holding the 18 U.S.C. § 922
firearm prohibition notation included in the staff
judge advocate’s indorsement to the entry of judgment
is beyond a Court of Criminal Appeals’ statutory
authority to review). As to the remaining assignments
of error, we find no error that materially prejudiced
Appellant’s substantial rights. However, as explained
below, we do find an error in the entry of judgment
that warrants correction, and we take corrective
action in our decretal paragraph.
I. BACKGROUND2
In July 2017, Appellant was assigned to a
recruiting squadron focusing on recruiting health care
professionals to the Air Force and was stationed in
Nebraska. Beginning in January 2019, Appellant
“was issued a series of [three] Letters of Reprimand
[LORs] for willfully lying to applicants about the
2 The information in this section is drawn primarily from the
stipulation of fact, and quotations are from the stipulation.
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status of their applications, inputting false
information into the Air Force Recruiting Information
Support System [(AFRISS)] . . . , and failing to make
reports altogether, in violation of standing and direct
orders.” In conjunction with the third of these LORs,
in December 2019 Appellant’s commander informed
Appellant he was “to no longer perform recruiting
duties;” in addition, Appellant’s flight chief told
Appellant he was “not to have any further contact
with any applicants.”
In spite of these directions, Appellant “continued
to communicate with applicants” and “proceeded to
tell several applicants that they had been admitted
into the Air Force, when in fact they had not.”
Appellant was subsequently charged for false
statements he made to eight applicants after
December 2019.
EH initially came into contact with Appellant in
April 2018 and provided Appellant numerous
documents related to his application to join the Air
Force. Beginning in October 2019, Appellant told EH
he was scheduled for a series of interviews and
appointments; in each case Appellant subsequently
told EH the interviews or appointments were
cancelled for one reason or another. In October 2020,
Appellant sent EH a text message informing EH he
had been admitted to the Air Force. In January 2021,
Appellant met EH in person in order for EH to sign
papers “pertaining to the health profession and loan
repayment;” Appellant then “took [EH] on base to
purchase uniforms.” In reality, Appellant had input
almost no information about EH into AFRISS and had
not submitted an application on behalf of EH.
Appellant’s actions with EH came to light in February
2021 after EH contacted Officer Training School
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(OTS) in Montgomery, Alabama, in anticipation of
attending training. Appellant was subsequently
charged with making a false official statement to EH
in October 2020 that EH was selected to attend OTS.
Appellant initially made contact with IB in
December 2019 after IB used the Air Force recruiting
website. Appellant told IB multiple times that IB
would be commissioned into the Air Force,
culminating in October 2020 when Appellant falsely
told IB he had been selected for OTS and would be
stationed at Scott Air Force Base (AFB), Illinois.
Appellant told IB he could sell his current house and
look for a house near Scott AFB, which IB proceeded
to do. IB and his wife had sold their house, paid
earnest money on a new house in Saint Louis,
Missouri, and were on their way to OTS in Alabama
when they learned IB had in fact not been selected to
attend OTS.3 Appellant was charged with making a
false official statement to IB in October 2020 that IB
was selected to attend OTS.
Appellant contacted JD on a regular basis
beginning in early 2020. In February 2021, Appellant
falsely told JD that he had been selected to attend
OTS later that month. Appellant directed JD to stop
by Omaha, Nebraska, on his way to Alabama in order
to receive a copy of his orders in person. After JD
arrived in Omaha, he was contacted by Appellant’s
commander and flight chief who informed JD that he
had not been selected for OTS, and in fact Appellant
had never submitted JD’s application or other
When Appellant initially made contact with IB, IB was an
enlisted member of the Air National Guard. By the time of
Appellant’s court-martial, IB had been commissioned as an Air
Force officer.
3
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paperwork.4 Appellant was charged with making a
false official statement to JD in February 2021 that
JD was selected to attend OTS.
Appellant initially contacted JH in December
2019. JH worked with Appellant to apply to be an
officer and health professional in the Air Force,
including providing medical records and other
documents related to obtaining a waiver for a medical
issue. In December 2020, Appellant falsely told JH he
had been selected to attend OTS. When Appellant
subsequently stopped responding to JH, JH contacted
the recruiting office and learned he had not been
selected for OTS and Appellant had never submitted
JH’s application or waiver. Appellant was charged
with making a false official statement to JH in
December 2020 that JH had been selected to attend
OTS.
Appellant initially contacted AC in late 2018 or
early 2019. Through Appellant, AC attempted to
apply for the Health Professions Scholarship
Program. In January 2021, Appellant falsely told AC
she was selected as an alternate to attend OTS.5 In
fact, Appellant never submitted AC’s application and
she was never selected as an alternate. Appellant was
charged with making a false official statement to AC
By the time of Appellant’s court-martial, JD had been
commissioned as an Air Force officer.
4
5 At one point the stipulation of fact states Appellant told AC this
in January 2020. Neither the parties nor military judge
commented on this apparent discrepancy. However, in the
context of the entire stipulation of fact and Appellant’s
statements during the military judge’s guilty plea inquiry it is
clear this is a typographical error, and this statement by
Appellant in fact occurred in January 2021.
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in January 2021 that AC had been selected as an
alternate to attend OTS.
Appellant began communicating with SN in March
2018. In April or May 2020, Appellant falsely told SN
she had been selected as an alternate for OTS. When
SN received no further information from Appellant,
she contacted him again in October 2020 when he told
her “she was no longer needed.” SN later learned
Appellant had never submitted her application to the
Air Force. Appellant was charged with making a false
official statement to SN in April or May 2020 that SN
had been selected as an alternate to attend OTS.
Appellant began communicating with MM
between August and October 2019. In January or
February 2021, Appellant falsely told MM she had
been selected as an alternate to attend OTS and he
had scheduled her for a Military Entrance Processing
Station (MEPS) appointment, which he subsequently
claimed was cancelled. In fact, Appellant never
submitted MM’s application and she had not been
selected as an alternate to attend OTS. Appellant was
charged with making a false official statement to MM
in January or February 2021 that MM had been
selected as an alternate to attend OTS.
Appellant initially made contact with MJ in early
2020. In February 2020, MJ began sending Appellant
various transcripts and other documents. In January
2021, Appellant told MJ that he had a MEPS
appointment for a physical at a facility that was an
approximately four hour and forty-five minute drive
from MJ’s residence. Approximately one hour after
MJ began the drive, Appellant sent him a message
stating the appointment needed to be rescheduled. In
reality, Appellant never submitted any documents to
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the Air Force on behalf of MJ and there never had
been a MEPS appointment. Appellant was charged
with making a false official statement to MJ in
January 2021 that MJ had a MEPS appointment and
the appointment was cancelled, or words to that effect.
When Appellant was interviewed by security forces
in April 2021, he acknowledged lying to and
misleading applicants and stated he felt “disgusted”
by his actions. Appellant was subsequently diagnosed
“with severe alcohol abuse disorder and adjustment
disorder with mixed anxiety and depressed mood.”
II. DISCUSSION
A. Victim Impact Statements
1. Additional Background
During
presentencing
proceedings,
the
Government called EH, IB, IB’s spouse EB, JD, SN,
and MJ to testify as witnesses. After the Government
rested, seven of the named victims (EH, IB, JD, AC,
SN, MM, and MJ) offered written unsworn statements
pursuant to Rule for Courts-Martial (R.C.M.) 1001(c).
Four of the named victims (EH, IB, JD, and SN) also
provided oral unsworn statements, reading their
written statements to the military judge. Appellant
asserts the military judge erroneously allowed
portions of four of the unsworn statements.
a. EH’s Statement
The Defense objected to two portions of EH’s
statement. The first objection related to a paragraph
describing the “significant financial impact”
Appellant’s conduct had on EH’s life. EH described
how, inter alia, he was required to travel to Offutt
AFB, Nebraska, multiple times at his own expense;
purchased uniforms and other items relating to
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attending OTS; “sacrificed [his] position in a loan
repayment program, giving up a $62,500
reimbursement” when he left his existing employment
in anticipation of joining the Air Force; and went
without employment for 15 weeks, losing “over
$20,000” in wages. In addition, when EH resumed
civilian employment he was “unable to maintain [his]
previous salary” and had moved to a location with
increased living expenses. The paragraph concluded,
“While all calculations cannot be exactly monetized
due to the length of time our communication has
spanned, my financial loss due to [Appellant’s] actions
[is] in excess of 100 thousand dollars.” The Defense,
citing Mil. R. Evid. 403, objected specifically to this
final sentence, describing it as a “conclusionary
remark” not based on “detailed financial accounting”
which was “not exceedingly probative” but “very
prejudicial.” The military judge overruled the
objection, stating, “[b]ecause of the prefatory clause
there that indicates that calculations can’t be exactly
monetized[,] I view this as an estimation by [EH] and
will give it an appropriate weight as a result.”
The Defense’s second objection was to a sentence
in a paragraph of EH’s statement describing the
“mental and psychological” and “emotional” impact of
Appellant’s conduct. Trial defense counsel objected
specifically to the following sentence: “However, after
enduring continual changes with information and
schedules the relationship [with EH’s romantic
partner] ultimately ended due to her interpretation of
[EH’s] character throughout this process and the
inability to marry into an erratic life.” Trial defense
counsel characterized this purported impact as
“incredibly speculative,” “incredibly attenuated,” and
not “directly related to or resulting from” Appellant’s
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conduct. Trial defense counsel also cited Mil. R. Evid.
403, contending the statement was “prejudicial” and
not “probative.” The military judge overruled the
objection, explaining:
I think this is essentially [EH] expressing an
opinion as to a factor that caused his
relationship to come to an end. . . . I think I can
give that the appropriate weight. It is what this
witness believes contributed to the loss of that
relationship, which is something that he
believes was directly related to this particular
offense.
b. IB’s Statement
The Defense objected to two portions of IB’s
unsworn statement. First, trial defense counsel
objected to the following:
Within a week of [my wife and I] finding out
about [Appellant’s] scheme, we were notified
that our identities were stolen. To this day, we
do not know if he was in on it. For months after
we found out, my wife asked if we were safe.
Honestly, I didn’t have a truthful answer. I had
no idea of his freedom to roam or the extent of
his connections.
Trial defense counsel argued this portion of the
statement was speculative and did not reflect impact
directly related to or resulting from Appellant’s
offense. The military judge overruled the objection,
explaining:
I understand your objection, [d]efense counsel,
and I also understand there has been no
evidence provided to this court that [Appellant]
had anything to do with [IB’s] identity being
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stolen. Whoever stole his identity though is
different from, the sort of fear or wondering or
concern that this victim has expressed.
So, I don’t read this as asserting, that
[Appellant] was in anyway responsible.
Instead, I view it as, this particular victim
saying that, in light of the particular offense,
and then this other thing happening to him--his
identity being stolen--it just made him wonder
if it could have been related.
And so, it’s really the impact, I think, of feeling
betrayed or feeling that he’s been lied to, so he
wonders, well, if this person lied to me about
this, what else could they have done. So, I see
that there is a distinction there. I certainly am
not going to read this as, asserting that
[Appellant] actually did anything of the sort
and considering the [Mil. R. Evid.] 403balancing test, I find that I can make that
distinction appropriately and so, the--any
danger
of
unfair
prejudice,
doesn’t
substantially outweigh the probative value of
the evidence.
Trial defense counsel also objected to the following
passage about IB’s reluctance to seek counseling to
cope with the impact of Appellant’s offense:
There remains a stigma about seeking help for
this sort of thing in the military. Even if I could
without fear, I would not go to a uniformed
counselor. Private counseling is something I
would be open to receiving, but at this time, I
do not want to dig an unwanted challenge or
accumulate any more expenses over this trial.
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Trial defense counsel objected on the basis that
whether there is a stigma or the perception of a stigma
in the military for receiving counsel was not “fairly
attributable” to Appellant’s actions. The military
judge overruled the objection, explaining that he
viewed this passage as IB explaining how he might
“deal with the consequences of this offense,” and not
attributing the possible existence of a stigma to
Appellant.
c. SN’s Statement and MJ’s Statement
SN’s unsworn statement included the following:
“Allowing [Appellant] to continue to serve in any
capacity or receive any benefits provided from the Air
Force is an insult to those who genuinely serve or have
served our country.” Trial defense counsel did not
object to this portion of SN’s statement. Trial defense
counsel did object to another portion of SN’s unsworn
statement, and the military judge sustained that
objection. After the military judge ruled on that
objection, he asked the Defense whether there were
“any additional objections” to the statement. Trial
defense counsel responded, “No, Your Honor.”
MJ’s unsworn statement included the following: “It
sickens me that this individual has also been getting
paid at a [technical sergeant] pay level since he was
found out, being allowed to collect his pay and
allowances. Because of all this[,] a lesser punishment
would not be appropriate.” Trial defense counsel did
not object to this portion of MJ’s statement. Trial
defense counsel did object to an earlier portion of the
statement wherein MJ asserted Appellant “should get
the maximum penalty allowed;” the military judge
sustained that objection. The military judge then
asked whether the Defense had “any additional
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objections” to MJ’s unsworn statement. Trial defense
counsel responded, “No, Your Honor.”
2. Law
We review a military judge’s decision to accept a
victim impact statement offered pursuant to R.C.M.
1001(c) for an abuse of discretion. See United States v.
Edwards, 82 M.J. 239, 243 (C.A.A.F. 2022). “A
military judge abuses his discretion when his legal
findings are erroneous, or when he makes a clearly
erroneous finding of fact.” Id. (citing United States v.
Eugene, 78 M.J. 132, 134 (C.A.A.F. 2018); United
States v. Barker, 77 M.J. 377, 383 (C.A.A.F. 2018)).
R.C.M. 1001(c) provides that during presentencing
proceedings, the victim of a non-capital offense of
which the accused has been found guilty has the right
to make a sworn statement, an unsworn statement, or
both. See also 10 U.S.C. § 806b(a)(4)(B) (stating the
victim of an offense under the UCMJ has a right to be
reasonably heard at a court-martial sentencing
hearing). Such statements “may only include victim
impact and matters in mitigation;” they “may not
include a recommendation of a specific sentence.”
R.C.M. 1001(c)(3). For purposes of the rule, “victim
impact includes any financial, social, psychological, or
medical impact on the crime victim directly relating to
or arising from the offense of which the accused has
been found guilty.” R.C.M. 1001 (c)(2)(B).
We “consider[ ] four factors when deciding whether
an error substantially influenced an appellant’s
sentence: ‘(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.’” Edwards, 82 M.J. at 247
(quoting Barker, 77 M.J. at 384 (additional citations
15a
omitted)). “[A]n error is more likely to have prejudiced
an appellant if the information conveyed as a result of
the error was not already obvious from what was
presented at trial.” Id. (citing United States v. Harrow,
65 M.J. 190, 200 (C.A.A.F. 2007)).
“Whether an accused has waived [or forfeited] an
issue is a question of law we review de novo.” United
States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017)
(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.” United States v. Davis, 79 M.J. 329, 331
(C.A.A.F. 2020) (quoting United States v. Gladue, 67
M.J. 311, 313 (C.A.A.F. 2009)). Appellate courts
generally review forfeited issues for plain error, but “a
valid waiver leaves no error to . . . correct on appeal.”
Id. (citation omitted). However, the applicable version
of Article 66, UCMJ, 10 U.S.C. § 866, empowers a
Court of Criminal Appeals to decline to apply
forfeiture or waiver in order to address a legal error at
trial, if warranted. See United States v. Hardy, 77 M.J.
438, 442–43 (C.A.A.F. 2018) (citations omitted).
3. Analysis
Appellant asserts the military judge erred by
failing to exclude and by considering the portions of
EH’s, IB’s, SN’s, and MJ’s unsworn statements quoted
above. We address each statement in turn below.
However, as an initial matter we note that trial
defense counsel and, at one point, the military judge
purported to apply Mil. R. Evid. 403 to their analyses
of the challenged unsworn statements. Mil. R. Evid.
403 expressly applies to “evidence.” Unsworn victim
impact statements offered pursuant to R.C.M. 1001(c)
are not “evidence,” and Mil. R. Evid. 403 is
16a
inapplicable when determining whether such
statements may be properly received by the courtmartial. See United States v. Tyler, 81 M.J. 108, 112
(C.A.A.F. 2021); United States v. Hamilton, 77 M.J.
579, 586 (A.F. Ct. Crim. App. 2017) (en banc).
Accordingly, the references to Mil. R. Evid. 403 were
inapposite. However, it is evident Mil. R. Evid. 403
was not determinative to any of the rulings Appellant
challenges on appeal, and to the extent the military
judge erred by applying Mil. R. Evid. 403 at one point,
we find no material prejudice to Appellant’s
substantial rights from the error. See 10 U.S.C.
§ 859(a).
a. EH
We find the military judge did not abuse his
discretion by overruling the defense objection to EH’s
statement that his financial loss resulting from
Appellant’s offense was “in excess of 100 thousand
dollars.” EH was describing his assessment of the
financial impact resulting from the false official
statement that EH had been selected for OTS and
would be joining the Air Force, of which Appellant had
been convicted in accordance with his plea. This
“financial . . . impact on the crime victim directly
relating to or arising from the offense” of which
Appellant had been convicted was squarely within the
scope of R.C.M. 1001(c). That EH offered an estimated
minimum amount rather than a precise calculation
was not disqualifying. Moreover, EH’s itemization of
the types of costs he endured as a result of Appellant’s
deception add significant context and substantiation
to the estimate.
We also find the military judge did not abuse his
discretion by overruling the objection to EH’s
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statement regarding the loss of a romantic
relationship. EH described this event as one of the
psychological impacts directly arising from and
relating to Appellant’s offense. What is more, he did
not simply assert it was a consequence; he explained
how the uncertainty caused by Appellant’s conduct
affected the relationship. The military judge
explained he understood EH was describing his
“opinion as to a factor that caused his relationship to
come to an end.” A psychological impact may be
directly related to an offense without the offense being
the sole cause of the impact. Whether the military
judge found this information persuasive or significant
as a sentencing consideration is a separate question;
but the military judge’s explanation of his ruling and
comment that he could give the statement “the
appropriate weight,” coupled with the presumption
that military judges know and apply the law absent
evidence to contrary, convince us the military judge
received and understood EH’s unsworn statement in
the appropriate light. See United States v. Erickson,
65 M.J. 221, 225 (C.A.A.F. 2007) (citation omitted)
(“Military judges are presumed to know the law and
to follow it absent clear evidence to the contrary.”).
b. IB
We find the military judge did not abuse his
discretion by overruling the defense objection to IB’s
comments about his and his wife’s identities being
stolen. In explaining his ruling, the military judge
carefully distinguished an implication that Appellant
had stolen their identities—which IB did not allege
and the military judge had no evidence of—from the
exacerbation of the “fear or wondering or concern” IB
felt after the theft due to Appellant’s misconduct. This
psychological impact was derived from Appellant’s
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offense as well as the identity theft itself, and in that
sense was “directly related to or resulting from” the
offense.
Assuming arguendo the military judge erred by
admitting this portion of the statement, after
considering the four factors set forth in Edwards, 82
M.J. at 247, we find no material prejudice to
Appellant’s substantial rights. Several considerations
lead us to this conclusion. First, IB also briefly
referred to the identity theft during his testimony as
a sentencing witness, which the Defense did not object
to at trial or challenge on appeal. In addition, the
military judge indicated he would consider the
statement in a specific and limited way. Also, the
challenged sentences are a very small fraction of IB’s
relatively lengthy impact statement that spanned
over three single-spaced pages of text. Moreover, the
stipulation of fact, the testimony of IB and his wife,
and IB’s unsworn statement describe more direct and
dramatic negative consequences of Appellant’s
offense, including inter alia inducing IB to sell his
house, move to Saint Louis and attempt to buy a new
house there, turn down employment opportunities,
and drive to Alabama with his wife and infant son in
anticipation of attending OTS. IB’s feelings about the
identity theft, as interpreted by the military judge,
pale in comparison. Furthermore, we note the military
judge adjudged a 12-month sentence to confinement
for Specification 2, Appellant’s offense against IB,
which was concurrent with all other sentences to
confinement. The military judge also adjudged
concurrent 12-month sentences for Specifications 1
and 3, the offenses against EH and JD respectively.
As described in the stipulation of fact, witness
testimony, and unsworn statements, Specifications 1,
19a
2, and 3, involving EH, IB, and JD, had the most
severe victim impact of the eight offenses of which
Appellant was convicted. Even if the military judge
had excluded IB’s reference to the identify theft from
IB’s unsworn statement, we are confident the military
judge would still have sentenced Appellant to
confinement for 12 months for Specification 2, in
addition to the other elements of the sentence.
We also find the military judge did not abuse his
discretion by overruling the defense objection to IB’s
statements regarding his reluctance to seek
counseling after Appellant’s offense. The military
judge made clear he understood IB was not blaming
Appellant for the existence of any “stigma” from
counseling. Instead, the military judge understood IB
was explaining what ameliorative measures he chose
to pursue or forego to cope with the impact of
Appellant’s misconduct IB had already described. In
that sense, this part of the statement directly related
to Appellant’s offense and its impact.
c. SN and MJ
We find Appellant waived his objections to the
portions of SN’s and MJ’s unsworn statements that he
challenges on appeal. In each case, trial defense
counsel objected to other portions of the statements,
and the military judge sustained those objections. But
when the military judge asked whether there were
any additional objections, trial defense counsel said
“no.” The United States Court of Appeals for the
Armed Forces has held that “under the ordinary rules
of waiver, [an a]ppellant’s affirmative statements that
he had no objection to [the] admission [of evidence]
also operate to extinguish his right to complain about
[its] admission on appeal.” Ahern, 76 M.J. at 198
20a
(citations omitted). Similarly, we conclude trial
defense counsel’s assertion that the Defense had no
further objections to these statements amounted to
waiver.
Cognizant of our authority to pierce waiver in
order to correct a legal error, we find no cause to do so
in this case. Military judges are presumed to know
and apply the law, absent evidence to the contrary.
Erickson, 65 M.J. at 225. To the extent either
statement challenged on appeal might be interpreted
as an improper recommendation for a specific
sentence, we presume the military judge did not
consider them so.
B. Sentence Severity
1. Law
We review issues of sentence appropriateness de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F.
2006) (footnote omitted). We may affirm only as much
of the sentence as we find correct in law and fact and
determine should be approved on the basis of the
entire record. Article 66(d), UCMJ, 10 U.S.C. § 866(d).
“We assess sentence appropriateness by considering
the particular appellant, the nature and seriousness
of the offense[s], the appellant’s record of service, and
all matters contained in the record of trial.” United
States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App.
2015) (en banc) (per curiam) (alteration in original)
(citation omitted). Although the Courts of Criminal
Appeals are empowered to “do justice[ ] with reference
to some legal standard,” we are not authorized to
grant mercy. United States v. Guinn, 81 M.J. 195, 203
(C.A.A.F. 2021) (quoting United States v. Nerad, 69
M.J. 138, 146 (C.A.A.F. 2010)).
21a
2. Analysis
Appellant contends his sentence is inappropriately
severe. He asserts that at the time of the offenses he
was experiencing a mental health crisis and severe
alcohol abuse disorder which ultimately required inpatient treatment and lengthy rehabilitation.
Appellant contends he “did not appear to be acting
maliciously” when he committed these offenses, nor
did he personally profit from them. He highlights his
excellent service record prior to 2019, and that after
he received treatment he cooperated with law
enforcement, paid some financial compensation to a
victim, pleaded guilty to the offenses, and showed
great contrition for his actions. Appellant asks this
court to set aside his bad-conduct discharge.
Based on his guilty pleas alone, Appellant might
have been sentenced to a dishonorable discharge,
confinement for 40 years, total forfeitures, and
reduction to the grade of E-1. Appellant made a plea
agreement with the convening authority that capped
his term of confinement for each of the eight
specifications of false official statement to 365 days,
with each term to run concurrently. Appellant
received concurrent sentences to confinement of
between 3 and 12 months, in addition to a bad-conduct
discharge, reduction to the grade of E-1, and a
reprimand.
We do not find Appellant’s sentence is
inappropriately severe. After Appellant had already
been repeatedly disciplined for lying to applicants and
other misconduct, and was instructed not to have
contact with applicants, he engaged in an extensive
pattern of making false statements to health care
professionals who wanted to apply to the Air Force.
22a
Most of the victims submitted unsworn statements
and several testified to explain how Appellant’s
offenses had negatively affected their lives and their
perception of the Air Force. Certain victims
experienced significant financial loss, disruption to
their lives and careers, and particularized feelings of
anxiety and betrayal due to Appellant’s crimes. The
motivation for Appellant’s actions may be difficult to
understand, but he was certainly aware his victims
were relying on, and impacted by, his false official
statements.
Having
given
individualized
consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of
service, and all other matters contained in the record
of trial, we conclude Appellant’s sentence is not
inappropriately severe.
C. Legibility of the Record of Trial
1. Law
A complete record of the proceedings, including all
exhibits, must be prepared for any general courtmartial that results in a punitive discharge or more
than 12 months of confinement. Article 54(c)(1),
UCMJ, 10 U.S.C. § 854(c)(1); R.C.M. 1103(b)(2).
Whether a record of trial is complete is a question of
law we review de novo. United States v. Davenport, 73
M.J. 373, 376 (C.A.A.F. 2014) (citation omitted).
“[A] substantial omission renders a record of trial
incomplete and raises a presumption of prejudice that
the [G]overnment must rebut.” United States v.
Harrow, 62 M.J. 649, 654 (A.F. Ct. Crim. App. 2006)
(citation omitted), aff’d, 65 M.J. 190 (C.A.A.F. 2007).
However, “[i]nsubstantial omissions from a record of
trial do not raise a presumption of prejudice or affect
that record’s characterization as a complete one.”
23a
United States v. Henry, 53 M.J. 108, 111 (C.A.A.F.
2000). We approach the question of what constitutes a
substantial omission on a case-by-case basis. United
States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999)
(citation omitted). “In assessing either whether a
record is complete . . . the threshold question is
‘whether the omitted material was “substantial,”
either qualitatively or quantitatively.’” Davenport, 73
M.J. at 377 (quoting United States v. Lashley, 14 M.J.
7, 9 (C.M.A. 1982)) (additional citation omitted).
2. Analysis
Without objection, the military judge admitted
Prosecution Exhibit 3, a 34-page document composed
of Appellant’s performance reports and their
attachments. Appellant contends that pages five and
six of the exhibit, representing Appellant’s referral
performance report from 1 December 2018 through 30
November 2019, are “illegible.” He further contends
page eight, the indorsement to the referral
memorandum, is “blurry and does not legibly show
whether [Appellant] elected to respond” to negative
information in the performance report.6 Accordingly,
Appellant reasons the record contains a substantial
omission and requests this court either reassess the
sentence to disapprove the bad-conduct discharge, or
remand the record to correct the omission.
We are not persuaded any correction is required.
The essential flaw in Appellant’s reasoning is that we
have no indication anything is missing from the
6 Although we agree with Appellant that page eight is not clearly
marked, by our own observation there is some indication the
indorsement reflects Appellant “did not” submit matters in
response to the performance report. This conclusion is consistent
with the absence of such a response from Prosecution Exhibit 3.
24a
original record of trial. It appears the Prosecution
Exhibit 3 contained in the record is the same
Prosecution Exhibit 3 the military judge received and
reviewed during sentencing proceedings. Although we
agree with Appellant that page 5 in particular is
blurry and partially illegible, so far as the record
discloses, this is simply the state of the evidence that
was before the court-martial. Accordingly, we find no
substantial omission and no relief warranted.
D. Post-Trial Errors
1. Deferment Requests
The convening authority’s decision on action
memorandum
indicates
Appellant
requested
deferment of his confinement, the reduction in grade,
and the automatic forfeitures of pay and allowances.
The convening authority expressly denied the
deferments of the reduction in grade and automatic
forfeitures, citing “the nature of the offenses of which
[Appellant] was convicted and the effect of deferment
on good order and discipline in the command.”
However, the convening authority did not grant or
deny in writing Appellant’s request to defer his
confinement, nor state the reasons for doing so. The
record discloses no indication the Defense objected or
moved for correction of the convening authority’s
failure to address the request to defer confinement.
We review a convening authority’s denial of a
deferment request for an abuse of discretion. United
States v. Sloan, 35 M.J. 4, 6 (C.M.A. 1992), over-ruled
on other grounds by United States v. Dinger, 77 M.J.
447, 453 (C.A.A.F. 2018); R.C.M. 1103(d)(2). “When a
convening authority acts on an [appellant]’s request
for deferment of all or part of an adjudged sentence,
the action must be in writing (with a copy provided to
25a
the [appellant]) and must include the reasons upon
which the action is based.” Id. at 7 (footnote omitted);
see also R.C.M. 1103 (providing procedures for
deferment). “A motion to correct an error in the action
of the convening authority shall be filed within five
days after the party receives the convening authority’s
action.” R.C.M. 1104(b)(2)(B).
Because Appellant did not object or move to correct
an error in the convening authority’s decision on
action, we review the convening authority’s decision
on action for plain error. See Ahern, 76 M.J. at 197
(citations omitted) (noting appellate courts review
forfeited issues for plain error). Under the
longstanding precedent of Sloan, the convening
authority’s failure to act on the confinement
deferment request in writing and state the reasons
was an error. See 35 M.J. at 7. For purposes of our
analysis, we assume without holding the error was
clear or obvious. However, under the circumstances of
this case, we find no material prejudice to Appellant.
Appellant bore “the burden of showing that the
interests of [himself] and the community in deferral
outweigh[ed] the community’s interests in imposition
of the punishment on its effective date.” R.C.M.
1103(d)(2). However, Appellant’s clemency request
only impliedly requested deferment of his confinement
and offered no specific justification for it. Moreover,
Appellant not only forfeited the issue at the time, but
he has not alleged on appeal prejudicial error by the
convening authority. Furthermore, the convening
authority denied Appellant’s other deferment
requests with a consistent rationale, and also denied
Appellant’s request to waive automatic forfeitures for
the benefit of his dependents pursuant to Article 58b,
UCMJ, 10 U.S.C. § 858b. In the absence of any
26a
indication the convening authority entertained an
improper rationale for denying deferment of
confinement, we find Appellant’s material rights were
not substantially prejudiced by the convening
authority’s failure to deny the deferment in writing
and state the reasons for the denial.
2. Statement of Trial Results and Entry of
Judgment
The Specification of Charge I alleged Appellant
had on divers occasions willfully disobeyed a lawful
command from his squadron commander in violation
of Article 90, UCMJ, 10 U.S.C. § 890. The Statement
of Trial Results (STR), prepared after the courtmartial pursuant to R.C.M. 1101, correctly reflected
Appellant had pleaded “not guilty” to this
Specification, and that the Specification was
“[w]ithdrawn and dismissed with prejudice in
accordance with the plea agreement.” The STR also
correctly indicated Appellant had pleaded “not guilty”
to Charge I, but it incorrectly stated he had been
found “not guilty” of Charge I when in fact it also had
been dismissed with prejudice. The entry of judgment
prepared pursuant to R.C.M. 1111 repeats this error,
stating Appellant was found “not guilty” of Charge I
rather than it was dismissed with prejudice in
accordance with the plea agreement. We find it
appropriate to modify the entry of judgment to ensure
it correctly reflects the disposition of the charges and
specifications in this case, and we take corrective
action in our decretal paragraph. See R.C.M.
1111(c)(2).
III. CONCLUSION
The entry of judgment is modified as follows: for
Charge I, the finding is modified by excepting “NG”
27a
and substituting therefor “Withdrawn and dismissed
with prejudice in accordance with the plea
agreement.” The findings and the sentence are correct
in law and fact, and no error materially prejudicial to
the substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and the sentence are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
28a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
USCA Dkt. No. 25-0114/AF
Appellee Crim.App. No. 40476
v.
ORDER
Ian J.B.
Cadavona,
Appellant
On further consideration of the granted issues, __
M.J. __ (Daily Journal May 9, 2025), and in view of
United States v. Johnson, __ M.J. __ (C.A.A.F. 2025),
it is, by the Court, this 22nd day of July, 2025,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Johnson)
Appellate Government Counsel (Payne)
29a
U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
No. ACM 40476
________________________
UNITED STATES
Appellee
v.
Ian J. B. CADAVONA
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 16 January 2025
________________________
Military Judge: Matthew P. Stoffel (arraignment,
motions); Christopher D. James (trial). 1
Sentence: Sentence adjudged 27 October 2022 by
GCM convened at Kadena Air Base, Japan.
Sentence entered by military judge on 6 December
1 The trial judge for the arraignment and motions hearing stated
on the record that Article 30a, Uniform Code of Military Justice,
10 U.S.C. § 830a, proceedings had taken place on 5 November
2021 and on 18 November 2022. However, the record does not
contain any information about the Article 30a, UCMJ, judge, or
any documentation related to the proceedings. Appellant does
not assign error, and we find none as neither Rules for CourtsMartial 1112(b) nor 1112(f) require it.
30a
2022: Dishonorable discharge,
confinement, and a reprimand.
21
months’
For Appellant: Major Frederick J. Johnson,
USAF.
For Appellee: Colonel Steven R. Kaufman, USAF;
Lieutenant Colonel J. Peter Ferrell, USAF; Mary
Ellen Payne, Esquire.
Before ANNEXSTAD, DOUGLAS, and PERCLE,
Appellate Military Judges.
Judge DOUGLAS delivered the opinion of the
court, in which Senior Judge ANNEXSTAD and
Judge PERCLE joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
DOUGLAS, Judge:
A general court-martial composed of a military
judge convicted Appellant, contrary to his pleas, of one
specification2 of possession of child pornography in
violation of Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934.3 The military judge
sentenced Appellant to a dishonorable discharge, 21
The military judge merged two specifications—both alleging
possession of child pornography but during different
timeframes—into one specification. See Section II.B. infra.
2
3 Unless otherwise noted, all references to the UCMJ and to the
Rules for Courts-Martial (R.C.M.) are to the Manual for CourtsMartial, United States (2019 ed.).
31a
months’ confinement, and a reprimand. The
convening authority took no action on the findings and
approved the sentence in its entirety.4
Appellant raises four issues on appeal which we
have reworded: whether (1) the prosecution of this
offense constitutes plain error because the
Government knew about the evidence of the
underlying misconduct prior to Appellant’s first courtmartial; (2) Appellant was denied effective assistance
of counsel when his trial defense counsel withdrew an
objection to a change in the specification of the charge;
(3) a 224-day appellate docketing delay warrants
relief; and (4) 18 U.S.C. § 922 is constitutional as
applied in Appellant’s case. We also considered an
additional issue, not raised by Appellant, that was
identified during this court’s Article 66(d), UCMJ, 10
U.S.C. § 866(d), review: (5) whether Appellant is
entitled to relief for facially unreasonable appellate
delay in accordance with United States v. Moreno, 63
M.J. 129 (C.A.A.F. 2006), or United States v. Tardif,
57 M.J. 219 (C.A.A.F. 2002).
We have carefully considered Appellant’s
contention in issue (4) and find that it does not require
discussion or warrant relief. See United States v.
Matias, 25 M.J. 356, 361 (C.M.A. 1987). As to the
remaining issues, we find no error that materially
The convening authority referred two specifications of
possession of child pornography, alleging possession occurred
both before 1 January 2019 and on or after 1 January 2019.
Pursuant to R.C.M. 902A, and before arraignment, Appellant
elected sentencing rules in effect on 1 January 2019. This
election remained in effect after the trial judge merged the two
offenses for findings purposes.
4
32a
prejudiced Appellant’s substantial rights, and we
affirm the findings and the sentence.
I. BACKGROUND
Appellant joined the Air Force in 2016 and was
assigned to Kadena Air Base (AB), Japan. By late
2019, law enforcement was investigating him for
indecent recording and broadcasting of an adult. As
part of that investigation, the Air Force Office of
Special Investigations (OSI) searched and seized
Appellant’s electronic devices. Unrelated to the
indecent recording and broadcasting allegations, OSI
agents found suspected child exploitive material
(CEM). They obtained additional search warrants,
including one for Appellant’s iCloud account. This
account was used as back-up storage for one or more
of Appellant’s devices. In Appellant’s iCloud account,
OSI discovered dozens of videos of child pornography,
which became the basis for the Article 134, UCMJ,
conviction.
II. DISCUSSION
A. Failure to Try All Known Charges at a
Single Court-Martial
For the first time, on appeal, Appellant asserts the
Government intentionally prosecuted him in
successive courts-martial when it knew of all offenses
before the start of the first court-martial. As evidence
of this argument, Appellant directs us primarily to the
OSI preliminary report, dated 8 September 2020,
which lists the discovered child pornography videos,
with names and source paths. The report explains
that the videos were contained in the Apple search
return for Appellant’s iCloud account. The summary
of the findings stated it was a preliminary analysis
and that the videos were sent to the National Center
33a
for Missing and Exploited Children (NCMEC) portal
for further analysis. As a consequence of being tried in
two successive courts-martial, Appellant argues, he
was prejudiced because the Government punished
him unnecessarily by forcing consecutive sentences.
The Government disagrees with Appellant’s
contentions and submits that it was not prepared to
prove the Article 134, UCMJ, offense of child
pornography possession at the time of the first courtmartial. We find the Appellant has not met his burden
on this issue we and find no error.
1. Additional Background
Investigation into Appellant began in late 2019
and continued into 2020. During that time, Appellant
was investigated for indecent recording and
broadcasting. On 25 March 2021, at Kadena AB, he
was found guilty, contrary to his pleas, at a general
court-martial, comprised of a military judge alone, of
two specifications of indecent recording and
broadcasting in violation of Article 120c, UCMJ, 10
U.S.C. § 920c, and one specification of obstruction of
justice in violation of Article 131b, UCMJ, 10 U.S.C.
§ 131b. He was sentenced to a bad-conduct discharge,
seven months’ confinement, and reduction to the
grade of E-1. On 23 September 2022, the Air Force
Court of Criminal Appeals affirmed the findings of
guilty and the sentence. See United States v.
Cadavona, No. ACM 40129, 2022 CCA LEXIS 545, at
*15 (A.F. Ct. Crim. App. 23 Sep. 2022) (unpub. op.),
rev. denied, 83 M.J. 249 (C.A.A.F. 2023).
After release from confinement, Appellant was
prosecuted at Kadena AB, for possession of child
pornography. On 27 October 2022, he was found guilty
at a general court-martial of the one specification
34a
before this court: possession of child pornography in
violation of Article 134, UCMJ. He was sentenced to a
dishonorable discharge, 21 months’ confinement, and
a reprimand.
During the presentencing phase of his second
court-martial, Appellant, in his unsworn statement,
explained, “I have known a second court-martial is
[sic] coming since before my first court went to trial.”
Appellant’s
trial
defense
counsel,
during
presentencing argument, repeated Appellant’s
assertion, “He already knew that this court-martial
was coming before he even went to trial the first time.”
Appellant pleaded not guilty to a charge of violating
Article 134, UCMJ, at this trial. He did not object or
move to dismiss for any reason.
2. Law
a. Standard of Review
The lack of a motion or objection at trial forfeits the
issue, absent waiver. Rule for Courts-Martial (R.C.M.)
905(e). Forfeited issues are reviewed for plain error.
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F.
2017) (citing United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009)). For this court to grant relief under a
plain error standard of review, Appellant bears the
burden of establishing: “(1) there was error; (2) the
error was clear and obvious; and (3) the error
materially prejudiced a substantial right.” United
States v. Gomez, 76 M.J. 76, 79 (C.A.A.F. 2017) (citing
United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F.
2014)). “As all three prongs must be satisfied . . . the
failure to establish any one of the prongs is fatal to a
plain error claim.” Id. (omission in original) (quoting
United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F.
2006)).
35a
b. Joinder
“The purpose of military law is to promote justice,
to assist in maintaining good order and discipline in
the armed forces, to promote efficiency and
effectiveness in the military establishment, and
thereby to strengthen the national security of the
United States.” Manual for Courts-Martial, United
States (2019 ed.) (MCM), pt. I, Preamble, ¶ 3.
“Pretrial, trial, and post-trial procedures,
including modes of proof, for cases arising under
[Chapter 47, UCMJ,] triable in courts-martial . . . may
be prescribed by the President by regulations which
shall . . . apply the principles of law and the rules of
evidence generally recognized in the trial of criminal
cases in the United States . . . .” Article 36(a), UCMJ,
10 U.S.C. § 836(a).
“Charges and specifications alleging all known
offenses by an accused may be preferred at the same
time. Each specification shall state only one offense.
What is substantially one transaction should not be
made the basis for an unreasonable multiplication of
charges against one person.” R.C.M. 307(c)(4)
(emphasis added). “Ordinarily, all known charges
should be tried at a single court-martial.” R.C.M.
906(b)(10), Discussion.
In the discretion of the convening authority,
two or more offenses charged against an
accused may be referred to the same courtmartial for trial, whether serious or minor
offenses or both, regardless [of] whether
related. Additional charges may be joined with
other charges for a single trial at any time
before arraignment if all necessary procedural
requirements concerning the additional
36a
charges have been complied with. After
arraignment of the accused upon charges, no
additional charges may be referred to the same
trial without the consent of the accused.
R.C.M. 601(e)(2) (emphasis added). “The military
justice system encourages the joinder of all known
offenses at one trial.” United States v. Simpson, 56
M.J. 462, 464 (C.A.A.F. 2002) (footnote omitted)
(citing R.C.M. 601(e)(2), Manual for Courts-Martial,
United States (2000 ed.)). This preference does not
create an entitlement. See United States v. Booker, 62
M.J. 703, 707 (A.F. Ct. Crim. App. 2006).
Article 33, UCMJ, 10 U.S.C. § 833, addresses nonbinding guidance for decisionmakers when it comes to
making charging decisions:
The President shall direct the Secretary of
Defense to issue . . . non-binding guidance
regarding factors that commanders, convening
authorities, staff judge advocates, and judge
advocates should take into account when
exercising their duties with respect to
disposition of charges and specifications in the
interest of justice and discipline . . . .
This policy of the non-binding disposition guidance
outlines several factors for decision makers to
consider “and to further promote the purpose of
military law.” See MCM, App. 2.1, ¶ 1.1.a, at A2.1-1
(where this appendix supplements the MCM and
provides disposition factors for decision makers to
consider, “but does not require a particular disposition
decision or other action in any given case”).
37a
3. Analysis
Appellant advances the argument that he is
entitled to joinder of offenses at one court-martial. We
analyze this issue for plain error, because Appellant
did not object or move to dismiss on the basis of having
been tried for other offenses while this offense was
known by the Government. According to his unsworn
statement in his second presentencing hearing,
Appellant knew he was under investigation for
possession of child pornography before his first courtmartial. If he had wanted to be tried for possession of
child pornography videos at the time when he was
tried for indecent recording and broadcasting, the best
time to articulate that perspective would have been
prior to arraignment at his first trial. But that trial
result and the appellate review are now final and are
not before us.
Here, the Government chose not to prefer or refer
all known offenses to the same court-martial. See
R.C.M. 307(c)(4); R.C.M. 601(e)(2). From a review of
the record, it appears the Government had not
completed its investigation into the Article 134,
UCMJ, offense at the time other charges were referred
to Appellant’s first court-martial. In order to convict
Appellant of possession of child pornography, as
charged in this case, the Government was required to
prove that at or near Kadena AB, Japan, between 17
February 2017 and on or about 31 March 2020: (1)
Appellant knowingly and wrongfully possessed child
pornography; and (2) under the circumstances, the
conduct was of a nature to bring discredit upon the
armed forces. See 10 U.S.C. § 134; MCM, pt. IV,
¶ 95.b.(1). Appellant may not be convicted of
possession of child pornography “if he was not aware
that the [videos] were of minors, or what appeared to
38a
be minors, engaging in sexually explicit conduct.
Awareness may be inferred from circumstantial
evidence, such as the name of a computer file or folder
. . . and the number of [videos] possessed.” MCM, pt.
IV, ¶ 95.c.(5). Further, “[A]ny facts or circumstances
that show that a visual depiction of child pornography
was unintentionally or inadvertently acquired are
relevant to wrongfulness . . . .” MCM, pt. IV,
¶ 95.c.(12). The Government knew of the potential
offense of possession of child pornography, but,
evidently, was not prepared to prove at that time that
Appellant knew that he possessed child pornography
and knew it was wrongful beyond a reasonable doubt.
Furthermore, the known offense of possession of
child pornography videos was not an offense that was
substantially one transaction with the convicted
offenses of indecent recording and broadcasting of a
specific adult in Appellant’s first court-marital. See
R.C.M. 307(c)(4). Appellant’s possession of child
pornography videos was discovered as a result of the
investigation into allegations of indecent recording of
an adult, but the child pornography videos were
independent from that original investigation.
The purposes of military justice and discipline
include promoting efficiency and effectiveness. MCM,
Pt. I, Preamble, ¶ 3. The Government could have
waited until the investigation into the possession of
child pornography videos was completed before
referring all charges to the same court-martial. See
Simpson, 56 M.J. at 464. However, there is no
requirement the Government do so. See Booker, 62
M.J. at 707; see also R.C.M. 307(c)(4) (stating
“[c]harges and specifications alleging all known
offenses by an accused may be preferred at the same
time” (emphasis added)). Further, the record before us
39a
does not indicate whether “all necessary procedural
requirements concerning the additional charges [had]
been complied with” for joinder of offenses. R.C.M.
601(e)(2). Finally, we do not find evidence in the
record indicating the Government intentionally
delayed prosecuting Appellant for the purpose of
conducting a separate trial in order to increase its
chances of obtaining a greater sentence.
Therefore, we do not find the Government plainly
erred in this case by referring the Article 134, UCMJ,
charge to a court-martial separate from the offenses
tried at his previous court-martial. Thus, Appellant
failed to meet the first prong of the plain error
analysis. Gomez, 76 M.J. at 79 (citation omitted). This
failure is fatal to the remainder of his plain error
claim. Id.
B. Ineffective Assistance of Counsel
Appellant asserts his trial defense counsel were
ineffective when they withdrew an objection to the
Government striking the words “within his iCloud
account” from the merged specification. The
Government disagrees. After thoroughly reviewing
this issue anew, we find Appellant has not met his
burden. Appellant’s trial defense counsel were not
ineffective.
1. Additional Background
Initially, Appellant was charged with two
specifications of possession of videos of child
pornography in violation of Article 134, UCMJ. The
primary difference between the two specifications was
the charged timeframe. The first specification
(Specification 1) included possession “between on or
about 17 February 2017 and on or about 31 December
2018.” The second specification (Specification 2)
40a
included possession “between on or about 1 January
2019 and on or about 22 October 2019.” After
arraignment, but prior to Appellant’s pleas, the trial
defense counsel moved to merge the specifications for
findings.5 The Government did not oppose. The trial
judge then granted the defense motion for merger for
purposes of findings. At this point, the merged
specification incorporated the entire charged
timeframe from both Specifications 1 and 2.
The Government then moved to make four changes
to the merged specification. Of the four proposed
changes, the Defense had no objection to three. First,
the Government moved to strike “on or about” before
the first date of the charged timeframe, 17 February
2017. Second, the Government moved to strike the end
date, “22 October 2019,” and replace it with a new end
date, 31 March 2020. Third, the Government moved to
make singular the word “minors” to instead reflect the
words “a minor, or what appears to be a minor.” With
no objection from the trial defense counsel, the
military judge granted these government changes to
the merged specification.
The Government’s fourth requested change was to
strike through the words “within his iCloud account.”
The Defense objected on the basis that this change
was not a minor change. The following exchange then
occurred between the military judge (MJ) and the
circuit defense counsel (CDC).
MJ: Okay. Let me ask you a couple of questions.
5 The Government’s bill of particulars identified that the same
evidence would be used to prove up both specifications of
violating Article 134, UCMJ.
41a
CDC: Yes, Your Honor.
MJ: First question, do you agree, if I was to
agree with you, that the [G]overnment could
then come back and recharge your client
without that language and it would not be
double jeopardy,[6] because as it is right now it’s
specific as far as it’s within the iCloud account.
So[,] I have no clue what’s going to happen in
this court, but let’s say for whatever reason[,] I
was to find your client not guilty. They have
chosen to charge him specifically [“]within his
iCloud account.[”] If they chose to charge him
without that[,] what is your position on that?
And do you need a moment? And do you need a
recess?
After a short recess, the parties reconvened and the
Defense answered the trial judge’s questions as
follows:
CDC: Defense is not objecting -- withdraws its
objection to the proposed change by the
[G]overnment.
Based on Appellant’s claim that his trial defense
counsel were ineffective when they did not object to
the change in the specification, and in response to the
Government’s motion to compel declarations from
trial defense counsel, this court, on 29 August 2024,
ordered trial defense counsel to provide declarations
responsive to this claim. On 20 September 2024, the
court attached two declarations to the record. 7 Major
6 U.S. CONST. amend. V.
7 Statute directs the court to review “the entire record” when
fulfilling its duties. Article 66(d)(1), UCMJ; 10 U.S.C. § 866(d)(1).
Our superior court has recognized the court’s ability to
42a
(Maj) SH was the circuit defense counsel and Maj EJ
was the area defense counsel. Both represented
Appellant at his second court-martial. Their
declarations are substantively the same and explain
the strategic reasoning behind their decision to
withdraw the objection.
Maj SH explained that the withdrawal of the
objection was made after full discussion with
Appellant, and with his consent. The location of the
files did not change the theory of their case, which was
that the possession was unknowing. Further, the
withdrawal “ensured finality.” If acquitted,
Appellant’s acquittal “would increase the likelihood
that double jeopardy would fully attach to the entirety
of the evidence in the possession of the United States.”
Finally, Maj SH explained, due to the consultation
with their confidential expert consultant, the trial
defense team was aware of evidence the Government
possessed which was “inflammatory and extremely
inculpatory.” If the Government had more time to
prepare, and potentially charge this offense again, “a
guilty finding was all but a foregone conclusion with
greater sentencing exposure.” Maj EJ’s declaration
was consistent with Maj SH’s. She added, “Since this
was already the [G]overnment’s second prosecution of
[Appellant], there appeared to be a risk that the
[G]overnment could try again under a different theory
supplement the record in resolving issues raised in the record,
but not fully resolvable, including claims of ineffective assistance
of counsel (IAC). United States v. Jessie, 79 M.J. 437, 445
(C.A.A.F. 2020). We consider the trial defense counsel’s
declarations to help us resolve Appellant’s claims of IAC,
accordingly.
43a
if it did not like the findings or sentencing outcome of
the court-martial.”
2. Law
a. Standard of Review
We review claims of ineffective assistance of
counsel (IAC) de novo. United States v. Palik, 84 M.J.
284, 288 (C.A.A.F. 2024) (citing United States v.
Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007)).
b. Ineffective Assistance of Counsel
To prevail on a claim of IAC, Appellant must
demonstrate: “(1) that his counsel’s performance was
deficient, and (2) that this deficiency resulted in
prejudice.” Id. (quoting United States v. Captain, 75
M.J. 99, 101 (C.A.A.F. 2016)). Appellant must
overcome “a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance.” Strickland v. Washington,
466 U.S. 668, 689 (1984).
We use a three-part test to analyze whether a
claim of IAC has overcome this presumption of
competence:
(1) [Is] Appellant’s allegation[ ] true; if so, “is
there a reasonable explanation for counsel’s
actions;”
(2) If the allegation[ is] true, did defense
counsel’s level of advocacy “fall measurably
below the performance . . . [ordinarily expected]
of fallible lawyers?” [and]
(3) If defense counsel [were] ineffective, is there
a “reasonable probability that, absent the
errors,” there would have been a different
result?
44a
Palik, 84 M.J. at 289 (omission in original) (quoting
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F.
2011)) (additional citation omitted).
c. Changes to Charges and Specifications
“A major change is one that adds a party, an
offense, or a substantial matter not fairly included in
the preferred charge or specification, or that is likely
to mislead the accused as to the offense charged.”
R.C.M. 603(b)(1). “A minor change in a charge or
specification is any change other than a major
change.” R.C.M. 603(b)(2). “Minor changes include
those necessary to correct . . . slight errors.” R.C.M.
603(b)(2), Discussion.
“After referral, a major change may not be made
over the objection of the accused unless the charge or
specification is withdrawn, amended, and referred
anew.” R.C.M. 603(d)(1). After arraignment, the trial
judge “may, upon motion, permit minor changes in the
charges and specifications at any time before findings
are announced if no substantial right of the accused is
prejudiced.” R.C.M. 603(e).
In one case, our superior court found a major
change where “it altered the means of committing the
offense and that change was not fairly included in the
original specification.” United States v. Reese, 76 M.J.
297, 300 (C.A.A.F. 2017). However, under the right
circumstances, “changing the means by which a crime
is accomplished may also constitute a slight error.” Id.
(citation omitted)
3. Analysis
Applying the three-part test to Appellant’s
assignment of error, we start with the first part: is
Appellant’s allegation true? That is, did his trial
45a
defense counsel withdraw an objection to the
Government’s striking of the words “within his iCloud
account?” The record reflects Appellant’s trial defense
counsel did, in fact, withdraw an objection to the
Government’s proposed change to the merged
specification before arraignment. Trial defense
counsel’s objection was articulated as an objection
based upon the theory that the Government’s
proposed edit was a major change. Without ruling on
the Government’s proposed edit, or trial defense
counsel’s objection, the trial judge asked the trial
defense counsel a question. The trial judge offered
that if he agreed with the Defense, and sustained the
objection, what did trial defense counsel believe might
be the Government’s next move? Instead of
specifically answering that question, the defense team
requested a recess, which the trial judge granted.
Upon reconvening, the trial defense counsel withdrew
their objection.
Finding the allegation is in fact, true, we turn to
the remainder of the first part: is there a reasonable
explanation for counsel’s actions? We consider the
attached trial defense counsel declarations because
the record does not expose trial defense counsel’s
rationale behind their decision. The declarations of
Appellant’s trial defense counsel explain their
strategic decisions behind the withdrawal of their
objection to this change by the Government. First,
they fully discussed this issue with Appellant, and
ensured he understood their advice, and consented to
the withdrawal of the objection. Second, they
explained that whether the Government was required
to prove the location of the evidence, within the iCloud
account, did not impede their theory of the case, which
was to attack the Government’s ability to prove an
46a
essential element of the offense: knowing and
wrongful possession. Third, and finally, they
explained that they were aware the Government
possessed additional evidence that would have proven
challenging to Appellant’s theory of defense that he
did not know about the child pornography possession.
Had the Government been aware of this additional
evidence they already had, explained trial defense
counsel, the Government could have and probably
would have charged him again. This appears to have
been a calculated risk assessment they, and
Appellant, believed was in Appellant’s favor. His trial
defense counsel’s strategic decision has multiple
reasonable explanations. We find the first part of the
three-part test is met, in counsel’s favor.
Concluding the first part is met, subsequent
analysis is not required. Nonetheless, we address the
second part of the three-part test: if Appellant’s
allegation is true, as we have determined, did trial
defense counsel’s level of advocacy fall measurably
below the performance ordinarily expected of fallible
lawyers? Quite the opposite. We find the calculated
risk assessment counsel made, with the advice and
consent of their client, was intended to protect
Appellant from potential future prosecution,
compounding evidence of guilt and sentencing.
Regardless of whether double jeopardy would have
attached, we find the trial defense counsel’s level of
advocacy was exactly where it needed to be: zealously
advocating for their client’s best interests. They did
not fall below the performance ordinarily expected of
competent defense counsel. We find the second part of
the three-part test is also satisfied, in trial defense
counsel’s favor.
47a
We conclude counsel’s performance was reasonable
and fell within the performance ordinarily expected of
trial defense counsel. See Palik, 84 M.J. at 289.
Because Appellant has not met his burden on the first
two parts of the three-part test, we need not address
the third part, prejudice.8 Because we do not find trial
defense counsel erred, we do not consider prejudice.
Trial defense counsel were not ineffective. Id. at 288.
C. Delay in Forwarding Appellant’s Record
to this Court
Appellant seeks relief due to the Government’s
“unexplained” delay in forwarding the record of trial
(ROT) to this court by asking us to reduce his
dishonorable discharge to a bad-conduct discharge.
The Government disagrees the ROT processing delay
is unexplained or was delayed such that relief should
be granted. We find that no relief is warranted.
1. Additional Background
Appellant’s charge of violating Article 134, UCMJ,
was referred to a general court-martial on 22 March
2022. Appellant’s sentence was announced on 27
October 2022. His appeal was docketed with this court
on 8 June 2023. Consequently, 224 days transpired
from sentencing to docketing.
On 17 November 2022, the convening authority
signed the decision on action memorandum. On 6
December 2022, the trial judge signed the entry of
judgment. On 4 January 2023, the court reporter
8 Whether the Government’s motion to strike through the words
“within his iCloud account” was a major or minor change, was
not determined at the trial level. Whether this change altered the
means of committing the offense is not before us.
48a
certified the record of trial (ROT). On 22 March 2023,
Appellant was served the ROT.
On 15 October 2024, the court granted the
Government’s Motion to Attach Declarations
responsive to Appellant’s claim of an “unexplained”
docketing delay. The court attached two declarations,
one from Captain (Capt) JH, the Chief of Legal
Operations, assigned to the 18th Wing legal office (18
WG/JA), and one from Maj KB, the Chief of Military
Justice, assigned to the 5th Air Force legal office (5
AF/JA) advising the general court-martial convening
authority.9 The declaration from 18 WG/JA included a
chronology from sentencing to docketing.
Capt JH declared the assembly of the ROT took
place between 5 January 2023 and 10 April 2023,
which was 95 days. Initially, 18 WG/JA was creating
a hardcopy ROT, but were then instructed to assemble
an electronic ROT, which necessitated starting a new
process. The office also spent a portion of this time
attempting to obtain two sealed exhibits from OSI.
Although 18 WG/JA was instructed to create an
electronic ROT, the 5 AF/JA wanted a hard copy
version for their quality review, which 18 WG/JA
provided.
In her declaration, Maj KB explained that the ROT
was forwarded by mail to 5 AF/JA on 10 April 2023
and then shipped back to the installation on 4 May
2023. 18 WG/JA mailed the ROT on 9 May 2023 to the
Appellate Records section of the Department of the
Air Force’s Military Justice Law and Policy division,
located at Joint Base Andrews, Maryland. Appellate
9 We consider the Government’s declarations to help us resolve
Appellant’s claim of docketing delay, which is not fully resolvable
by the record. See Jessie, 79 M.J. at 445.
49a
Records received it on 31 May 2023, conducted their
review, and forwarded the ROT to the court on 8 June
2023.
2. Law
We review “de novo whether an appellant’s due
process rights are violated because of post-trial delay.”
United States v. Livak, 80 M.J. 631, 633 (A.F. Ct.
Crim. App. 2020) (citing Moreno, 63 M.J. at 135).
Livak established an aggregate sentence-todocketing standard threshold of 150 days for facially
unreasonable delay in cases like Appellant’s, that
were referred to trial on or after 1 January 2019. Id.
(citing Moreno, 63 M.J. at 142). This threshold
“appropriately protects an appellant’s due process
right to timely post-trial . . . review and is consistent
with our superior court’s holding in Moreno.” Id.
Moreno applied four factors to consider whether
there was a due process violation: “(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 (citations
omitted). Prejudice stems from three interests: (1)
“prevention of oppressive incarceration pending
appeal;” (2) “minimization of anxiety and concern;”
and (3) impairment of the ability to present a defense
at a rehearing. Id. at 138–39 (citations omitted).
Where an appellant has not shown prejudice from
the delay, we cannot find a 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).
3. Analysis
50a
We have applied the Livak standard in Appellant’s
case de novo. Livak, 80 M.J. at 633. The Livak
standard is one part of the total Moreno standard. If a
case does not make the Livak aggregate sentence-todocketing threshold of 150 days, this period
constitutes a facially unreasonable post-trial delay.
Id.
We considered the four factors identified in
Moreno. First, we find there is a delay that exceeds
the 150-day threshold by 74 days, which weighs in
Appellant’s favor.
Second, the reasons for the delay are varied. The
convening
authority’s
decision
on
action
memorandum was signed 28 days after sentencing.
The court reporter certified the record of trial 68 days
after sentencing. Appellant received the ROT 146
days after sentencing. This processing is efficient and
in line with the 150-day sentencing-to-docketing
threshold. However, the Government’s declarations
and chronology indicate 95 days were taken to
assemble two versions of the ROT, a hard copy and an
electronic copy. They also indicate that 5 AF/JA
performed a review of the hard copy after it was
mailed to them. After taking almost 30 days to
perform the review, they mailed it back to 18 WG/JA.
After making the requisite corrections, 18 WG/JA
mailed the ROT to the Appellate Records section. This
portion of the timeline could have been more efficient.
We find it weighs in Appellant’s favor.
Third, not until Appellant’s initial brief to this
court does he assert timely Livak review, which
weighs against him. His argument for prejudice is, in
part, predicated on his first assignment of error, that
he was unnecessarily prosecuted in a second court-
51a
martial, foreclosing the possibility of concurrent
confinement terms. Appellant also advocates
particularized anxiety and concern in his brief, by
pointing to his unsworn statement at trial. These
arguments are not persuasive, and weigh against
Appellant.
On balance, we do not find a due process violation.
Livak, 80 M.J. at 633. Further, we do not find the
delay egregious. Toohey, 63 M.J. at 362.
Recognizing our authority under Article 66(d),
UCMJ, 10 U.S.C. § 866(d), 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 224 (citation omitted).
After considering the factors enumerated in United
States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.
2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude
it is not.
D. Timeliness of Appellate Review
1. Law
“[C]onvicted service members have a due process
right to timely review and appeal of courts-martial
convictions.” Moreno, 63 M.J. at 135 (citing United
States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004));
Diaz v. Judge Advocate General of the Navy, 59 M.J.
34, 37–38 (C.A.A.F. 2003)). Whether an appellant has
been deprived of his due process right to speedy posttrial and appellate review, and whether constitutional
error is harmless beyond a reasonable doubt, are
questions of law we review de novo. United States v.
Arriaga, 70 M.J. 51, 56 (C.A.A.F. 2011) (citing Moreno,
63 M.J. at 135).
52a
A presumption of unreasonable delay arises when
appellate review is not completed, and a decision is
not rendered within 18 months of the case being
docketed. Moreno, 63 M.J. at 142. A presumptively
unreasonable delay triggers an analysis of the four
factors set forth in Barker v. Wingo, 407 U.S. 514, 530
(1972): “(1) the length of the delay; (2) the reasons for
the delay; (3) the appellant’s assertion of the right to
timely review and appeal; and (4) prejudice.” Moreno,
63 M.J. at 135 (additional citations omitted). Moreno
identified three types of prejudice arising from posttrial 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. Id. at 138–39
(citations omitted).
“We analyze each factor and make a determination
as to whether that factor favors the Government or
the [A]ppellant.” Id. at 136 (citation omitted). Then,
we balance our analysis of the factors to determine
whether a due process violation occurred. Id. (citing
Barker, 407 U.S. at 533 (“Courts must still engage in
a difficult and sensitive balancing process.”)). “No
single factor is required for finding a due process
violation and the absence of a given factor will not
prevent such a finding.” Id. (citation omitted).
However, where an appellant has not shown prejudice
from the delay, there is no due process violation unless
the delay is so egregious as to “adversely affect the
public’s perception of the fairness and integrity of the
military justice system.” Toohey, 63 M.J. at 362.
“[A] Court of Criminal Appeals has authority
under Article 66[, UCMJ, 10 U.S.C. § 866,] to grant
relief for excessive post-trial delay without a showing
of ‘actual prejudice’ within the meaning of Article
53a
59(a), [UCMJ, 10 U.S.C. § 859(a),] if it deems relief
appropriate under the circumstances.” Tardif, 57 M.J.
at 224 (citation omitted).
The following factors are to be considered to
determine if relief under Tardif is appropriate:
1. How long did the delay exceed the standards
set forth in [Moreno]?
2. What reasons, if any, has the government set
forth for the delay? Is there any evidence of bad
faith or gross indifference to the overall posttrial 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?
United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim.
App. 2015) (citations omitted), aff’d, 75 M.J. 264
(C.A.A.F. 2016). In consideration of the above factors,
“no single factor [is] dispositive, and a given case may
reveal other appropriate considerations for this court
54a
in deciding whether post-trial delay has rendered an
appellant’s sentence inappropriate.” Id. (footnote
omitted).
2. Analysis
Appellant’s case was docketed with the court on 8
June 2023. The delay in rendering this decision after
8 December 2024 is presumptively unreasonable. The
reasons for the delay include the time required for
Appellant to file his brief on 13 August 2024, the
Government to file its answer on 15 October 2024, and
Appellant to file his reply brief on 22 October 2024. 10
Appellant has made no specific assertion of the right
to timely appellate review, nor claim of prejudice on
this issue, and we find none. Because we find no
particularized prejudice, and the delay is not so
egregious as to adversely affect the public’s perception
of the fairness and integrity of the military justice
system, there is no due process violation. See id.
We also conclude there is no basis for relief under
Article 66(d)(2), UCMJ, or Tardif, in the absence of a
due process violation. See Gay, 74 M.J. at 744.
Considering all the facts and circumstances of
Appellant’s case, we decline to exercise our Article
66(d), UCMJ, authority to grant relief for the delay in
completing appellate review.
10 Appellant filed 12 motions for enlargement of time (the last
enlargement request was for 12 days), all of which were opposed
by the Government. Appellant’s claim of ineffective assistance of
counsel led the Government to request an order for defense
counsel declarations, which we granted. In conjunction with their
motion for defense counsel declarations, the Government also
filed a motion for an enlargement of time, which we granted.
55a
III. CONCLUSION
The findings and the sentence are correct in law
and fact, and no error materially prejudicial to the
substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and the sentence are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
56a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
USCA Dkt. No. 24-0111/AF
Appellee Crim.App. No. 40360
v.
ORDER
Matthew H.
Denney,
Appellant
On further consideration of the granted issues, 84
M.J. 342 (C.A.A.F. 2024), and in view of United States
v. Johnson, __ M.J. __ (C.A.A.F. 2025), it is, by the
Court, this 22nd day of July, 2025,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Blyth)
Appellate Government Counsel (Payne)
57a
U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
No. ACM 40360
________________________
UNITED STATES
Appellee
v.
Matthew R. DENNEY
Master Sergeant (E-7), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary 1
Decided 8 March 2024
________________________
Military Judge: Dayle P. Percle.
Sentence: Sentence adjudged 7 July 2022 by GCM
convened at Shaw Air Force Base, South
Carolina. Sentence entered by military judge on
22 August 2022: confinement for 12 months and
reduction to E-4.
For Appellant: Major Matthew L. Blyth, USAF.
Appellant appeals his conviction under Article 66(b)(1)(A),
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866(b)(1)(A), Manual for Courts-Martial, United States (2019
ed.) (2019 MCM), having been sentenced to more than six
months’ confinement.
1
58a
For Appellee: Colonel Steven R. Kaufman, USAF;
Lieutenant Colonel J. Peter Ferrell, USAF; Major
Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire.
Before
RICHARDSON,
DOUGLAS,
WARREN, Appellate Military Judges.
and
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
PER CURIAM:
A military judge sitting as a general court-martial
convicted Appellant, in accordance with his pleas and
pursuant to a plea agreement, of one specification of
distribution of child pornography in violation of
Article 134, Uniform of Code Military Justice (UCMJ),
10 U.S.C. § 934.2 After accepting Appellant’s plea, the
military judge sentenced Appellant to confinement for
12 months, reduction to the grade of E-4, and a
reprimand. The convening authority disapproved the
reprimand and, in accordance with the plea
agreement, waived automatic forfeitures for six
months.
Appellant raises one issue: whether as applied to
this case, reference to 18 U.S.C. § 922 in the staff
judge advocate’s indorsement to the entry of judgment
is unconstitutional because the Government cannot
demonstrate that barring his possession of firearms is
“consistent with the nation’s historical tradition of
2 All references to the UCMJ are to the 2019 MCM.
59a
firearm regulation”3 when he stands convicted of
distribution of child pornography. We have carefully
considered this issue, and find no discussion or relief
is warranted. See United States v. Guinn, 81 M.J. 195,
204 (C.A.A.F. 2021) (citing United States v. Matias, 25
M.J. 356 (C.M.A. 1987)).
The findings and sentence as entered are correct in
law and fact, and no error materially prejudicial to
Appellant’s substantial rights occurred. Articles 59(a)
and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and sentence are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
3 Citing N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111,
2130 (2022).
60a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
USCA Dkt. No. 24-0219/AF
Appellee Crim.App. No. 40464
v.
ORDER
Brian W.
Gubicza,
Appellant
On further consideration of the granted issue, 85
M.J. 186 (C.A.A.F. 2024), and in view of United States
v. Johnson, __ M.J. __ (C.A.A.F. 2025), it is, by the
Court, this 22nd day of July, 2025,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Golseth)
Appellate Government Counsel (Payne)
61a
U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
No. ACM 40464
________________________
UNITED STATES
Appellee
v.
Brian W. GUBICZA
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 2 July 2024
________________________
Military Judge: Colin P. Eichenberger; Dayle P.
Percle (entry of judgment).
Sentence: Sentence adjudged 23 January 2023 by
GCM convened at Beale Air Force Base,
California. Sentence entered by military judge on
16
March 2023:
Dishonorable discharge,
confinement for 36 months, reduction to E-1, and
a reprimand.
For Appellant: Major Samantha P. Golseth,
USAF.
For Appellee: Lieutenant Colonel J. Peter Ferrell,
USAF; Major Olivia B. Hoff, USAF; First
62a
Lieutenant Deyana F. Unis, USAF; Mary Ellen
Payne, Esquire.
Before ANNEXSTAD, DOUGLAS, and MASON,
Appellate Military Judges.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
PER CURIAM:
A military judge sitting as a general court-martial
convicted Appellant, in accordance with his pleas and
pursuant to a plea agreement, of one specification of
wrongful possession of child pornography and one
specification of wrongful distribution of child
pornography in violation of Article 134, Uniform of
Code Military Justice (UCMJ), 10 U.S.C. § 934.1 The
military judge sentenced Appellant to a dishonorable
discharge, confinement for 36 months, reduction to
the grade of E-1, and a reprimand. The convening
authority took no action on the findings but deferred
all automatic forfeitures until the military judge
signed the entry of judgment, and waived automatic
forfeitures for six months.
Appellant raises one issue on appeal: whether as
applied to this case, reference to 18 U.S.C. § 922 in the
staff judge advocate’s indorsement to the entry of
judgment is unconstitutional because the Government
cannot demonstrate that barring his possession of
All references to the UCMJ are to the Manual for CourtsMartial, United States (2019 ed.).
1
63a
firearms is “consistent with the nation’s historical
tradition of firearm regulation”2 when he stands
convicted of possession and distribution of child
pornography. We have carefully considered this issue
and find Appellant is not entitled to relief. See United
States v. Lepore, 81 M.J. 759, 763 (A.F. Ct. Crim. App.
2021) (en banc) (holding a Court of Criminal Appeals
lacks the authority to direct modification of the 18
U.S.C. § 922(g) prohibition noted on the staff judge
advocate’s indorsement); see also United States v.
Vanzant, __ M.J. __, No. ACM 22004, 2024 CCA
LEXIS 215, at *24 (A.F. Ct. Crim. App. 28 May 2024)
(concluding “[t]he firearms prohibition remains a
collateral consequence of the conviction, rather than
an element of findings or sentence, and is therefore
beyond our authority to review”).
The findings and sentence as entered are correct in
law and fact, and no error materially prejudicial to
Appellant’s substantial rights occurred. Articles 59(a)
and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and sentence are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
2 Citing N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111,
2130 (2022).
64a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
USCA Dkt. No. 24-0235/AF
Appellee Crim.App. No. 40481
v.
ORDER
Kris A.
Hollenback,
Appellant
On further consideration of the granted issues, __
M.J. __ (Daily Journal January 8, 2025), and in view
of United States v. Johnson, __ M.J. __ (C.A.A.F.
2025), it is, by the Court, this 22nd day of July, 2025,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Castanien)
Appellate Government Counsel (Payne)
65a
U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
No. ACM 40481
________________________
UNITED STATES
Appellee
v.
Kris A. HOLLENBACK
Major (O-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 2 August 2024
________________________
Military Judge: Thomas A. Smith.
Sentence: Sentence adjudged 31 January 2023 by
GCM convened at Minot Air Force Base, North
Dakota. Sentence entered by military judge on 28
March 2023: Dismissal and confinement for 3
years.
For Appellant: Major Spencer R. Nelson, USAF.
For Appellee: Lieutenant Colonel J. Pete Ferrell,
USAF; Major Brittany M. Speirs, USAF; Captain
Kate E. Lee, USAF; Mary Ellen Payne, Esquire.
Before: JOHNSON, ANNEXSTAD, and GRUEN,
Appellate Military Judges.
66a
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
PER CURIAM:
A military judge sitting as a general court-martial
convicted Appellant, in accordance with his pleas and
pursuant to a plea agreement, of one specification of
wrongful possession of child pornography and one
specification of wrongful viewing of child pornography
in violation of Article 134, Uniform of Code Military
Justice (UCMJ), 10 U.S.C. § 934.1 The military judge
sentenced Appellant to a dismissal and three years’
confinement. The convening authority took no action
on the findings or the adjudged sentence. Further, the
convening authority waived automatic forfeitures for
six months for the benefit of Appellant’s two
dependent children.
Appellant raises one issue on appeal: whether as
applied to Appellant, reference to 18 U.S.C. § 922 in
the Statement of Trial Results and entry of judgment
is unconstitutional where the Government cannot
demonstrate that barring his possession of firearms is
constitutional2 when he was not convicted of a violent
offense.3
All references to the UCMJ are to the Manual for CourtsMartial, United States (2019 ed.).
1
2 Citing N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111,
2130 (2022).
Appellant personally raised this issue pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
67a
After carefully considering this issue and for the
reasons explained in United States v. Vanzant, __ M.J.
__, No. ACM 22004, 2024 CCA LEXIS 215, at *24 (A.F.
Ct. Crim. App. 28 May 2024), and United States v.
Lepore, 81 M.J. 759, 763 (A.F. Ct. Crim. App. 2021)
(en banc), we find Appellant is not entitled to relief.
The findings and sentence as entered are correct in
law and fact, and no error materially prejudicial to
Appellant’s substantial rights occurred. Articles 59(a)
and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and sentence are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
68a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
USCA Dkt. No. 24-0106/AF
Appellee Crim.App. No. 40310
v.
ORDER
DeQuayjan D.
Jackson,
Appellant
On further consideration of the granted issues, 85
M.J. 91 (C.A.A.F. 2024), and in view of United States
v. Johnson, __ M.J. __ (C.A.A.F. 2025), it is, by the
Court, this 22nd day of July, 2025,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Nelson)
Appellate Government Counsel (Payne)
69a
U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
No. ACM 40310
________________________
UNITED STATES
Appellee
v.
DeQuayjan D. JACKSON
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 11 January 2024
________________________
Military Judge: Shad R. Kidd.
Sentence: Sentence adjudged 15 March 2022 by
GCM convened at Tinker Air Force Base,
Oklahoma. Sentence entered by military judge on
18
April
2022:
Bad-conduct
discharge,
confinement for 350 days, forfeiture of all pay and
allowances, reduction to E-1, and a reprimand.
For Appellant: Major Spencer R. Nelson, USAF.
For Appellee: Colonel Naomi P. Dennis, USAF;
Lieutenant Colonel Thomas J. Alford, USAF;
Captain Olivia B. Hoff, USAF; Mary Ellen Payne,
Esquire.
70a
Before
RICHARDSON,
CADOTTE,
MERRIAM, Appellate Military Judges.
and
Judge MERRIAM delivered the opinion of the
court, in which Senior Judge RICHARDSON and
Senior Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
MERRIAM, Judge:
A general court-martial composed of a military
judge sitting alone convicted Appellant, in accordance
with her pleas and pursuant to a plea agreement,1 of
one specification of failing to obey a lawful general
regulation, in violation of Article 92, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 892,2 and one
specification of wrongful distribution of marijuana,
one specification of wrongful distribution of cocaine,
one specification of wrongful distribution of
Among other provisions in her plea agreement, Appellant
agreed that a bad-conduct discharge “must” be adjudged, that a
minimum total of 205 days and maximum total of 490 days of
confinement for all specifications of which she was convicted
“must” be adjudged, and that a reprimand, rank reduction, and
forfeiture of all pay allowances “may” be adjudged. Additionally,
the plea agreement stated that a dishonorable discharge “may
not” be adjudged and further required that five additional
specifications to which Appellant pleaded not guilty be dismissed
with prejudice after announcement of sentence.
1
2 All references in this opinion to the UCMJ, the Military Rules
of Evidence, and the Rules for Courts-Martial (R.C.M.) are to the
Manual for Courts-Martial, United States (2019 ed.).
71a
alprazolam (a Schedule IV controlled substance), one
specification of wrongfully aiding others’ manufacture
of cocaine, and one specification of wrongfully aiding
others’ distribution of cocaine, in violation of Article
112a, UCMJ, 10 U.S.C. § 912a. The adjudged sentence
was a bad-conduct discharge, confinement for 350
days,3 forfeiture of all pay and allowances, reduction
to the grade of E-1, and a reprimand.
Appellant raises three issues on appeal: (1)
whether the military judge erred when he admitted
uncharged misconduct under the “continuous course
of conduct doctrine” during the pre-sentencing
hearing; (2) whether the firearms prohibition in 18
U.S.C. § 922 referenced in the staff judge advocate’s
indorsement to the Statement of Trial Results is
constitutional when Appellant was convicted of nonviolent offenses; and (3) whether Appellant’s sentence
is inappropriately severe.4
Finding no error materially prejudicial to
Appellant’s substantial rights, we affirm the findings
and sentence.
I. BACKGROUND
Over a few months in the summer and fall of 2021,
Appellant distributed cocaine, alprazolam (commonly
known by the brand name Xanax), and marijuana.
Most, if not all, of this illegal distribution of controlled
Appellant received 10 days for violation of the Article 92,
UCMJ, specification, and 45 days, 75 days, 50 days, 90 days, and
80 days, respectively, for violation of the five Article 112a, UCMJ,
specifications, with each period of confinement to run
consecutively.
3
4 Appellant raises this third issue pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
72a
substances was on behalf of, or in association with,
members of the criminal gang known as the Crips.
Appellant’s distribution of marijuana was to
another active duty Airman, Airman First Class (A1C)
JJ. This “hand to hand” transaction occurred in the
public parking lot of an off-base hospital while A1C JJ
was in uniform standing outside Appellant’s car. On
another occasion Appellant sold 40 tablets of
alprazolam to A1C JJ.
On approximately 25 occasions, Appellant drove
gang members in her car to various locations for the
purpose of selling cocaine. Appellant also aided gang
members’ manufacture of their cocaine product by
permitting gang members to “cook” the cocaine in her
off-base residence, using her microwave, kitchen
utensils, and water.
Though Appellant was not a member of the Crips,
she associated with several members on a regular
basis, allowed them to use her home, frequently
“threw” (displayed with her hands) gang signs
associated with the Crips as a “sign of respect” to the
gang members, assisted their criminal drug-selling
enterprise on dozens of occasions, and on at least one
occasion suggested to gang members that they make
the aforementioned sale of alprazolam to A1C JJ.
II. DISCUSSION
A. Continuous Course of Conduct
1. Additional Background
During the pre-sentencing hearing following
acceptance of Appellant’s guilty pleas, trial counsel
moved to admit Prosecution Exhibit 4, a disc
containing two video clips from law enforcement’s
interview of Appellant as matters in aggravation.
73a
One of the video clips (Clip One) was two minutes
and thirty-one seconds in length. The military judge
admitted Clip One over trial defense counsel’s
objection, but Appellant does not now assert this was
error and Clip One is not addressed further here. The
second video clip (Clip Two) was four minutes and
forty-six seconds long. In Clip Two, Appellant
described to law enforcement agents how she was the
“middle man” for a sale of alprazolam “bars” to Mr. D
at the intersection of “15th Street and High Avenue.”
Appellant told law enforcement that Mr. D had asked
her for “pain pills,” that she did not have any, and that
she then approached a gang member to provide some
that she could sell to Mr. D. Appellant continued to
tell law enforcement that Mr. D called a gang member,
who then provided two alprazolam tablets to
Appellant, which she then sold to Mr. D for $20.00 and
gave the money to the gang member. She told law
enforcement she made the transaction in August or
late July of 2021.
Trial defense counsel objected to Clip Two on Mil.
R. Evid. 403 grounds, and further argued that the
uncharged sale of alprazolam to which Appellant
confessed in Clip Two was not proper evidence in
aggravation because the misconduct discussed was
not directly resulting from or directly related to the
offenses of which Appellant had been convicted, but
was rather improper propensity evidence. Trial
counsel agreed Clip Two was uncharged misconduct,
but argued it was a “continuous course of conduct from
[Appellant]” with regard to selling alprazolam. Trial
counsel argued that it was close in time to the
wrongful distribution of approximately 40 tablets of
alprazolam of which Appellant had just been
convicted and was part of a continuous course of
74a
conduct in selling illegal drugs. Trial counsel stated
the evidence was not offered under Mil. R. Evid.
404(b), but strictly as aggravating evidence under
Rule for Courts-Martial (R.C.M.) 1001(b)(4).
The military judge determined Clip Two was
admissible aggravation evidence under R.C.M.
1001(b)(4). The military judge noted Appellant had
pleaded guilty to distribution of cocaine to Mr. D and
of distribution of alprazolam to A1C JJ and that the
uncharged misconduct referenced in Clip Two was “in
the charged time frame.” The military judge found
that this case was similar to “a number of cases”
where an accused pleaded guilty to some instances of
misconduct and additional instances of the same or
similar type of misconduct were held to be admissible
under R.C.M. 1001(b)(4) because the aggravation
evidence was part of a continuous course of conduct.
The military judge determined that Clip Two provided
“context to understand the overall course of conduct,”
and that the probative value of the evidence was not
substantially outweighed by the danger of unfair
prejudice. Regarding this Mil. R. Evid. 403 analysis,
the military judge found that the danger of unfair
prejudice was significantly mitigated by the fact that
it was a judge-alone case, that he was aware Appellant
could “only be sentenced for the crimes for which she
has been accused,” and that he would not consider the
evidence for propensity purposes.
2. Law
This court reviews a military judge’s admission or
exclusion of evidence, including sentencing evidence,
for an abuse of discretion. United States v. Carter, 74
M.J. 204, 206 (C.A.A.F. 2015) (citation omitted);
United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F.
75a
2009) (citations omitted). A military judge abuses
their discretion when their legal findings are
erroneous or when they make a clearly erroneous
finding of fact. Id. (citations omitted). To be
overturned on appeal, the military judge’s ruling must
be “arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.” United States v. Taylor, 53 M.J. 195, 199
(C.A.A.F. 2000) (internal quotation marks omitted)
(citing United States v. Travers, 25 M.J. 61, 62 (C.M.A.
1987)). For a ruling to be an abuse of discretion, it
must be more than a mere difference of opinion.
United States v. Brown, 72 M.J. 359, 362 (C.A.A.F.
2013) (citing United States v. Collier, 67 M.J. 347, 353
(C.A.A.F. 2009)).
“[A]dmission of aggravation evidence necessarily
involves a contextual judgment.” United States v.
Moore, 68 M.J. 491 (C.A.A.F. 2010) (mem.) (citations
omitted); see also United States v. McCrary, 2013 CCA
LEXIS 387, *12 (A.F. Ct. Crim. App. 7 May 2013)
(unpub. op.) (uncharged misconduct can be admitted
as aggravation evidence, which may be used to
“inform the sentencing authority’s judgment
regarding the charged offense and put[ ] that offense
in context”).
Article 56(c)(1), UCMJ, 10 U.S.C. § 856(c)(1),
states:
In sentencing an accused under [Article 53,
UCMJ, 10 U.S.C. § 853], a court-martial 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, taking into consideration—(A)
the nature and circumstances of the offense and
the history and characteristics of the accused;
76a
(B) the impact of the offense on—(i) the
financial, social, psychological, or medical wellbeing of any victim of the offense; and (ii) the
mission, discipline, or efficiency of the
command of the accused and any victim of the
offense; [and] (C) the need for the sentence—(i)
to reflect the seriousness of the offense; (ii) to
promote respect for the law; (iii) to provide just
punishment for the offense; (iv) to promote
adequate deterrence of misconduct; (v) to
protect others from further crimes by the
accused; (vi) to rehabilitate the accused; and
(vii) to provide, in appropriate cases, the
opportunity for retraining and return to duty to
meet the needs of the service[.]
R.C.M. 1001(b)(4) states:
Trial counsel may present evidence as to any
aggravating circumstances directly relating to
or resulting from the offenses of which the
accused has been found guilty. Evidence in
aggravation includes, but is not limited to,
evidence of financial, social, psychological, and
medical impact on or cost to any person or
entity who was the victim of an offense
committed by the accused and evidence of
significant adverse impact on the mission,
discipline, or efficiency of the command directly
and immediately resulting from the accused’s
offense.
“The meaning of ‘directly related’ under R.C.M.
1001(b)(4) is a function of both what evidence can be
considered and how strong a connection that evidence
must have to the offenses of which the accused has
been convicted.” United States v. Hardison, 64 M.J.
77a
279, 281 (C.A.A.F. 2007). Uncharged misconduct may
be directly related to the charged misconduct when
part of a “continuous course of conduct.” See, e.g.,
United States v. Shupe, 36 M.J. 431, 436 (C.M.A.
1993) (holding testimony about uncharged misconduct
was proper aggravation under R.C.M. 1001(b)(4),
because it showed “‘the continuous nature of the
charged conduct’” (quoting United States v. Ross, 34
M.J. 183, 187 (C.M.A. 1992))); Ross, 34 M.J. at 187
(stating “the continuous nature of the charged conduct
and its full impact on the military community are
proper aggravating circumstances”); United States v.
Mullens, 29 M.J. 398, 400 (C.M.A. 1990) (holding
admissible uncharged misconduct that consisted of “a
continuous course of conduct involving the same or
similar crimes, the same victims, and a similar situs”);
United States v. Silva, 21 M.J. 336, 337 (C.M.A. 1986)
(uncharged misconduct was admissible when it was
an “integral part of [the accused’s] criminal course of
conduct”).
Aggravation evidence admitted under R.C.M.
1001(b)(4) must also satisfy Mil. R. Evid. 403.
Hardison, 64 M.J. at 281. Under that rule, 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 members. 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 articulates his or
her reasoning on the record. United States v.
Humpherys, 57 M.J. 83, 91 (C.A.A.F. 2002) (citation
omitted). On the other hand, appellate courts “give[ ]
military judges less deference if they fail to articulate
their [Mil. R. Evid. 403] balancing analysis on the
78a
record, and no deference if they fail to conduct the
[Mil. R. Evid.] 403 balancing.” United States v. Manns,
54 M.J. 164, 166 (C.A.A.F. 2000) (citation omitted).
A military judge is assumed “to be able to
appropriately consider only relevant material in
assessing sentencing.” Hardison, 64 M.J. at 284
(citation omitted).
3. Analysis
Appellant contends the military judge improperly
admitted aggravation evidence through what
Appellant calls the “continuous course of conduct
doctrine,” under which uncharged misconduct may be
admitted during presentencing as evidence in
aggravation when the charged and uncharged
misconduct are part of a continuing course of conduct.
Appellant’s argument in support of this assignment of
error asserts several theories in the alternative: (1)
the United States Court of Appeals for the Armed
Forces (CAAF) implicitly overruled the continuous
course of conduct doctrine sub silentio in United States
v. Hardison; (2) the continuous course of conduct
doctrine conflicts with Article 56(c), UCMJ, 10 U.S.C.
§ 856(c), and/or R.C.M. 1001(b)(4); and (3) under the
circumstances of this case, the military judge
improperly applied the doctrine when he admitted
uncharged misconduct under R.C.M. 1001(b)(4)
during the pre-sentencing hearing.
We reject Appellant’s characterization of the
CAAF’s decision in Hardison, 64 M.J. at 281–83, as
constituting a sub silentio overturning of its prior
decisions that a continuous course of conduct can
demonstrate uncharged misconduct is “directly
related” to the charged offenses under R.C.M.
1001(b)(4). In Hardison, the CAAF did not implicitly
79a
overturn its prior precedent; it explicitly embraced it.5
In determining that pre-service drug use was not
“directly related” to the charged misconduct, the
CAAF cited positively two prior cases—Shupe, 36 M.J.
431, and Mullens, 29 M.J. 398—in which the CAAF
and its predecessor, the Court of Military Appeals
(CMA), found that a continuous course of conduct
meant the uncharged misconduct was directly related
to the charged offenses and thus admissible under
R.C.M. 1001(b)(4). Hardison, 64 M.J. at 282. In Shupe,
the appellant had confessed during the plea
providence inquiry to one wrongful distribution of ten
doses of LSD. 36 M.J. at 436. The CMA upheld
admission of aggravation evidence that the appellant
had engaged in five additional transactions totaling
180–200 doses of LSD to “numerous buyers” over
several months because the five uncharged instances
of drug distribution were “not isolated” from the single
distribution to which the appellant had pleaded
guilty, but rather were part of a single “extensive and
continuing scheme to introduce and sell [drugs].” 36
M.J. at 436. And in Hardison, the CAAF explicitly
observed that “[t]he ‘continuous nature of the charged
conduct’ was important to our conclusion” in Shupe.
64 M.J. at 282 (emphasis added) (quoting Shupe, 36
M.J. at 436). Appellant further contends the CAAF did
not apply the continuous course of conduct doctrine in
Hardison. In fact, the CAAF did evaluate whether
there was a continuous course of conduct similar to
Shupe and Mullens and simply concluded “[t]here was
no similar connection here.” 64 M.J. at 282.
We also note the CAAF has instructed that “‘overruling by
implication is disfavored.’” United States v. Tovarchavez, 78 M.J.
459, 465 (C.A.A.F. 2019) (quoting United States v. Pack, 65 M.J.
381, 383 (C.A.A.F. 2007)) (additional citation omitted).
5
80a
In light of our superior court’s explicit approval in
Hardison and prior cases of the continuous course of
conduct doctrine under R.C.M. 1001(b)(4), we decline
to find the doctrine conflicts with R.C.M. 1001(b)(4).
Appellant also argues that admitting uncharged
misconduct under the continuous course of conduct
doctrine is an “[a]textual [a]berration” that conflicts
with the plain language of Article 56(c), UCMJ.
Specifically, Appellant observes that Article 56(c),
UCMJ, repeatedly commands an accused be
sentenced for “the offense” and that admission of
uncharged misconduct violates that command.
Appellant acknowledges that “R.C.M. 1001(b)(4)
tracks closely with the language of Article 56,
[UCMJ]” but contends the language in R.C.M.
1001(b)(4) departs from Article 56, UCMJ, where it
allows that aggravation evidence may be “directly
relating to or resulting from the offense . . . .” The
implication of Appellant’s argument is that this
language in R.C.M. 1001(b)(4) conflicts with the plain
language of Article 56, UCMJ. We disagree. Article 56,
UCMJ, does indeed direct that an accused be
sentenced for their offenses, but the R.C.M. 1001(b)(4)
command that aggravation evidence be directly
related to or resulting from the offenses of which the
accused is convicted is consistent with the language in
Article 56, UCMJ, specifically that the accused be
punished based on “the nature and circumstances of
the offense and the history and characteristics of the
accused” and the “seriousness of the offense.”6
6 We also note the inclusion in R.C.M. 1001(b)(4) of this type of
aggravation evidence was in effect when Congress recently
enacted the current version of Article 56, UCMJ, as part of the
Military Justice Act of 2016. See National Defense Authorization
Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5301, 130 Stat.
81a
Likewise, admitting uncharged misconduct that is
directly related to the offense when the charged and
uncharged misconduct are part of a continuing course
of conduct is consistent with the Article 56, UCMJ,
command that punishment be based on “the nature
and circumstances of the offense.”
Appellant further contends that even if the
continuous course of conduct doctrine is not
inconsistent with Article 56, UCMJ, or R.C.M.
1001(b)(4), and has not been overruled by the CAAF,
the military judge improperly applied the doctrine to
admit uncharged misconduct under the circumstances
of this case. Appellant contends it was error to admit
the uncharged misconduct because (1) the uncharged
misconduct was remote in time to the charged
conduct; (2) the uncharged misconduct involved a
different person; and (3) the uncharged misconduct
exceeded the plain language of the charge. We are
unpersuaded.
First, we find the uncharged misconduct detailed
in Clip Two was not remote in time to the charged
misconduct. It occurred within, or very near, the
charged timeframe of “between on or about 1 August
2021 and on or about 5 October 2021.” In Clip Two,
Appellant asserted she sold the alprazolam to Mr. D
in “August, late July.” That transaction was
somewhat removed from the late September
alprazolam distribution that Appellant detailed
during her guilty-plea inquiry, but no more remote
2000, 2919–21 (2016). The “new” Article 56 did not circumscribe
aggravation
evidence
as
an
appropriate
sentencing
consideration. See United States v. Tyler, 81 M.J. 108, 113
(C.A.A.F. 2021) (citations omitted) (“We assume that Congress is
aware of existing law when it passes legislation.”).
82a
than the instances of uncharged misconduct upheld in
Shupe (where uncharged misconduct occurred weeks
to months apart from the charged misconduct), and
nowhere near as remote as the uncharged misconduct
rejected in Hardison (where uncharged misconduct
occurred three years earlier than charged
misconduct).
Appellant also contends admission of the
uncharged misconduct in this case was inappropriate
because it involved a different recipient of the illicit
drugs than the charged misconduct. Our superior
court has, in some cases, observed that the “victims”
of the charged and uncharged misconduct were the
same. See, e.g., United States v. Nourse, 55 M.J. 229,
232 (C.A.A.F. 2001); Mullens, 29 M.J. at 400. But the
CAAF has not required that aggravation evidence of
uncharged misconduct involve precisely the same
persons as the charged misconduct to be admissible
under R.C.M. 1001(b)(4). In fact, as the CMA
expressly noted in Shupe, the aggravation evidence of
additional misconduct involved sales of lysergic acid
diethylamide (LSD) to “numerous buyers.” 36 M.J. at
436. In Ross, the CMA upheld admission of
aggravation evidence showing the appellant altered
dozens of enlistment aptitude tests (i.e., different
persons’ tests) even though he pleaded guilty to
altering only four. 34 M.J. at 187. Here, the uncharged
misconduct involved sale of two tablets of alprazolam,
the same drug Appellant had just pleaded guilty to
selling. The uncharged sale was not to the same buyer
of the charged alprazolam distribution, but was to Mr.
D, to whom Appellant had just admitted selling a
different drug, and the sale occurred at the same
location where the charged sale of cocaine to Mr. D
took place. Under the circumstances of this case, the
83a
fact that the buyer of the uncharged distribution of
alprazolam was different than the buyer in the
charged distribution of alprazolam does not remove
the uncharged distribution from the scope of a
“directly related” offense.
Finally, Appellant asserts “any uncharged
misconduct relating to selling additional [alprazolam]
pills was not ‘resulting from’ or ‘directly relating’ to
‘the offense’ because it goes above and beyond the
charge itself.” Appellant’s contention that the
uncharged misconduct “exceeded the plain language
of the charge” amounts to a redundant assertion that
the uncharged misconduct is, in fact, uncharged
misconduct. The Government does not argue to the
contrary and we find this assertion requires no further
analysis.
The military judge’s findings of fact are supported
by the evidence and his application of the correct legal
principles was not clearly unreasonable. Though the
military judge did not cite specific cases by name when
he ruled in favor of admitting Clip Two under R.C.M.
1001(b)(4), he described our superior court’s precedent
regarding a “continuous course of conduct” in Ross, 34
M.J. at 187, described supra, and Shupe, 36 M.J. at
436. In Shupe, the CMA noted the aggravation
evidence established the conduct to which the
appellant pleaded guilty was not isolated but part of
“an extensive and continuing scheme” to sell illegal
drugs. 36 M.J. at 436. The same can be said of the
uncharged misconduct in this case. We conclude the
military judge did not abuse his discretion in
admitting Clip Two as uncharged misconduct under
R.C.M. 1001(b)(4) or in determining the evidence
satisfied Mil. R. Evid. 403.
84a
B. Firearms Prohibition
The staff judge advocate’s indorsement to the
Statement of Trial Results indicates Appellant’s
conviction triggered a “[f]irearm [p]rohibition” under
18 U.S.C. § 922. Appellant asks this court to assess
whether 18 U.S.C. § 922 is constitutional when the
triggering offenses were non-violent. We decline to
undertake such an assessment in this case. In
reviewing appeals under Article 66(b)(3), UCMJ, 10
U.S.C. § 866(b)(3), this court “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). This court held in United States v. Lepore,
81 M.J. 759, 763 (A.F. Ct. Crim. App. 2021) (en banc),
the 18 U.S.C. § 922 firearm prohibition was not a
finding or part of the sentence; accordingly this court
lacks authority under Article 66, UCMJ, to direct
modification of that portion of the staff judge
advocate’s indorsement to the Statement of Trial
Results. We do not read United States v. Lemire, 82
M.J. 263 n* (C.A.A.F. 2022) (unpub. op.), to provide a
basis to consider Appellant’s claim, as Appellant
suggests, when in that case the CAAF merely directed
the court-martial promulgating order “be corrected.”
C. Sentence Severity
1. Law
We review issues of sentence appropriateness de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F.
2006) (footnote omitted).
This court “may affirm only . . . the sentence or
such part or amount of the sentence, as [it] finds
correct in law and fact and determines, on the basis of
the entire record, should be approved.” Article
66(d)(1),
UCMJ.
Courts
“assess
sentence
85a
appropriateness by considering the particular
appellant, the nature and seriousness of the
offense[s], the appellant’s record of service, and all
matters contained in the record of trial.” United States
v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015)
(en banc) (per curiam) (alteration in original) (citation
omitted). Although this court has broad discretion in
determining whether a particular sentence is
appropriate, and Article 66, UCMJ, empowers us to
“do justice,” we have no authority to “grant mercy” by
engaging in exercises of clemency. United States v.
Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation
omitted).
A plea agreement with the convening authority is
“some indication of the fairness and appropriateness
of [an appellant’s] sentence.” United States v. Perez,
No. ACM S32637 (f rev), 2021 CCA LEXIS 501, at *7
(A.F. Ct. Crim. App. 28 Sep. 2021) (unpub. op.)
(footnote omitted); see also United States v. Fields, 74
M.J. 619, 625 (A.F. Ct. Crim. App. 2015) (an
“accused’s own sentence proposal is a reasonable
indication of its probable fairness to him” (citations
omitted)).
2. Analysis
Appellant’s claim that her sentence is
inappropriately severe rests primarily on her
assertion of prior traumas in her life and the fact that
she deployed to the Middle East. Appellant does not
detail which aspect(s) of her sentence are
inappropriately severe, but instead suggests that
based on this “strong evidence in mitigation and
extenuation,” this court should “reduce her sentence.”
Under the specific facts of this case, Appellant’s
86a
arguments for a reduced sentence are more a request
for clemency than an appeal of sentence severity.
In her plea agreement, Appellant agreed that a
bad-conduct discharge “must” be adjudged, that a
minimum of 205 days and maximum of 490 days of
confinement “must” be adjudged, and that a
reprimand, rank reduction, and forfeiture of all pay
allowances “may” be adjudged. Having enjoyed the
benefits of her plea agreement, including a cap on
confinement and the withdrawal and dismissal with
prejudice of multiple specifications, Appellant now
seeks to convince us the punishment she received,
which is well within the range of punishment to which
she agreed in her plea agreement, is “inappropriately
severe.” We are not convinced.
Appellant was convicted of committing numerous
drug crimes on behalf of, and in active participation
with, a criminal gang. Two of these drug distributions
were to an active-duty Air Force member, and one
occurred in public view while that Airman was in
uniform. After carefully considering Appellant, the
nature and seriousness of the offenses, the
particularized extenuating and mitigating evidence,
and all the other matters in the record of trial, we
conclude Appellant’s sentence is not inappropriately
severe.
III. CONCLUSION
The findings and sentence as entered are correct in
law and fact, and no error materially prejudicial to the
substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
87a
Accordingly, the findings and the sentence are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
88a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
USCA Dkt. No. 24-0069/AF
Appellee Crim.App. No. 40135
v.
ORDER
Bradley D.
Lampkins,
Appellant
On further consideration of the granted issues, 84
M.J. 310 (C.A.A.F. 2024), and in view of United States
v. Johnson, __ M.J. __ (C.A.A.F. 2025), it is, by the
Court, this 22nd day of July, 2025,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Nelson)
Appellate Government Counsel (Payne)
89a
U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL A PPEALS
________________________
No. ACM 40135 (f rev)
________________________
UNITED STATES
Appellee
v.
Bradley D. LAMPKINS
Airman First Class (E-3), U.S. Air Force,
Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Upon Further Review
Decided 2 November 2023
________________________
Military Judge: Thomas J. Alford; Andrew R. Norton
(post-trial processing); Dayle P. Percle (remand).
Sentence: Sentence adjudged on 12 August 2020 by
GCM convened at Minot Air Force Base, North
Dakota. Sentence entered by military judge on 17
November 2020: Dishonorable discharge, confinement
for 46 months, reduction to E-1, and a reprimand.
For Appellant: Lieutenant Colonel Todd J. Fanniff,
USAF; Major Spencer R. Nelson, USAF.
90a
For Appellee: Major Morgan R. Christie, USAF; Major
John P. Patera, USAF; Major Brittany M. Speirs,
USAF; Mary Ellen Payne, Esquire.
Before ANNEXSTAD, GRUEN, and KEARLEY,
Appellate Military Judges.
Judge GRUEN delivered the opinion of the court, in
which Senior Judge ANNEXSTAD and Judge
KEARLEY joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
GRUEN, Judge:
This case is before us for a second time. A military
judge sitting as a general court-martial convicted
Appellant, consistent with his pleas, of one
specification of attempt to steal $9,999.00 (Charge I);
two specifications of larceny (Charge II); and 43
specifications of making, drawing, or uttering check,
draft, or order without sufficient funds (Charge III), in
violation of Articles 80, 121, and 123a, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 880, 921,
923a.1 The military judge sentenced Appellant to a
dishonorable discharge, confinement for 46 months,
1 Because Appellant was convicted of conduct spanning between
on or about 28 October 2018 and on or about 7 August 2019,
references in this opinion to the punitive articles of the UCMJ
are to both the Manual for Courts-Martial, United States (2016
ed.) and the Manual for Courts-Martial, United States (2019 ed.)
(2019 MCM). As charges were referred to trial after 1 January
2019, references to the Rules for Courts-Martial and all other
UCMJ references are to the 2019 MCM.
91a
reduction to the grade of E-1, and a reprimand.2 Upon
recommendation from the military judge, the
convening authority suspended all confinement in
excess of 24 months for a period of two years and one
month from the date of findings, 12 August 2020, at
which time the suspended confinement would be
remitted without further action unless the suspension
was sooner vacated.
Appellant initially raised four issues which we
have reworded: (1) whether Appellant is entitled to
relief due to a 353-day post-trial processing delay; (2)
whether the record of trial was incomplete; (3)
whether the military judge abused his discretion in
denying Appellant’s motion for appropriate relief for
illegal pretrial punishment; and (4) whether trial
counsel committed prosecutorial misconduct during
sentencing argument.
We agreed with Appellant with respect to issue (2).
On 25 October 2022, we remanded this case to the
Chief Trial Judge, Air Force Trial Judiciary, to correct
the record under Rule for Courts-Martial (R.C.M.)
1112(d) to resolve a substantial issue with the posttrial processing, insofar as the military judge’s ruling
on speedy trial was missing from the record of trial.
United States v. Lampkins, No. ACM 40135, 2020
CCA LEXIS 500, at *2–3 (A.F. Ct. Crim. App. 25 Oct.
2022) (order).3 Appellant’s record was re-docketed
with this court on 9 November 2022 and included the
missing ruling. Thus, we find the military judge’s
2 Appellant was awarded 363 days of pretrial confinement credit
against his sentence.
3 We note an error in the LEXIS cite in that our order was issued
on 25 October 2022, but the LEXIS cite incorrectly reflects 2020.
92a
correction of the record remedies the error identified
in our earlier order.
Subsequent to re-docketing, Appellant submitted
three additional issues, which we have reworded and
re-numbered: (5) whether the Government’s
submission of an incomplete record of trial tolls the
time period for presumptively unreasonable post-trial
delay under United States v. Moreno, 63 M.J. 129
(C.A.A.F. 2006); (6) whether Appellant is entitled to
special relief because the Government engaged in both
speedy trial violations and unreasonable post-trial
delay; and (7) whether the military judge’s analysis of
the factors in Barker v. Wingo, 407 U.S. 514 (1972),
addressing a speedy trial motion fully aligned with
that of United States v. Harrington, 81 M.J. 184
(C.A.A.F. 2021), recon. denied, 81 M.J. 322 (C.A.A.F.
2021)—a case decided after the military judge’s ruling
at trial.4
As to issue (5), we decline Appellant’s request to
find that over 800 days had elapsed between
announcement of the sentence and docketing his case
with this court. Here, the record establishes that
Appellant’s case was docketed at 353 days. We
consider the 353-day delay in our discussion of issue
(1) below.
We have carefully considered issue (7) and find no
discussion or relief is warranted. See United States v.
Guinn, 81 M.J. 195, 204 (C.A.A.F. 2021) (citing United
States v. Matias, 25 M.J. 356 (C.M.A. 1987)).
With regard to issue (1), for the reasons stated
below, we find remedy is appropriate to address the
4 Appellant personally raises issues (3), (4), and (7) pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
93a
excessive post-trial delay. In our decretal paragraph,
we affirm the findings of guilty and only so much of
the sentence that should be approved.
I. BACKGROUND
The charges in this case stem from a number of
fraudulent money transactions made by Appellant.
Appellant pleaded guilty to all three charges including
a total of 46 specifications. In the fall of 2018,
Appellant was 19 years old and received a monthly
pay of $1,931.10. He arrived at his first duty station
on 24 September 2018 and opened a bank account on
27 September 2018 with an initial deposit of $70.00.
On 28 October 2018, Appellant wrote the first of many
fraudulent checks, this one to the Army and Air Force
Exchange Service in the amount of $1,301.75 for the
purchase of a computer and card scanner. On 23
February 2019, Appellant stole a Ford F-350 from a
Minot, North Dakota, resident, the truck having a
value of $23,000.00. In June 2019 he stole $26,800.00
worth of items and services from a local vehiclerelated company. Finally, in August 2019, Appellant
wrote a check to his wife in the amount of $9,999.00
knowing he did not have the funds in his checking
account to cover said check.
II. DISCUSSION
A. Post-Trial Processing
1. Additional Background
On 10 August 2020, the military judge sentenced
Appellant, and on 19 October 2020, the court reporter
certified the record of trial “as accurate and complete”
in accordance with R.C.M. 1112(b) and R.C.M.
1112(c)(1). Appellant’s case was docketed with this
94a
court on 30 July 2021—353 days from the date he was
sentenced.
On 9 July 2021, trial counsel provided an affidavit
and case chronology explaining why it took the
Government 353 days to docket Appellant’s case with
this court.5 We have corrected the number of days
from sentencing to docketing and added information
from the record of trial detailing the post-trial
processing timeline in this case as set forth below.
Date
Event
9
December
2020
The base legal office 120
deposited the original
and four copies of the
record of trial with the
Traffic
Management
Office (TMO) for mail
delivery via FedEx. The
base legal office then
updated the Automated
Military
Justice
Analysis
and
Management
System
(AMJAMS)
reflecting
such
action,
which
caused the case to no
longer appear in the
open case reports.
The TMO lost one copy of 120-122
the record of trial
intended for the Air
Force Appellate Records
9–11
December
2020
Days
after
Sentence
Announcement
5 Appellant calculated a delay of 352 days—we have calculated a
delay of 353 days.
95a
Branch (JAJM), and
erroneously mailed the
original to Appellant’s
confinement facility. The
TMO mailed Appellant’s
copy, the remaining copy
intended for JAJM, and
the remaining copy to
the servicing legal office
for the general courtmartial
convening
authority
at
the
Numbered Air Force
(NAF).
11–18
The NAF received the
February records of trial and
2021
identified
missing
documents
and
extensive errors.
6
April The NAF returned all
2021
the records of trial to the
base legal office for
correction.
9
April The noncommissioned
2021
officer
in
charge
(NCOIC) maintained the
NAF’s copy of the record
of trial. The other
records of trial were in a
sealed box placed inside
a cubicle of the case
paralegal who already
had
permanently
changed duty stations.
21 June A
newly
assigned
2021
paralegal who began
working in the abovementioned
cubicle
discovered the box of
184-191
238
241
315
96a
5–6 July
2021
7
July
2021
8–9 July
2021
30
July
2021
records of trial in
Appellant’s case, and
gave them to the NCOIC
of the military justice
section. The NCOIC
indicated
that
processing those copies
of the record of trial was
no longer time sensitive
because Moreno had
tolled.
The NCOIC inspected
the records of trial and
realized the original
record was among them.
The
NCOIC
began
correcting the identified
errors.
The base legal office
determined all missing
documents had been
obtained for inclusion in
the record of trial.
Another copy of the
record of trial was
created to replace the
one lost in December
2020. The original and
three copies were all
corrected and provided
to TMO for distribution.
JAJM
received
the
original record of trial.
328-329
330
331-332
353
2. Law
As a matter of law, this court reviews whether
claims of excessive post-trial delay resulted in a due
97a
process6 violation. United States v. Anderson, 82 M.J.
82, 86 (C.A.A.F. 2022). Even if we do not find a due
process violation, we may nonetheless grant
Appellant relief for excessive post-trial delay under
our broad authority to determine sentence
appropriateness pursuant Article 66(d), UCMJ, 10
U.S.C. § 866(d). See United States v. Tardif, 57 M.J.
219, 225 (C.A.A.F. 2002).
“We review de novo claims that an appellant has
been denied the due process right to a speedy posttrial review and appeal.” Moreno, 63 M.J. at 135
(citations omitted). The United States Court of
Appeals for the Armed Forces (CAAF) in Moreno held
that a presumptive due process violation occurs under
any of the following circumstances: (1) the convening
authority takes action more than 120 days after
completion of trial; (2) the record of trial is docketed
by the service Court of Criminal Appeals (CCA) more
than 30 days after the convening authority’s action; or
(3) a CCA completes appellate review and renders its
decision more than 18 months after the case is
docketed with the court. Id. at 150. As Appellant’s
case was processed under new procedural rules, we
apply the 150-day aggregate standard threshold
announced in United States v. Livak, 80 M.J. 631, 633
(A.F. Ct. Crim. App. 2020). When docketing occurs
more than 150 days after sentencing, the delay is
presumptively unreasonable. “This 150-day threshold
appropriately protects an appellant’s due process
right to timely post-trial and appellate review and is
consistent with our superior court’s holding in
Moreno.” Id.
6 See U.S. CONST. amend. V.
98a
A case that does not meet the 150-day threshold
triggers an analysis of the four non-exclusive factors
set forth in Barker to assess whether Appellant’s due
process right to timely post-trial and appellate review
has been violated: “(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 (first citing United
States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); and
then citing Toohey v. United States, 60 M.J. 100, 102
(C.A.A.F. 2004) (per curiam)). Analyzing these factors
requires determining which factors favor the
Government or an appellant and then balancing these
factors. Moreno, 63 M.J. at 136. No single factor is
dispositive, and the absence of a given factor does not
prevent this court from finding a due process
violation. Id. When examining reasons for the delay
this court determines “how much of the delay was
under the Government’s control” and “assess[es] any
legitimate reasons for the delay.” United States v.
Anderson, 82 M.J. 82, 88 (C.A.A.F. 2022).
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. 63 M.J
at 138–39 (citations omitted). “The anxiety and
concern subfactor involves constitutionally cognizable
anxiety that arises from excessive delay,” and the
CAAF requires “an appellant to show particularized
anxiety or concern that is distinguishable from the
normal anxiety experienced by prisoners awaiting an
appellate decision.” Anderson, 82 M.J. at 87 (quoting
United States v. Toohey, 63 M.J. 353, 361 (C.A.A.F.
2006)).
99a
Furthermore, Article 66(d), UCMJ, authorizes this
court to grant relief for excessive post-trial delay even
in the absence of a due process violation. See Tardif,
57 M.J. at 225. In Tardif, the CAAF recognized “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].” Id. at 224
(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 a six-factor test to apply before granting
“sentence appropriateness” relief under Tardif and
Toohey, even in the absence of a due process violation:
1. How long did the delay exceed the standards
set forth in United States v. Moreno, 63 M.J.
129 (C.A.A.F. 2006)?
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
100a
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).
3. Analysis
Appellant contends that he is entitled to relief due
to a 353-day post-trial processing delay between the
day he was sentenced and the day his record of trial
was docketed with this court. Appellant claims that he
has suffered particularized anxiety and concern and is
therefore prejudiced because of this delay. He further
argues that a due process violation has occurred
because “the delay adversely affects the public
perception of the fairness and integrity of the military
justice system.” We agree the delay from sentencing
to docketing with this court was presumptively
unreasonable. While we do not find that the delay
prejudiced Appellant, we nevertheless find that relief
is appropriate to address the delay.
The Government delay in docketing Appellant’s
case with this court was 353 days—more than double
the 150-day threshold set in Livak. Therefore, there is
a facially unreasonable delay in post-trial processing.
We must now address whether a due process violation
has occurred, which requires analysis of the Barker
factors. The first factor of the Barker analysis—the
101a
length of the delay—weighs heavily in favor of
Appellant. Here, the delay was over 200 days past the
150-day threshold set forth by this court in Livak.
The second factor—the reasons for the delay—also
weighs in Appellant’s favor. The record shows the
Government failed on multiple levels during the posttrial processing of the record. Not only did the base
legal office responsible for moving the case postsentencing fail to send the correct copies of the record
to the NAF, the NAF took nearly two additional
months to identify errors and send the record back to
the base legal office for correction. We note a troubling
period during post-trial processing wherein for 77
days the record sat untouched, in a cubicle at the base
legal office. We find no good reasons were provided to
justify delay, and accordingly find that this factor
weighs in favor of Appellant.
With respect to the third factor—Appellant’s
assertion of the right to timely review and appeal—
Appellant asserted his right to timely appellate
review for the first time in his brief to this court. He
asserted this right a second time upon re-docketing.
No one factor is dispositive in the Barker analysis and
the primary responsibility for speedy processing rests
with the Government. Moreno, 63 M.J. at 136–37.
Thus, we find with respect to Appellant’s assertion of
the right to timely review and appeal, this factor
neither weighs in favor nor against Appellant’s
interests.
The final Barker factor addresses prejudice.
Appellant asserts he has suffered constitutionally
cognizable anxiety from the delay affecting him
“physically, mentally, socially, and hindered [his]
ability to move on with [his] life.” He claims his
102a
concern and anxiety is distinguishable from the
normal anxiety of an appeal because a medical doctor
has diagnosed him with depression and posttraumatic stress disorder. Appellant further claims
that the stress and anxiety have increased since he
was released from confinement because of the posttrial processing delay. He states the stress and
anxiety prevent him from sleeping without medication
and he has nightmares given he has not yet had
closure with his appeal. Additionally, he claims the
lack of finality of his appeal has prevented him from
applying for a service characterization upgrade or
medical benefits and caused him difficulty in applying
for employment. We do not agree with Appellant that
his concern and anxiety are distinguishable from the
normal concern and anxiety of an appeal and thus, we
do not find prejudice. See Toohey, 63 M.J. at 361; see
also Anderson, 82 M.J. at 87 (holding no prejudice for
post-trial delay delaying appellant's clemency and
parole consideration because prospects of receiving
clemency or parole are inherently speculative); United
States v. Bush, 68 M.J. 96, 101 (C.A.A.F. 2009)
(holding no prejudice because appellant's assertion
that post-trial delay led to a lost job opportunity were
speculative and uncorroborated). We find this factor
weighs in favor of the Government.
Where there is no qualifying prejudice from the
delay, there is no due process violation unless, “when
balancing the other three factors, the delay is so
egregious that tolerating it would adversely affect the
public’s perception of the fairness and integrity of the
military justice system.” Toohey, 63 M.J. at 362. Here,
we find the delays were egregious, not justified, and
would adversely affect the public’s perception of the
fairness and integrity of the military justice system.
103a
Again, we note that the overall delay in docketing this
case with our court was 353 days, more than double
the 150-day standard established in Livak.
Additionally, we note that we have not been presented
with any justification for the delay. Most troubling,
though, is the fact that even after this case was over
the 150-day standard Appellant’s record was left
untouched, in a cubicle at the base legal office.
Therefore, we find the delay in this case amounted to
a due process violation, and that Appellant is entitled
to relief. We provide such relief in our decretal
paragraph.
Finally, we note that even if we had not found a
due process violation, after considering the factors
outlined in Gay, we would find that Appellant is
entitled to Tardif relief in the same amount for the
excessive post-trial delay. Here, we again are
persuaded by the fact that the delay exceeded the
standards set forth in Livak by over 200 days; the
general lack of attention by the Government to the
overall post-trial processing of this case; the lack of
sufficient reasons for the delay; the harm to
confidence in the military justice process due to
extensive delay; the confidence this court can provide
meaningful relief in this particular situation; and the
fact that to grant relief is consistent with the dual
goals of justice and good order and discipline.
B. Illegal Pretrial Punishment
1. Additional Background
Appellant contends that the military judge abused
his discretion when he denied Appellant’s motion for
appropriate relief for illegal pretrial confinement
based on erroneous findings of fact and overlooking
important facts. Appellant specifically argues that he
104a
is entitled to relief for two reasons: (1) because he was
not permitted to go outdoors while in pretrial
confinement; and (2) because his restriction to base
was tantamount to confinement based on the fact that
for 154 days Appellant could not sleep in his own
home, put his children to bed, or spend quality time
with his wife. We do not find the military judge abused
his discretion and find no relief is warranted.
2. Law
“The question of whether [an a]ppellant is entitled
to credit for an Article 13[, UCMJ,] violation is
reviewed de novo.” United States v. Fischer, 61 M.J.
415, 418 (C.A.A.F. 2005) (citing United States v.
Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002)). “It is a
mixed question of law and fact, and the military
judge’s findings of fact will not be overturned unless
they are clearly erroneous.” Id. “Appellant bears the
bur-den of proof to establish a violation of Article 13[,
UCMJ].” Id.
Article 13, UCMJ, provides, “[n]o person, while
being held for trial, may be subjected to punishment
or penalty other than arrest or confinement upon the
charges pending against him.” Article 13, UCMJ,
prohibits two types of actions: (1) the intentional
imposition of punishment on an accused prior to trial,
i.e., illegal pretrial punishment; and (2) “pretrial
confinement conditions that are more rigorous than
necessary to ensure the accused’s presence at trial,
i.e., illegal pre-trial confinement.” United States v.
Inong, 58 M.J. 460, 463 (C.A.A.F. 2003) (citing United
States v. Fricke, 53 M.J. 149, 154 (C.A.A.F. 2000)
(additional citation omitted)).
The determination of whether pretrial restriction
is tantamount to confinement is based on the totality
105a
of the conditions imposed by the restriction. United
States v. King, 58 M.J. 110, 113 (C.A.A.F. 2003)
(citation omitted). The CAAF has set forth criteria to
consider when determining if pretrial restriction is
tantamount to confinement:
The nature of the restraint (physical or moral),
the area or scope of the restraint (confined to
post, barracks, room, etc.), the types of duties,
if any, performed during the restraint (routine
military duties, fatigue duties, etc.), and the
degree of privacy enjoyed within the area of
restraint. Other important conditions which
may significantly affect one or more of these
factors are: whether the accused was required
to sign in periodically with some supervising
authority; whether a charge of quarters or
other authority periodically checked to ensure
the accused’s presence; whether the accused
was required to be under armed or unarmed
escort; whether and to what degree [the]
accused was allowed visitation and telephone
privileges;
what
religious,
medical,
recreational, educational, or other support
facilities were available for the accused’s use;
the location of the accused’s sleeping
accommodations; and whether the accused was
allowed to retain and use his personal property
(including his civilian clothing).
Id. (alteration in original) (quoting United States v.
Smith, 20 M.J. 528, 531–32 (A.C.M.R. 1985), cited
with approval in United States v. Guerrero, 28 M.J.
223, 225 (C.M.A. 1989)).
106a
3. Analysis
Appellant’s first claim is based on the military
judge’s finding that there was a valid, weather-related
reason as to why he was denied access outside during
certain periods of his pretrial confinement.
Specifically, Appellant claims “the [m]ilitary [j]udge
erred in basing his ruling on erroneous facts and a
reasoning that a policy of general applicability to all
persons in confinement can justify what amounted to
punishment.” Appellant claims that the military
judge made a clearly erroneous finding of fact that the
temperatures at Minot Air Force Base, North Dakota,
were “well below zero” at times during Appellant’s
stay in confinement. The military judge was presented
with evidence that when the temperature dropped to
32 degrees Fahrenheit, inmates were not allowed
outside. The fact that temperatures during the winter
in Minot at times were “well below zero” is a finding
of fact “through reasonable inferences that the
military judge could reach from testimony and other
evidence that was presented on the motion.” United
States v. Harris, Misc. Dkt. No. 2020-07, 2021 CCA
LEXIS 176, at *12 (A.F. Ct. Crim. App. 16 Apr. 2021)
(unpub. op.).
The military judge stated on the record, “I know it
can get cold up here,” and received evidence about
Appellant’s crimes purchasing a snowblower, spread,
and ice melt. Using his common knowledge of the local
area, combined with logical inferences from the
testimony, the military judge could aptly conclude
that the temperatures fell “well below zero” at times
during Appellant’s stay in confinement. This finding
is “fairly supported by the record.” United States v.
Burris, 21 M.J. 140, 144 (C.M.A. 1985) (quoting
United States v. Lonberger, 459 U.S. 422, 432 (1983)).
107a
Ultimately, the military judge concluded that there
was no evidence that Appellant’s confinement
conditions “were done for the purposes of punishment,
nor is there evidence that those conditions were more
rigorous than necessary to ensure [Appellant’s]
presence at trial.” Appellant failed to meet his burden
to establish entitlement to credit on this point and we
concur with the military judge’s finding that there was
no intent to punish Appellant when he was denied
outside access due to inclement weather.
Appellant’s second claim is that the military judge
abused his discretion when he found Appellant’s 154day restriction to base was not tantamount to
confinement. Appellant’s argument is that during this
time he could not sleep in his own home, put his
children to bed, or spend quality time with his wife.
According to the criteria set forth by the CAAF to
consider when determining if pretrial restriction is
tantamount to confinement, the only fact Appellant
raises that potentially is a consideration is the
location of his sleeping accommodations. In this case,
while Appellant was not sleeping in his own home
during pretrial restriction, there is no indication that
his sleeping accommodations alone were somehow
tantamount to confinement. The military judge
recognized in his ruling denying Appellant’s motion
that Appellant could not sleep in his own home during
this time but noted that Appellant’s wife and children
were free to visit him. The military judge did not find
the conditions Appellant complained of amounted to
pretrial confinement. We agree and find Appellant
has not met his burden to establish a violation of
Article 13, UCMJ, and is not entitled to relief on this
point.
108a
C. Prosecutorial Misconduct
1. Additional Background
Appellant claims that trial counsel invoked the
community when calling him a “complete stain”
during pre-sentencing proceedings and that this was
improper argument under United States v. Voorhees,
79 M.J. 5 (C.A.A.F. 2019). As the CAAF reiterated in
Voorhees, “Disparaging comments are also improper
when they are directed to the defendant himself,” and
“[t]rial counsel’s word choice served as ‘more of a
personal attack on the defendant than a commentary
on the evidence.’” Id. at 12 (first quoting United States
v. Fletcher, 62 M.J. 175, 182 (C.A.A.F. 2005); and then
quoting Fletcher, 62 M.J. at 183). Appellant further
claims that trial counsel’s comment that he was a
“complete stain” is analogous to calling him a “pig” as
the trial counsel did in Voorhees, which the CAAF said
amounted to clear error, id. at 7–8, and that this
improper argument has negatively affected him. We
find any error did not result in material prejudice to a
substantial right of Appellant.
2. Law
The issue of “[i]mproper argument is a question of
law that we review de novo.” United States v. Marsh,
70 M.J. 101, 104 (C.A.A.F. 2011) (citation omitted).
However, if trial defense counsel does not object to a
sentencing argument by trial counsel, we review the
issue for plain error. Id. (citing United States v.
Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007)). To
establish plain error, an appellant “must prove the
existence of error, that the error was plain or obvious,
and that the error resulted in material prejudice to a
substantial right.” Id. at 106 (citing Erickson, 65 M.J.
at 223). Because “all three prongs must be satisfied in
109a
order to find plain error, the failure to establish any
one of the prongs is fatal to a plain error claim.”
United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F.
2006).
“The legal test for improper argument is whether
the argument was erroneous and whether it
materially prejudiced the substantial rights of the
accused.” United States v. Frey, 73 M.J. 245, 248
(C.A.A.F. 2014) (quoting United States v. Baer, 53
M.J. 235, 237 (C.A.A.F. 2000)). Three factors “guide
our determination of the prejudicial effect of improper
argument: ‘(1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the
weight of the evidence supporting the conviction[s].’”
United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017)
(alteration in original) (quoting Fletcher, 62 M.J. at
184). “In applying the Fletcher factors in the context
of an allegedly improper sentencing argument, we
consider whether trial counsel’s comments, taken as a
whole, were so damaging that we cannot be confident
that the appellant was sentenced on the basis of the
evidence alone.” United States v. Halpin, 71 M.J. 477,
480 (C.A.A.F. 2013) (alteration, internal quotation
marks, and citation omitted).
“Trial counsel is entitled to argue the evidence of
record, as well as all reasonable inferences fairly
derived from such evidence.” Frey, 73 M.J. at 248
(internal quotation marks and citation omitted).
“During sentencing argument, the trial counsel is at
liberty to strike hard, but not foul, blows.” Halpin, 71
M.J. at 479 (internal quotation marks and citation
omitted). “[T]he argument by a trial counsel must be
viewed within the context of the entire court-martial.”
Baer, 53 M.J. at 238. “The focus of our inquiry should
not be on words in isolation, but on the argument as
110a
viewed in context.” Id. (internal quotation marks and
citations omitted).
When analyzing allegations of improper
sentencing argument in a judge-alone forum, we
presume a “military judge is able to distinguish
between proper and improper sentencing arguments.”
Erickson, 65 M.J. at 225.
3. Analysis
As there was no objection during trial counsel’s
sentencing argument, we analyze this issue under a
plain error standard of review. We need not determine
whether trial counsel’s sentencing argument
constituted plain and obvious improper argument in
this case as we ultimately find that Appellant has
failed to demonstrate any material prejudice.
In testing for material prejudice, the first Fletcher
factor considers the severity of the misconduct. 62
M.J. at 184. On this matter, we note that the “lack of
a defense objection is some measure of the minimal
impact of a prosecutor’s improper comment.” United
States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 2001)
(internal quotation marks and citation omitted). Here,
we find that the comment was minor and relatively
insignificant. The comment was not
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