Petition for Writ of Certiorari — Douglas M. Folts, Petitioner v. United States
Supreme Court briefDec 17, 2025
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APPENDIX
TABLE OF CONTENTS
Folts
Court of Appeals for the Armed Forces Decision
(Aug. 18, 2025) ..................................................... 1a
Court of Appeals for the Armed Forces Order
Denying Reconsideration (Sep. 24, 2025) ......... 11a
Court of Appeals for the Armed Forces Order
Denying Reconsideration (Mar. 31, 2025) ........ 12a
Air Force Court of Criminal Appeals Decision
(Aug. 26, 2024) ................................................... 13a
Pulley
Court of Appeals for the Armed Forces Order
Denying Review (July 22, 2025) ....................... 37a
Court of Appeals for the Armed Forces Order
Denying Reconsideration (Mar. 31, 2025) ........ 38a
Air Force Court of Criminal Appeals Decision
(Oct. 24, 2024) .................................................... 39a
1a
This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Douglas M. FOLTS, Technical Sergeant
United States Air Force, Appellant
No. 25-0043
Crim. App. No. 40322
Argued May 20, 2025—Decided August 18, 2025
Military Judge: Brian C. Mason
For Appellant: Terri R. Zimmermann, Esq. (argued);
Captain Samantha M. Castanien and Jack B.
Zimmermann, Esq. (on brief).
For Appellee: Mary Ellen Payne, Esq. (argued);
Colonel Matthew D. Talcott and Lieutenant Colonel
Jenny A. Liabenow (on brief).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge MAGGS, Judge
HARDY, and Judge JOHNSON joined.
_______________
2a
Judge SPARKS delivered the opinion of the
Court.
Contrary to his pleas, a general court-martial with
officer and enlisted members found Appellant guilty
of one specification of sexual abuse of a child, in
violation of Article 120b, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920b (2018). 1 The
military judge sentenced Appellant to forfeit
$3,000.00 pay per month for six months along with
confinement for sixteen days. When Appellant’s courtmartial adjourned on February 27, 2022, the subjurisdictional sentence imposed meant that, under the
version of Article 66, UCMJ, 10 U.S.C. §866(b)(1)
(2018), in effect at the time of his trial, his case was
ineligible for direct appeal to the United States Air
Force Court of Criminal Appeals. However, on
December 23, 2022, Congress amended Article 66,
UCMJ, pursuant to the James M. Inhofe National
Defense Authorization Act for Fiscal Year 2023, Pub.
L. No. 117-263, § 544, 136 Stat. 2395, 2582 (2022)
[hereinafter FY23 NDAA], to afford Courts of
Criminal Appeals jurisdiction over all general and
special courts-martial resulting in a conviction,
regardless of sentence. The granted issue requires us
to decide which statute to apply, and, therefore,
“whether the Air Force Court of Criminal Appeals
lacked jurisdiction to review Appellant’s case.” 2 For
1 Unless otherwise noted, all references to the UCMJ are to
the Manual for Courts-Martial, United States (2019 ed.).
2 The following additional issue was granted by this Court:
As applied to Appellant, whether 18 U.S.C. § 922 is
unconstitutional because the Government cannot
demonstrate that a permanent bar on his possession of
firearms is consistent with the Second Amendment.
3a
the reasons discussed below, we hold that the lower
court had jurisdiction over Appellant’s appeal
pursuant to the FY23 NDAA.
I. Background
The military judge signed the entry of judgment on
March 9, 2022. The convening authority took no action
on the findings and approved the sentence as
adjudged. On July 6, 2022, a designated judge
advocate completed a review of the record of trial
pursuant to Article 65(d), UCMJ, 10 U.S.C. § 865(d)
(2018). On February 22, 2023, Appellant filed a notice
of direct appeal under Article 66(b)(1)(A), UCMJ, 10
U.S.C. § 866(b)(1)(A) (Supp. IV 2019-2023), pursuant
to the FY23 NDAA, which the lower court docketed
two days later. The lower court ultimately affirmed
the findings and sentence. United States v. Folts, No.
ACM 40322, 2024 CCA LEXIS 353, at *28, 2024 WL
3936827, at *10 (A.F. Ct. Crim. App. Aug. 26, 2024)
(unpublished).
II. Law
“The courts of criminal appeals are courts of
limited jurisdiction, defined entirely by statute.”
United States v. Arness, 74 M.J. 441, 442 (C.A.A.F.
2015) (citation omitted). The scope of an appellate
court’s authority, like other questions of jurisdiction,
is a legal question we review de novo. United States v.
English, 79 M.J. 116, 121 (C.A.A.F. 2019). “The
burden to establish jurisdiction rests with the party
United States v. Folts, 85 M.J. 391 (C.A.A.F. 2025) (order
granting review). In accordance with this Court’s decision in
United States v. Johnson, __ M.J. __ (C.A.A.F. 2025), we conclude
that because this Court lacks the authority to act on the § 922
indication in the entry of judgment, Appellant’s constitutional
challenge to 18 U.S.C. § 922 is moot.
4a
invoking the court’s jurisdiction.” United States v.
LaBella, 75 M.J. 52, 53 (C.A.A.F. 2015) (citation
omitted).
Article 66(b)(3), UCMJ, 10 U.S.C. § 866(b)(3)
(2018), provides that a lower court shall have
jurisdiction over a court-martial in which the
judgment entered includes death, a punitive
discharge, or confinement for two years or more—a
provision known as “automatic review” by the lower
court. Prior to December 23, 2022, a servicemember
convicted by a court-martial whose sentence included
confinement for more than six months and less than
two years, with no punitive discharge, had the right to
apply for review by the lower court within a certain
period of time—a provision known as a “direct
appeal.” Article 66(b)(1)(A), UCMJ, 10 U.S.C. §
866(b)(1)(A) (2018). Cases in which the sentence did
not qualify for either automatic review or a direct
appeal, or in which a convicted servicemember elected
not to exercise the right to a direct appeal or withdrew
from appellate review, were reviewed by a designated
attorney pursuant to Article 65(d)(2), UCMJ, 10
U.S.C. § 865(d)(2) (2018).
A servicemember whose case was reviewed by an
attorney pursuant to Article 65(d)(2), UCMJ, had a
potential route for review by the lower court, as
Article 69, UCMJ, 10 U.S.C. § 869 (2018), provided
that such a servicemember could apply for review by
the Judge Advocate General (TJAG). Such an
application would be timely if submitted within one
year after completion of Article 65(d)(2), UCMJ,
review. Article 69(b), UCMJ. After TJAG completed
the Article 69(c), UCMJ, review, the servicemember
could then apply to the Court of Criminal Appeals for
review, and the lower court had the discretion to grant
5a
such review only if (1) “the application demonstrate[d]
a substantial basis for concluding that the action on
review under [Article 69(c), UCMJ,] constituted
prejudicial error,” and (2) the servicemember filed the
application within sixty days of notification of TJAG’s
decision or sixty days after notification was deposited
in the United States mail, whichever was earlier.
Article 69(d)(2)(A)-(B); see also Article 66(b)(1)(D),
UCMJ (granting the lower court jurisdiction to review
such cases).
On December 23, 2022, Congress passed the FY23
NDAA. The FY23 NDAA, while retaining the same
criteria for automatic lower court review, significantly
expanded eligibility for direct appeals of general and
special court-martial convictions under Article 66,
UCMJ. In its new form, Article 66(b)(1)(A), UCMJ
(Supp. IV 2019-2023), provides that a lower court has
jurisdiction over “a timely appeal from the judgment
of a court-martial, entered into the record under
[Article 60c(a), UCMJ, 10 U.S.C. § 860c(a) (2018)],
that includes a finding of guilty.” In effect, the FY23
NDAA made every general or special court-martial
conviction reviewable by the lower court, regardless of
sentence.
III. Discussion
At the time of Appellant’s conviction, his case was
ineligible for direct appeal under the applicable
version of Article 66(b)(1), UCMJ, because he had not
received a sentence of confinement exceeding six
months and he was not entitled to an automatic
review under the applicable version of Article 66(b)(3),
UCMJ, because his sentence did not include a
6a
punitive discharge. 3 Five months after Appellant’s
conviction, in FY23 NDAA, Congress amended Article
66, UCMJ, to afford direct appellate review by a lower
court to all servicemembers who were convicted at a
general or special court-martial, regardless of the
sentence received. The question we must answer is
whether this change applies to Appellant.
When a statute has no specified effective date,
absent clear direction by Congress to the contrary, it
takes effect on the date of its enactment. Johnson v.
United States, 529 U.S. 694, 702 (2000) (citation
omitted). Accordingly, Congress could have chosen to
remain silent on the effective date which would have
meant that it took effect on the date of enactment.
Instead, Congress gave clear direction to what cases
could not take advantage of the FY23 NDAA by
providing that the changes to Articles 66 and 69,
UCMJ, “shall not apply to—(1) any matter that was
submitted before the date of enactment of this Act to
a Court of Criminal Appeals . . . ; or (2) any matter
that was submitted before the date of the enactment
of this Act to a Judge Advocate General under [Article
69, UCMJ].” § 544(d), 136 Stat. 2583-84. An appellant
can only submit matters to the lower court or TJAG in
a case where a court-martial judgment has already
occurred, so this provision gives clear direction by
Congress that it foresaw applicability over judgments
that occurred prior to its enactment.
In the instant case, Appellant’s judgment did not
fall into either category that Congress excepted from
the application of the expanded direct appeal rights
3 As will be discussed below, Appellant still had a potential
pathway to an Article 66, UCMJ, review before the lower court
pursuant to Article 69, UCMJ.
7a
under Article 66, UCMJ. As of December 23, 2022,
Appellant had not submitted an Article 66, UCMJ,
appeal to the lower court nor had he submitted his
case for review by TJAG pursuant to Article 69,
UCMJ. However, Appellant was still within the oneyear period following completion of his Article 65,
UCMJ, review in which to apply for review under
Article 69, UCMJ. See § 544(d), 136 Stat. 2583-84;
Article 69(b), UCMJ.
The Government contends that just because
Congress denoted two circumstances where the FY23
NDAA amendments did not apply to a pending case
does not support the negative inference that Congress
therefore intended the amendments to apply to all
other circumstances not specified. We disagree. The
FY23 NDAA is clear and unambiguous in its
application. To qualify for review under the new
Article 66, UCMJ, there must be a court-martial
conviction that has not already been appealed through
Article 66 or 69, UCMJ, as of the effective date of the
amendment. Appellant’s case did not meet the
disqualifying criteria. Accordingly, the lower court
had jurisdiction over Appellant’s Article 66(b)(1)(A),
UCMJ (Supp. IV 2019-2023), appeal.
However, we must pause to consider the
Government’s argument that Appellant’s direct
appellate appeal process was final when Congress
passed the FY23 NDAA. The Government asserts that
the Courts of Criminal Appeals would not have
jurisdiction over the changes made in the FY23 NDAA
if direct appeal was complete and the case was final
under Article 76, UCMJ, 10 U.S.C. § 876 (2018). 4 We
The Government bases its argument primarily on the
Supreme Court’s decision in Plaut v. Spendthrift Farm, 514 U.S.
4
8a
will assume, without deciding, that the Government
is correct in making this argument and proceed to
consider whether Appellant’s appeal was complete
and his case was final.
Here, the Government contends Appellant’s
conviction and sentence became final for purposes of
direct appellate review when the Article 65, UCMJ,
review was completed on July 6, 2022. The
Government points to Article 57, UCMJ, 10 U.S.C. §
857 (2018), entitled “Effective date of sentences,”
which was unchanged by the FY23 NDAA and
addresses when the various forms of punishment
adjudged by a court-martial shall take effect. Article
57(c)(1)(A), UCMJ, provides that in those cases that
are reviewed by a designated attorney pursuant to
Article 65, UCMJ, “[a]ppellate review is complete
under this section when” the Article 65, UCMJ, review
is complete. Therefore, the Government reasons,
Appellant’s conviction was final for purposes of
appellate review on July 6, 2022, and not subject to
further appeal based on the subsequent expansion of
direct appeal rights and jurisdiction in the FY23
NDAA.
We disagree. Context is important. Here, the
purpose of Article 57(c)(1)(A), UCMJ, is to define the
term “complet[ion of appellate review] under this
section.” That is, the definition specifically applies to
how that term is used in Article 57(a)(5), UCMJ, to
explain when the government may proceed with
executing a punitive discharge or sentence of death.
Taken together, Article 57(a)(5) and (c)(1)(A), UCMJ,
211, 218-19 (1995) (holding that Congress cannot enact
legislation reopening the final judgment of an Article III court in
a civil case).
9a
explain that the government may proceed with
executing, for example, a bad-conduct or dishonorable
discharge once Article 65, UCMJ, review is complete,
when such review is necessitated after an appellant
withdraws from automatic review by a Court of
Criminal Appeals under Article 66, UCMJ. While the
completion of Article 65(d), UCMJ, judge advocate
review carries significance in some cases for
implementing the sentence of a court-martial, the
completion of such review does not make appellate
review final.
The Government additionally asserts that “final
judgment as to the legality of the proceedings” for the
purposes of Article 76, UCMJ, occurs after the Article
65(d), UCMJ, review is completed. (Citation and
internal quotation marks omitted.) The Government
supports its argument by noting that after Article
65(d), UCMJ, review, further review by the TJAG
under Article 69 UCMJ, was optional and the Court of
Criminal Appeals had only potential discretionary
review over certain aspects, of Appellant’s case under
Article 69, UCMJ. Nevertheless, this pathway for
Appellant to obtain additional review of his courtmartial was expressly provided to him by Congress,
and it had not expired at the time the FY23 NDAA
went into effect. Accordingly, the Court of Criminal
Appeals still had potential jurisdiction over the case.
See United States v. Brown, 81 M.J. 1, 4-5 (C.A.A.F.
2021) (holding that the lower court had statutory
jurisdiction to entertain a writ petition where
although appellee’s sentence was not reviewable
under Article 66, UCMJ, the TJAG could potentially
refer the case for review pursuant to Article 69(d),
UCMJ); cf. Plaut, 514 U.S. at 227 (explaining that an
Article III court’s judgments are not final until “all
10a
appeals have been forgone or completed”). For this
reason, Appellant’s case was not final under Article
76, UCMJ.
IV. Conclusion
The decision of the United States Air Force Court
of Criminal Appeals is affirmed.
11a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
v.
USCA Dkt. No. 25-0043/AF
Crim.App. No. 40322
ORDER
Douglas M.
Folts,
Appellant
On consideration of Appellee’s petition for
reconsideration of the decision issued by the Court,
__ MJ. __ (C.A.A.F. 2025), it is, by the Court, this 24th
day of September, 2025,
ORDERED:
That the petition for reconsideration is hereby
denied.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Zimmermann)
Appellate Government Counsel (Payne)
12a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
v.
USCA Dkt. No. 25-0043/AF
Crim.App. No. 40322
ORDER
Douglas M.
Folts,
Appellant
On consideration of Appellant’s petition for
reconsideration of the Court’s order issued March 5,
2025, it is, by the Court, this 31st day of March, 2025,
ORDERED:
That the petition for reconsideration is hereby
denied.
For the Court,
/s/
cc:
Patricia Mariani
Acting Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Zimmermann)
Appellate Government Counsel (Payne)
13a
UNITED STATES AIR FORCE COURT
OF CRIMINAL APPEALS
________________________
No. ACM 40322
________________________
UNITED STATES
Appellee
v.
Douglas M. FOLTS
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary 1
Decided 26 August 2024
________________________
Military Judge: Brian C. Mason.
Sentence: Sentence adjudged on 27 February 2022 by
GCM convened at Eielson Air Force Base, Alaska.
Sentence entered by military judge on 9 March 2022:
Confinement for 16 days and forfeiture of $3,000.00
pay per month for 6 months.
Appellant appeals his conviction under Article 66(b)(1)(A),
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866(b)(1)(A), pursuant to the National Defense Authorization
Act for Fiscal Year 2023, Pub. L. No. 117–263, § 544, 136 Stat.
2395, 2582–84 (23 Dec. 2022).
1
14a
For Appellant: Major Kasey W. Hawkins, USAF;
Captain Samantha M. Castanien, USAF; Terri R.
Zimmermann, Esquire.
For Appellee: Lieutenant Colonel Thomas J. Alford,
USAF; Lieutenant Colonel J. Peter Ferrell, USAF;
Major Olivia B. Hoff, USAF; Major Jocelyn Q. Wright,
USAF; Captain Kate E. Lee, USAF; Mary Ellen
Payne, Esquire.
Before JOHNSON, ANNEXSTAD, and GRUEN,
Appellate Military Judges.
Senior Judge ANNEXSTAD delivered the opinion of
the court, in which Chief Judge JOHNSON and Judge
GRUEN joined.
________________________
This is an unpublished opinion and, as
such, does not serve as precedent under
AFCCA Rule of Practice and Procedure
30.4.
________________________
ANNEXSTAD, Senior Judge:
A general court-martial composed of officer and
enlisted members convicted Appellant, contrary to his
pleas, of one specification of sexual abuse of a child by
committing a lewd act in violation of Article 120b,
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920b. 2,3 The military judge sentenced Appellant to
Unless otherwise noted, all references to the UCMJ, the
Military Rules of Evidence (Mil. R. Evid.), and the Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2019 ed.).
2
3 Appellant was acquitted of two specifications of sexual abuse of
a child in violation of Article 120b, UCMJ, 10 U.S.C. § 920b.
15a
confinement for 16 days, and to forfeit $3,000.00 pay
per month for six months. The convening authority
took no action on the findings and approved the
sentence in its entirety.
Appellant raised three issues on appeal, which we
have reworded: (1) whether Appellant’s conviction
was legally and factually sufficient; (2) whether
Appellant was provided fair notice that sending three
memes constituted sexual abuse of a child; and (3)
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 firearm regulation” when he
was not convicted of a violent offense. 4 We also
considered an additional issue, not raised by
Appellant: (4) whether Appellant is entitled to relief
for unreasonable appellate delay in accordance with
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006),
or in the alternative, United States v. Tardif, 57 M.J.
219 (C.A.A.F. 2002).
With respect to issue (3), 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
4 Citing N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 24
(2022).
16a
prohibition remains a collateral consequence of the
conviction, rather than an element of findings or
sentence, and is therefore beyond our authority to
review”).
As to the remaining issues, we find no error that
materially prejudiced Appellant’s substantial rights,
and we affirm the findings and sentence.
I. BACKGROUND
In 2014, Appellant married CF who had two
children from a previous marriage: a daughter, OM,
and a younger son. Pursuant to a custody agreement,
Appellant and CF shared joint custody of the two
children with CF’s ex-husband, DM, who was also an
active-duty service member. In 2019, OM was 13
years old and lived with DM in Germany. Meanwhile,
Appellant was stationed in Alaska. While in
Germany, OM, who had developed a good relationship
with Appellant, began communicating with Appellant
via Skype, an instant messaging, voice, and video
calling application.
In September 2019, while OM was in eighth grade,
OM shared with Appellant over Skype that she had a
girlfriend. During their conversation, Appellant told
OM that he thought she “would say yes to anyone who
asked [her] out regardless of race, sex or gender.”
Towards the end of the chat conversation, Appellant
sent OM two memes. 5 The first is a photo of what
appears to be the buttocks of two women wearing
5 A “meme” is defined as “an amusing or interesting item (such
as a captioned picture or video) or genre of items that is spread
widely online especially through social media.” Meme,
MERRIAM-WEBSTER, https://www.merriam-webster.com/dict
ionary/meme (last visited 14 Aug. 2024).
17a
athletic spandex shorts. The second is a photo of two
women in bikinis. Both photos depict varying lower
and upper body proportions, respectively. The words
“garlic bread” were superimposed over the buttocks
and chest of the women with larger proportions, while
the word “bread” was superimposed over the women
with smaller proportions. After sending the memes,
Appellant sent a follow-up message suggesting that
OM and her girlfriend “would appreciate these.”
At Appellant’s court-martial, OM testified that she
was surprised when Appellant sent her the memes,
because he had never sent anything like that before
she started “developing” during eighth grade. OM
explained that she interpreted the memes as having a
sexual connotation, because they suggested the
women with larger buttocks and breasts were more
sexually attractive than those with smaller
proportions, much like how “garlic bread is better
than just regular bread.”
Sometime later, Appellant sent OM another meme
of what appeared to be a fish with a spherical
appendage hanging from it and the following caption:
“The horngus of a dongfish is attached by a scungle to
a kind of dillsack (the nutte sac).” OM testified she
had no idea how to respond. OM stated that based on
the reference to a “nut sack,” she thought the meme
had a sexual connotation. Feeling “disgusted” and
unamused, she replied: “What the fjhgusgtfgcjv.”
In late September 2019, OM and Appellant were
on Skype discussing her trip to an apple festival. In
response to OM stating that the festival was small,
Appellant sent her a message that read: “That looks
like sperm.” Appellant then said, “It’s sperm. Semen.
Jizz.” OM replied, “No, eww, no, no, no.” OM testified
18a
that she found Appellant’s insistence “weird,” because
“there would be no reason for anything [near her] to
have sperm on it.” After approximately a 30-minute
break in communications, Appellant messaged OM
again, asking, “You get the jizz stain out?” OM told
Appellant, “[I]t’s not that,” and that she was still
cleaning her room. Appellant responded: “‘Cleaning.’ I
understand. Wash your hands when you’re done.” OM
told Appellant she hated him because she “wouldn’t be
doing anything like that.”
At various points in their Skype conversations,
Appellant asked OM about her relationship with her
girlfriend, such as whether they had kissed and
whether OM was “attracted to her [girlfriend’s] female
features or . . . attracted to [the] idea that a human
likes [her].” Eventually, OM told Appellant that she
and her girlfriend had kissed three times. In response,
Appellant called OM a “slut” before asking, “How was
it?” Appellant asked OM if they kissed “3 times in one
go or 3 separate times,” whether they kissed “[j]ust on
the lips” or with “lips and tongue,” and whether OM
“drool[ed]” when they kissed. In total, Appellant sent
seven messages in quick succession, ending with:
“TELLLLLLLL MEEEEEEE.” OM testified that she
found it weird that Appellant wanted to know the
details and responded, “[E]ww,” before eventually
describing the kiss. Upon learning that OM’s
girlfriend initiated the kiss, Appellant told OM to “be
ready” because her girlfriend was “going to make the
next move beyond kissing.” Appellant continued to
question OM about the circumstances of her kiss
before telling her: “That feeling you had is the same
with males or females. Just saying . . . don’t be afraid
to experiment.” Appellant then asked OM if she was
“doing anything [she] shouldn’t.”
19a
The next day, OM responded to Appellant and told
him that “[n]othing happened.” Appellant replied:
“That was so like yesterday’s comment. How was
today? You pregnant?” After OM denied being
pregnant, Appellant asked OM if her girlfriend was a
virgin. OM testified that she was confused and
“weirded out” because she did not understand why
that mattered to Appellant or why he was interested.
Nevertheless, OM told Appellant that her girlfriend
was a virgin. Appellant responded by asking OM how
she knew, before asking what the two girls were doing
to advance their relationship:
You planning on doing anything with her? She
asked you out, kissed you and now, what? You
don’t hang out after school. I imagine you two
talk, text, sext on the phone? But what you are
two doing to further developed [sic] your
relationship?
Approximately a week and a half later, OM told
Appellant that she and her girlfriend broke up
because her girlfriend was now interested in a guy. As
OM described being upset about the breakup,
Appellant told her that she was “very pretty” and
“very beautiful.” He concluded by telling OM that
relationships were like a “buffet” and that she was
“hot enough so [she] can be picky.” Over the next
month, Appellant asked OM if she had kissed anyone
and if she was going to “try the outie” since “the innie
didn’t work.” Several months later, after OM attended
a function with a male friend, Appellant messaged her
to ask for details. When OM told him that she and her
friend had danced and had a lot of fun, Appellant
asked: “Am I gonna be a grandpa?”
20a
In March 2020, OM messaged Appellant to wish
him a happy birthday. Several hours later, at 0258
hours, Appellant sent OM three memes. At the time
Appellant sent the memes, it had been hours since
OM’s last message to him. The three memes depicted
the following: (1) A woman with large breasts,
wearing a tank top with no bra underneath and going
through an airport security checkpoint, with the
caption: “Me: we’re gonna have to perform a cavity
search / Her: but the detector didn’t even- / Me:
ma’[a]m it’s just protocol;” (2) a collage consisting of
images of a hand with one finger extended, two fingers
extended, and a man with an amputated arm, each
paired with images of a woman who appears to be
experiencing various degrees of sexual pleasure,
captioned: “Different levels of adult pleasure funny
adult meme;” and (3) an image of female genitalia
with the cartoon character Piglet superimposed over
it, with the caption: “Wherever you see Piglet, you
know Pooh is only a few inches away.” Upon receiving
the memes, OM replied, “[E]ww, what the hell?”
During her testimony, OM stated that she interpreted
the first meme as an “inappropriate” reference to the
woman’s body, which was “on the curvier side.” She
understood the second to be a sexual reference to
“being fingered.” OM further stated that she did not
understand what the third meme meant but
recognized that the picture was of female genitalia.
Overall, OM testified that she was “disgusted” by the
memes and did not understand why Appellant sent
them to her.
Later in 2020, OM went to visit Appellant and her
mother in Alaska. During this visit, OM noticed that
Appellant was acting differently toward her. At trial
OM described it as “tense.” She then described an
21a
occasion when she and Appellant were out for a drive
alone. Appellant parked the car on an abandoned
street and told OM he had to tell her something.
Appellant then proceeded to tell OM that he thought
her legs were “sexy;” that he would “go crazy”
whenever OM wore “booty shorts” around the house;
and that when OM was running, her breasts
“bounced” such that men would stare. Appellant
likened OM to a “smaller version” of her mother and
pressed her to describe her own legs as “sexy.” OM,
who was 14 years old at the time of her visit, testified
that she was “terrified.” Not knowing what to say, OM
laughed and said, “[O]kay.” Later, as they drove home,
Appellant asked OM to promise that she would not
say anything to her mother. On another occasion
during this visit, Appellant told OM that he thought
her “a[*]s looked good in those jeans.”
At the end of the summer, OM returned to
Germany and shortly thereafter started her freshman
year in high school. In October 2020, OM confided in
a classmate at school, JF, and then informed her
father DM and his wife (her stepmother) about what
had occurred in Alaska. Subsequently, OM made a
report to the Air Force Office of Special Investigations
(OSI).
Appellant was convicted of one specification of
sexual abuse of a child by committing a lewd act by
communicating to OM, a child who had not attained
the age of 16 years, indecent language. The indecent
language consisted of the three memes Appellant sent
to OM in March 2020.
22a
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant challenges the legal and factual
sufficiency of his conviction for sexual abuse of a child
by committing a lewd act by communicating indecent
language to OM. Specifically, Appellant alleges that
the Government did not prove that the three memes
he sent to OM in March 2020 were indecent, and the
Government failed to prove that Appellant
communicated the memes with the required criminal
intent. Appellant asks this court to set aside the
findings and sentence. We are not persuaded by
Appellant’s arguments and find no relief is warranted.
1. Additional Background
Concerning the specification of which Appellant
was convicted, the military judge gave the following
instruction:
In order to find the accused guilty of [sexual
abuse of a child by committing a lewd act], you
must be convinced, by legal and competent
evidence, beyond a reasonable doubt, one, that,
at or near North Pole, Alaska, on or about 21
March 2020, the accused committed a lewd act
upon [OM], by intentionally communicating to
[OM] indecent language, specifically by sending
her a meme depicting an image of a female
clitoris with the face of Piglet from Winnie the
Pooh superimposed over the clitoral hood and
the words, quote, whenever you see Piglet you
know Pooh is only a few inches away, end quote;
a meme depicting a series of images of a woman
apparently experiencing varying degrees of
sexual pleasure on the right side, and a picture
of one finger, two fingers, and a man’s
23a
amputated arm on the left side with words,
quote, different levels of adult pleasure, funny
adult meme, end quote, below; a meme
depicting an image of a woman with large
breasts going through what appears to be an
airport security checkpoint with words, quote,
Me: we’re going to have to perform a cavity
search, Her: but the detector didn’t even, Me:
Ma’am, it’s just protocol, end quote, with an
intent to gratify his sexual desire; and, two,
that, at the time of the lewd act, [OM] had not
attained the age of 16 years.
2. Law
We review issues of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of
legal and factual sufficiency is limited to the evidence
produced at trial. United States v. Dykes, 38 M.J. 270,
272 (C.M.A. 1993) (citations omitted).
“The test for legal sufficiency is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a
reasonable doubt.” United States v. Robinson, 77 M.J.
294, 297–98 (C.A.A.F. 2018) (citation omitted). “[I]n
resolving questions of legal sufficiency, we are bound
to draw every reasonable inference from the evidence
of record in favor of the prosecution.” United States v.
Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations
omitted). As a result, “[t]he standard for legal
sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 78 M.J. 218, 221
(C.A.A.F. 2019) (alteration in original) (citation
omitted).
24a
The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and
making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s
guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In
conducting this unique appellate role, we take ‘a fresh,
impartial look at the evidence,’ applying ‘neither a
presumption of innocence nor a presumption of guilt’
to ‘make [our] own independent determination as to
whether the evidence constitutes proof of each
required element beyond a reasonable doubt.’” United
States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim.
App. 2017) (alteration in original) (quoting
Washington, 57 M.J. at 399), aff’d, 77 M.J. 289
(C.A.A.F. 2018).
To convict Appellant of sexual abuse of a child by
committing a lewd act as charged, the Government
was required to prove that Appellant committed a
lewd act by communicating to OM indecent language
with an intent to gratify Appellant’s sexual desire,
and that at the time of the lewd act, OM had not
attained the age of 16 years. Manual for CourtsMartial, United States (2019 ed.) (MCM), pt. IV,
¶ 62.b.(3).
In this context, the definition of a “lewd act”
included two references to “indecent,” inter alia,
“intentionally communicating indecent language to a
child by any means, including via any communication
technology, with an intent to . . . arouse or gratify the
sexual desire of any person,” 10 U.S.C. § 920b(h)(5)(C);
or “any indecent conduct, intentionally done with or in
the presence of a child, including via any
communication technology,” amounting “to a form of
immorality relating to sexual impurity which is
25a
grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or deprave
morals with respect to sexual relations,” 10 U.S.C.
§ 920b(h)(5)(D).
“Indecent language is that which is grossly
offensive to modesty, decency, or propriety, or shocks
the moral sense, because of its vulgar, filthy, or
disgusting nature, or its tendency to incite lustful
thought. Language is indecent if it tends reasonably
to corrupt morals or incite libidinous thoughts.” MCM,
pt. IV, ¶ 105.c (directing practitioners to refer to
MCM, pt. IV, ¶ 62 “if the communication was made in
the physical presence of a child”).
The indecency of a communication depends on “the
context in which it is made.” United States v. Green,
68 M.J. 266, 270 (C.A.A.F. 2010) (citation omitted); see
also United States v. Hullett, 40 M.J. 189, 191 (C.M.A.
1994) (citations omitted) (noting that whether
language is indecent depends on multiple factors
including, inter alia, fluctuating community
standards, personal relationships, motive, intent, and
probable effect).
The United States Court of Appeals for the Armed
Forces (CAAF) “has long held that ‘indecent’ is
synonymous with obscene.” United States v. Meakin,
78 M.J. 396, 401 (C.A.A.F. 2019) (citing United States
v. Moore, 38 M.J. 490, 492 (C.M.A. 1994)). “It is wellsettled law that obscenity is not speech protected by
the First Amendment, regardless of the military or
civilian status of the ‘speaker.’” Id. (first citing United
States v. Williams, 553 U.S. 285, 288 (2008); then
citing United States v. Wilcox, 66 M.J. 442, 447
(C.A.A.F. 2008)).
26a
3. Analysis
Appellant argues that the Government did not
prove that the memes he sent to OM were indecent.
We disagree.
To properly evaluate the charged language, this
court must evaluate the entire record to determine the
precise circumstances under which the charged
language (the three memes) was communicated. Here
the
record
demonstrates
that
Appellant
communicated with OM, his then 13-year-old
stepdaughter, for months prior to the charged
communications. During this time, Appellant
frequently turned their communications to sexual
topics. Specifically, Appellant queried OM about the
physical aspects of her romantic relationship with
another teenager, asking OM about whether she had
kissed her girlfriend, how they kissed, whether her
girlfriend was a virgin, and what the girls were doing
(physically) to further their relationship. Additionally,
prior to the charged incident, Appellant also sent two
other memes with sexual connotations, brought up the
topic of sperm, and told her not to be afraid of sexually
experimenting with males and females. Appellant
also told OM that she was “beautiful,” “pretty,” and
“hot.” Appellant sent OM three sexually oriented
memes—one depicting a stylized image of female
clitoris, another containing a series of images of a
woman experiencing varying degrees of sexual
pleasure from digital penetration, and a third meme
suggesting that a well-endowed woman needed a
cavity search.
Later, during OM’s visit to Alaska, and when she
was then 14 years of age, Appellant told OM that he
thought her legs were “sexy;” that he would “go crazy”
27a
whenever OM wore “booty shorts” around the house;
and that when she was running, her breasts “bounced”
in such a way that men would stare. Appellant also
likened OM to a “smaller version” of her mother and
pressed her to describe her own legs as “sexy.” Later,
Appellant asked OM to promise that she would not
say anything to her mother. On another occasion,
while in Alaska, Appellant told OM that he thought
her “a[*]s looked good in those jeans.” Given this
context, we find the memes Appellant sent to his 14year-old stepdaughter were calculated to “incite
libidinous thoughts” or “incite lustful thought” in a
way that is “grossly offensive to modesty, decency, or
propriety,” and therefore qualify as indecent. United
States v. Avery, 79 M.J. 363, 367–68 (C.A.A.F. 2020)
(citations omitted) (relying upon the enumerated
Article 134, UCMJ, offense of “Indecent language”
with a child to construe the scope of the Article 120b,
UCMJ, “lewd act” definition of “indecency”); see also
Hullett, 40 M.J. at 191 (reciting the Article 134,
UCMJ, definition of “indecent language” and
explaining indecency is contextual).
Appellant argues now, as he did at trial, that these
memes were jokes, and that he sent them for OM’s
amusement. However, the record does not support
that Appellant shared these memes with OM while
discussing humorous Internet finds or had reason to
believe that, based on their conversations, OM would
find them humorous. Rather, Appellant sent these
memes in the middle of the night, and hours after
their previous conversation had ended. Furthermore,
nothing in the communications between Appellant
and OM suggest that she found the memes funny; in
fact, her response to Appellant’s attempts to sexualize
28a
the conversations resulted in OM being unamused,
“disgusted,” and, eventually, “terrified.”
While the memes at issue may not be indecent in
every context, they became so here when Appellant,
as an adult, parental figure, sent them to his 14yearold stepdaughter. The indecency of these memes is
especially evident when they were sent following
months of communications where Appellant
introduced increasingly sexualized topics to their
conversations. Those conversations demonstrate
Appellant’s unnaturally keen interest in the physical
aspects of OM’s romantic relationships and of his
sexual interest in her. Additionally, these memes,
when sent to a child, violated the community
standards in the military which include a custom of
protecting dependents, most importantly children,
from physical, emotional, and sexual harm. See
Hullett, 40 M.J. at 191 (affirming that the applicable
“community standards” for measuring whether
language is indecent are those of the military
community).
As described above, Appellant’s sexually oriented
messages to OM involved descriptions of Appellant’s
sexual desires and fantasies as well as requests for
sexual information about OM. We find that a
reasonable factfinder could conclude that, under the
circumstances, Appellant’s messages were “grossly
offensive to modesty, decency, or propriety, or
shock[ed] the moral sense, because of [their] vulgar,
filthy, or disgusting nature, or [their] tendency to
incite lustful thought.” See MCM, pt. IV, ¶ 105.c. We
further find that, based on the same facts, a
reasonable factfinder could conclude that Appellant
sent these communications with the intent to gratify
29a
his sexual desire, which his later communications
with OM while she was in Alaska confirm.
Therefore, viewing this evidence in the light most
favorable to the Prosecution and drawing every
reasonable inference from the evidence of record in
favor of the Prosecution, we find that Appellant’s
conviction for sexual abuse of a child is legally
sufficient. Additionally, having weighed the evidence
in the record of trial and having made allowances for
not having personally observed the witnesses, we are
convinced of Appellant’s guilt beyond a reasonable
doubt. See Turner, 25 M.J. at 325.
B. Fair Notice
Appellant contends that he was deprived of
constitutionally required fair notice that sending
three memes constituted sexual abuse of a child.
Specifically, Appellant argues that the statute in
question, Article 120b, UCMJ, “does not make
reasonably clear” that sending these three memes,
which he describes as “sexually-related humorous
communications,” was unlawful. We disagree.
1. Law
The Due Process Clause of the Fifth Amendment 6
“requires ‘fair notice’ that an act is forbidden and
subject to criminal sanction” before a person can be
prosecuted for committing that act. United States v.
Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (citing
United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F.
1998)). Due process “also requires fair notice as to the
standard applicable to the forbidden conduct.” Id.
(citing Parker v. Levy, 417 U.S. 733, 755 (1974)). The
6 U.S. CONST. amend. V.
30a
CAAF has found fair notice in “the MCM, federal law,
state law, military case law, military custom and
usage, and military regulations.” Id. at 31 (citations
omitted).
As stated supra, Article 120b, UCMJ, criminalizes,
among other things, sexual abuse of a minor by
committing a lewd act. The statute defines lewd act,
inter alia, as “intentionally communicating indecent
language to a child by any means, including via any
communication technology, with an intent to . . .
arouse or gratify the sexual desire of any person,” 10
U.S.C. § 920b(h)(5)(C); or “any indecent conduct,
intentionally done with or in the presence of a child,
including via any communication technology,”
amounting “to a form of immorality relating to sexual
impurity which is grossly vulgar, obscene, and
repugnant to common propriety, and tends to excite
sexual desire or deprave the morals with respect to
sexual relations,” 10 U.S.C. § 920b(h)(5)(D).
Congress did not define “indecent language” in
relation to Article 120b, UCMJ. However, the
President defined indecent language as prohibited by
Article 134, UCMJ, as language which is “grossly
offensive to modesty, decency, or propriety, or shocks
the moral sense, because of its vulgar, filthy, or
disgusting nature, or its tendency to incite lustful
thought. Language is indecent if it tends reasonably
to corrupt morals or incite libidinous thoughts.” MCM,
pt. IV, ¶ 105.c.
As our superior court recently recognized in United
States v. Rocha, when evaluating a statute:
[T]he “touchstone” of our analysis must simply
be to determine “whether the statute . . . made
it reasonably clear at the relevant time that the
31a
[accused’s] conduct was criminal.” In other
words, absolute precision is not the standard.
Rather, statutes must strike the fine balance of
being “sufficiently definite to give notice of the
required conduct to one who would avoid its
penalties” with the requisite broadness to
adequately “deal with untold and unforeseen
variations in factual situations.”
United States v. Rocha, 84 M.J. 346, No. 23-0134, 2024
CAAF LEXIS 250, at *11–12 (C.A.A.F. 8 May 2024)
(omission and second alteration in original) (citations
omitted).
“The due process concepts of fair notice and
vagueness are related.” United States v. Warner, 73
M.J. 1, 2 n.2 (C.A.A.F. 2013) (citation omitted). “The
‘voidfor-vagueness’ doctrine requires the criminal
activity to be defined with sufficient clarity such that
‘ordinary people can understand what conduct is
prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.’” United
States v. Caporale, 73 M.J. 501, 504 (A.F. Ct. Crim.
App. 2013) (quoting Kolender v. Lawson, 461 U.S. 352,
357 (1983)). In other words, “[v]oid for vagueness
simply means that criminal responsibility should not
attach where one could not reasonably understand
that his contemplated conduct is proscribed.” Parker,
417 U.S. at 757 (citing United States v. Harriss, 347
U.S. 612, 617 (1954)).
The constitutionality of a statute is a question of
law and is ordinarily reviewed de novo. United States
v. Wright, 53 M.J. 476, 478 (C.A.A.F. 2000) (citation
omitted).
“Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the intentional
32a
relinquishment or abandonment of a known right.”
United States v. Ahern 76 M.J. 194, 197 (C.A.A.F.
2017) (quoting United States v. Gladue, 67 M.J. 311
(C.A.A.F. 2009)). “[T]here is a presumption against
the waiver of constitutional rights.” United States v.
Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (internal
quotation marks and citation). Appellant may waive
the right to raise a constitutional issue on appeal
provided it is “clearly established that there was ‘an
intentional relinquishment or abandonment of a
known right or privilege.’” Id. (quoting Brookhart v.
Janis, 384 U.S. 1, 4 (1966)). In cases of forfeiture, we
review for plain error where an appellant has the
burden of demonstrating: “(1) error that is (2) clear or
obvious and (3) results in material prejudice to his
substantial rights.” United States v. Knapp, 73 M.J.
33, 36 (C.A.A.F. 2014) (citation omitted). In instances
where a clear or obvious error rises to the level of a
constitutional violation, the burden shifts to the
Government to “show that the error was harmless
beyond a reasonable doubt.” Rocha, 2024 CAAF
LEXIS 250, at *7 (quoting United States v.
Tovarchavez, 78 M.J. 458, 462–63 (C.A.A.F. 2019)).
2. Analysis
Appellant raises the issue of fair notice for the first
time on appeal. Applying the presumption against
waiver of a constitutional right, we find Appellant
forfeited this issue and review for plain error. We find
Appellant has failed to meet his burden of
demonstrating plain or obvious error.
Here, we conclude that the elements and
definitions contained in the statute provided all
servicemembers, including Appellant, with fair notice
that the specific act of communicating indecent
33a
language to a child for the purpose of arousing or
gratifying the sexual desire of any person is prohibited
under Article 120b, UCMJ. Furthermore, we find it
would not require a significant leap of logic for a
servicemember of ordinary intelligence to conclude
that communicating sexually suggestive language to
a child for such a purpose, via communication
technology, was prohibited.
To the extent Appellant argues that failure of 10
U.S.C. § 920b(h)(5)(C) to define “indecent language”
results in insufficient notice, we reject that argument.
Article 120b, UCMJ, is not the only offense in the
MCM relating to indecent language. In Article 134,
UCMJ, the President not only enumerated a separate
offense for communicating indecent language, but also
defined indecent language and identified the context
in which it applies to Article 120b, UCMJ, offenses.
Therefore, a person of ordinary intelligence would
understand that for the purposes of Article 120b,
UCMJ, indecent language is that which is “grossly
offensive to modesty, decency, or propriety, or shocks
the moral sense, because of its vulgar, filthy, or
disgusting nature, or its tendency to incite lustful
thought.” See MCM, pt. IV, ¶ 105.c.
The law does not require that the statute or
regulation “expressly set forth all conceivable
instances of impermissible conduct” to meet the
requirements of fair notice. See United States v. Pope,
63 M.J. 68, 74 (C.A.A.F. 2006) (holding that the
regulation did not have to specify all possible
prohibited behavior to provide fair notice, given the
“evolving and innumerable ways” misconduct could
occur); see also Rocha, 2024 CAAF LEXIS 250, at *12
(holding that “absolute precision is not the standard”
that the statute must have in describing criminal
34a
conduct). To the contrary, the law only requires that
the statute be “reasonably clear” as to the prohibited
conduct. Rocha, 2024 CAAF LEXIS 250, at *11. Here,
we find that elements and definitions contained in
Article 120b, UCMJ, along with the definition of
indecent language in Article 134, UCMJ, provide
sufficiently definite notice of the required conduct to
one who would avoid its penalties.” Id. at *12 (citation
omitted).
C. Timely Appellate Review
The military judge sentenced Appellant on 27
February 2022. Appellant’s record of trial was
docketed with this court on 24 February 2023. Over
the Government’s objection, this court granted
Appellant’s request for 12 enlargements of time to file
his assignments of error brief. Appellant’s brief was
filed on 16 May 2024, 447 days after the case was
docketed with the court. On 17 June 2024, the
Government filed their answer to Appellant’s brief.
On 21 June 2024, Appellant, with the consent of the
Government, requested an enlargement of time to file
his reply brief, which we granted. Appellant then filed
his reply brief 28 June 2024, 490 days after the case
was docketed with the court. This court is issuing its
opinion 18 months and 2 days after docketing.
This court recognizes “convicted servicemembers
have a due process right to timely review and appeal
of [their] courts-martial convictions.” Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006) (citations omitted). A
presumption of unreasonable delay also arises when
appellate review is not completed, and a decision not
rendered within 18 months of a case being docketed.
Moreno, 63 M.J. at 142. If there is a presumptive or an
otherwise facially unreasonable delay, we examine
35a
the matter under the four non-exclusive factors set
forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1)
the length of the delay; (2) the reasons for the delay;
(3) the appellant’s assertion of the right to timely
review and appeal; and (4) prejudice.” Moreno, 63 M.J.
at 135 (citing Barker, 407 U.S. at 530) (additional
citations omitted). “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. at 136
(citing Barker, 407 U.S. at 533). However, where an
appellant has not shown prejudice from the delay,
there is no due process violation unless the delay is so
egregious as to “adversely affect the public’s
perception of the fairness and integrity of the military
justice system.” United States v. Toohey, 63 M.J. 353,
362 (C.A.A.F. 2006).
A decision in Appellant’s case was not rendered
within 18 months. Appellant has not raised any issue
with this court concerning the post-trial processing of
his case and likewise has not claimed any prejudice as
a result of the delay. In Moreno, the CAAF identified
three types of cognizable prejudice for purposes of an
appellant’s due process right to timely post-trial
review: (1) oppressive incarceration; (2) anxiety and
concern; and (3) impairment of the appellant’s ability
to present a defense at a rehearing. Moreno, 63 M.J.
at 138– 39 (citations omitted). As to the first type of
prejudice, where Appellant does not prevail on the
substantive grounds of his appeal, there is no
oppressive incarceration. Id. at 139. Similarly, looking
at the third type of prejudice, where Appellant’s
substantive appeal fails, his ability to present a
defense at a rehearing is not impaired. Id. at 140.
Finally, with regards to the second type of prejudice,
anxiety and concern, “the appropriate test for the
36a
military justice system is to require an appellant to
show particularized anxiety or concern that is
distinguishable from the normal anxiety experienced
by prisoners awaiting an appellate decision.” Id.
Appellant has made no showing of such particularized
anxiety or concern with respect to the delay in
question, and we perceive none in his case.
Finally, 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 in this case even in the absence of a due
process violation. See Tardif, 57 M.J. at 225. After
considering the factors enumerated in United States
v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim. App. 2015),
aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude no such
relief is appropriate.
III. CONCLUSION
The findings and sentence as entered are correct in
law and fact, and no error materially prejudicial to the
substantial rights of the Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and sentence are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
37a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
v.
Mark A.
Pulley,
USCA Dkt. No. 25-0063/AF
Crim.App. No. 40438
ORDER
Appellant
On further consideration of the granted issue,
__ M.J. __ (Daily Journal February 20, 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 (Ward)
Appellate Government Counsel (Liabenow)
38a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
v.
Mark A.
Pulley,
USCA Dkt. No. 25-0063/AF
Crim.App. No. 40438
ORDER
Appellant
On consideration Appellant’s motion for leave to
file out of time a petition for reconsideration of this
Court’s order issued February 20, 2025, it is, by the
Court, this 31st day of March, 2025,
ORDERED:
That the motion is hereby denied.
For the Court,
/s/
cc:
Patricia Mariani
Acting Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Ward)
Appellate Government Counsel (Bezold)
39a
UNITED STATES AIR FORCE COURT
OF CRIMINAL APPEALS
________________________
No. ACM 40438 (f rev)
________________________
UNITED STATES
Appellee
v.
Mark A. PULLEY
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Upon Further Review
Decided 24 October 2024
________________________
Military Judge: Matthew P. Stoffel (motions); Brian C.
Mason.
Sentence: Sentence adjudged 28 September 2022 by
GCM convened at Malmstrom Air Force Base,
Montana. Sentence entered by military judge on 16
November 2022: Dishonorable discharge, confinement
for 36 months, forfeiture of all pay and allowances,
and reduction to E-1.
For Appellant: Major Jenna M. Arroyo, USAF;
Captain Trevor N. Ward, USAF.
40a
For Appellee: Lieutenant Colonel J. Peter Ferrell,
USAF; Lieutenant Colonel G. Matt Osborn, USAF;
Mary Ellen Payne, Esquire.
Before
RICHARDSON,
ANNEXSTAD,
WARREN, Appellate Military Judges.
and
Senior Judge RICHARDSON delivered the opinion of
the court, in which Senior Judge ANNEXSTAD 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.
________________________
RICHARDSON, Senior Judge:
In accordance with Appellant’s pleas, a general
court-martial comprised of a military judge sitting
alone convicted Appellant of one specification of
possession of child pornography, in violation of Article
134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 934, and one specification of attempted
distribution of child pornography, in violation of
Article 80, UCMJ, 10 U.S.C. § 880. 1,2 Contrary to
their 3 pleas, Appellant was convicted of one
Unless otherwise specified, all references to the UCMJ and
Rules for Courts-Martial are to the Manual for Courts-Martial,
United States (2019 ed.).
1
Appellant’s pleas were by exceptions and substitutions. The
Government attempted to prove up the excepted language in the
specification alleging attempted distribution of child
pornography (Specification of Charge II), but was unsuccessful.
2
3 Appellant’s brief notes that “they, them” currently are
Appellant’s preferred pronouns. We have attempted to honor
41a
specification of indecent conduct, in violation of
Article 134, UCMJ. 4 The court-martial sentenced
Appellant to a dishonorable discharge, confinement
for 36 months, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening
authority took no action on the findings. The
convening authority deferred the reduction in grade
and forfeitures until the entry of judgment, suspended
six months of the adjudged forfeitures, and waived the
resulting automatic forfeitures for six months for the
benefit of Appellant’s spouse and two children.
Appellant raises five issues on appeal: (1) whether
the Government’s delay in investigating and
prosecuting
this
case
violated
Appellant’s
constitutional and statutory rights to a speedy trial;
(2) whether the terminal element of Article 134,
UCMJ, Clause 2, and applicable caselaw create a
conclusive presumption, rendering Appellant’s
conviction under that article unconstitutional; (3)
whether Appellant’s conviction for indecent conduct
violates the First Amendment; 5 (4) whether denying
Appellant gender-affirming healthcare violated their
Eighth Amendment 6 right against cruel and unusual
punishment; and (5) whether the Government can
prove the 18 U.S.C. § 922 firearms prohibition is
constitutional as applied to Appellant. We have
carefully considered issue (5) and conclude it warrants
that preference in our writing, but generally have not altered
quoted language.
4 In accordance with their plea, Appellant was found not guilty
of a second specification of indecent conduct in violation of Article
134, UCMJ.
5 U.S. CONST. amend. I.
6 U.S. CONST. amend. VIII.
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neither discussion nor relief. See United States v.
Matias, 25 M.J. 356, 361 (C.M.A. 1987); see also
United States v. Vanzant, 84 M.J. 671, 680–81 (A.F.
Ct. Crim. App. 2024) (holding the 18 U.S.C. § 922
firearm prohibition notation included in the staff
judge advocate’s indorsement to the entry of judgment
is beyond a Court of Criminal Appeals’ statutory
authority to review); cf. United States v. Williams,
__ M.J. __, No. 24-0015, 2024 CAAF LEXIS 501, at
*12–13 (C.A.A.F. 5 Sep. 2024) (finding Courts of
Criminal Appeals lack authority to modify
information in the trial Statement of Results that is
“not part of the findings or sentence”). As to the
remaining assignments of error, we find no error that
materially prejudiced Appellant’s substantial rights.
I. BACKGROUND
In May 2021, Special Agent (SA) DA with
Homeland Security Investigations (HSI) posed in an
online chat room as a 33-year-old father of an 8yearold daughter. Upon entry into this particular chat
room, the user was instructed to state their name,
their age, their daughter’s age, and whether they are
“active,” meaning sexually active with their daughter.
Appellant entered the chat room and, using a
pseudonym, indicated, “30, 5, not active.” SA DA
initiated a conversation with Appellant in the chat
room. On 17 May 2021, Appellant sent SA DA a video
that SA DA described as “a prepubescent female
sucking on the toe of an adult male.” Appellant
accompanied the video with the statement that she
“out of the blue sucked on my toe like a pro last night.”
Appellant also sent SA DA three videos of a woman
(AO) who Appellant thought was younger than 18
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years. In one of the videos, AO removes her underwear
and exposes her pubic region as she lay on a bed.
Based on the tenor of their conversation, and the
videos Appellant sent him, SA DA sent a summons to
the chat room host for “basic subscriber data and IP
address information.” The resulting information led to
Appellant. After learning of Appellant’s Air Force
connection, HSI referred the matter to the Air Force
Office of Special Investigations (OSI) in early July
2021. OSI learned that Appellant was on leave. They
obtained a search authorization and waited until
Appellant’s return to execute it.
Meanwhile, in early June 2021, Appellant and
Appellant’s wife (RAP), along with their two children,
traveled by car to visit Appellant’s relatives. During
the overnight stop on the two-day drive, RAP checked
Appellant’s iPad to see if videos for their daughter
(RP) to watch during the drive were downloaded.
While on the device, RAP looked through the photos
to see if Appellant had any baby photos of their
children that she did not have. She found photos and
a video of their daughter in the “recently deleted”
folder. She described the video as “[Appellant] sitting
on the couch [in their home] opposite of [RP] and he
was repeatedly sticking his big toe into her mouth.”
She saw the date of the photos and video was 17 May
2021; RP was 5 years old. A version of this video,
altered to add glasses over RP’s face, was the video SA
DA received from Appellant in the chat room.
Upon the family’s return to Malmstrom Air Force
Base (AFB) on 8 July 2021, the search authorization
was executed and Appellant was placed in pretrial
confinement. Agents seized around 25 pieces of
evidence, mostly digital media. OSI agents
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interviewed RAP, who described finding the “very
disturbing” photos and video on Appellant’s iPad
during their trip.
An analysis of Appellant’s digital media revealed
he possessed child pornography. Appellant pleaded
guilty to possessing one video showing an adult
woman sexually abusing a girl.
II. DISCUSSION
A. Speedy Trial
Appellant asserts denial of their speedy trial rights
under the Sixth Amendment 7 and Article 10, UCMJ,
10 U.S.C. § 810. At trial, however, Appellant waived
their right to relief for this Sixth Amendment claim.
“[W]aiver is the ‘intentional relinquishment or
abandonment of a known right.’” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting
United States v. Olano, 507 U.S. 725, 733 (1993)). The
Sixth Amendment right to a speedy trial may be
waived. United States v. Mizgala, 61 M.J. 122, 124
(C.A.A.F. 2005). In his ruling the military judge noted:
“The [d]efense motion on this issue referenced all
three sources [(Rule for Courts-Martial (R.C.M.) 707,
Article 10, UCMJ, and Sixth Amendment)] as the
basis for the motion relief requested. At the motions
hearing, [d]efense [c]ounsel made clear that the sole
basis for their request for relief was Article 10[,
UCMJ].” This conclusion that Appellant abandoned
their Sixth Amendment claim was not challenged and
is supported by the record. Therefore, we consider only
Appellant’s speedy trial claim rooted in Article 10,
UCMJ.
7 U.S. CONST. amend. VI.
45a
1. Additional Background
Appellant was placed in pretrial confinement on 8
July 2021 and remained in pretrial confinement until
they were sentenced on 28 September 2022.
On 22 July 2021, Appellant first demanded a
speedy trial. Appellant also demanded a speedy trial
on 20 October 2021, 9 December 2021, 23 February
2022, 21 March 2022, and 24 May 2022. Between 3
August 2021 and 26 January 2022, the Government
made four requests to the special court-martial
convening authority to exclude time pursuant to
R.C.M. 707, each time providing a description of the
progress of the investigation.
The same day Appellant was confined, on 8 July
2021 OSI agents executed a search authorization and
seized 24 items of digital media. OSI worked with a
state of Montana lab to extract data from two of the
seized devices. On 27 July 2021, OSI sent the seized
digital evidence to the Department of Defense Cyber
Crime Center’s Cyber Forensics Laboratory
(DC3/CFL) to extract the data. Beginning around 6
August 2021, DC3/CFL began its process. After
encountering mechanical issues, it completed most of
the extractions and provided OSI a “findings” report
on 6 October 2021.
The findings report included a “results drive” or
“findings drive” containing hundreds of thousands of
files. SA JC testified during a motion hearing 8
The report from DC3 contained, I believe, over
900,000 files. I believe there were 270 or so
SA JC testified during the hearing relating to the defense
motion to exclude evidence of other misconduct under Mil. R.
Evid. 404(b).
8
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thousand images, several thousand videos. I
reviewed all of those. I flagged around 1,400 or
so images, which I suspected were child
pornography, and I believe there were six
videos that I flagged as child pornography. And
there were also multiple web-related files, like
search queries, search terms, that, I believe,
were pertinent to a child porn investigation.
In late October 2021, OSI acquired and submitted
warrants on nine software companies, and received
responses in early November 2021. The chronology in
the Government’s answer to Appellant’s brief lists no
activity between 14 November 2021 and 4 January
2022. However, in a 13 December 2021 request to the
convening authority to exclude time, the Government
stated it had identified an expert in pediatrics to view
the images and opine on the age of the persons
depicted. It anticipated the review would be complete
by 15 January 2022. According to its 26 January 2022
exclusion request, the Government learned that the
previously identified expert was retiring, and they
had identified a different expert, Dr. AH, to complete
the review.
In early January 2022, OSI and the base legal
office deputy staff judge advocate reviewed items
flagged as suspected or possible child exploitation
material. OSI narrowed the flagged items to 24, 9 and
sent the formal request to DC3/CFL on 25 February
9 At this time, OSI believed DC3/CFL’s 24-file limit applied.
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2022 for a “deep-dive” follow-on analysis. 10,11 Also on
25 February 2022, OSI started making arrangements
for Dr. AH to conduct a sexual maturity rating review
of suspected child pornography. Dr. AH reviewed the
materials on 23 March 2022, and provided a report on
31 March 2022.
Also on 31 March 2022, a total of two charges and
four specifications were preferred against Appellant.
The same day, they were served on Appellant and
received on behalf of the special court-martial
convening authority. The Government set a date of 12
April 2022 for a preliminary hearing under Article 32,
UCMJ, 10 U.S.C. § 832, but had not secured a
preliminary hearing officer. Appellant waived the
hearing on 8 April 2022. The special court-martial
convening authority forwarded the charges and
specifications to the general court-martial convening
authority, who received them on 29 April 2022. The
general court-martial convening authority referred
the charges and specifications to a general-court
martial on 4 May 2022, the day after his staff judge
advocate provided pretrial advice.
In the absence of agreed-upon dates for a pretrial
hearing and trial, and upon the Defense’s request, the
trial judiciary held a docketing conference with the
parties on 31 May 2022—the same day the
Government sent in its docketing request. The trial
judiciary deemed the Prosecution’s case-ready date as
6 June 2022, and the Defense’s case-ready date as 26
10 SA JC testified “it is part of OSI’s policy to send flagged items
to DC3 for follow-on examination.”
11 SA JC testified he sent additional information to DC3/CFL for
follow-on analysis, but those results did not provide additional
investigative “leads.”
48a
September 2022. It set 29 August 2022 as the date for
arraignment and 26 September 2022 as the date for
trial.
On 7 June 2022, Appellant’s trial defense counsel
requested an inquiry under R.C.M. 706 (sanity board).
The Prosecution did not oppose. On 9 July 2022, the
military judge ordered the sanity board. The
summarized report of the sanity board is dated 12
August 2022. The report indicated one of Appellant’s
diagnoses was gender dysphoria.
On 24 June 2022, DC3/CFL provided OSI a 42page report following OSI’s“deep dive” request from
February 2022. 12
On 27 June 2022, upon the Defense’s request, the
military judge set an Article 39(a), UCMJ, 10 U.S.C.
§ 839(a), hearing on the defense motion to release
Appellant from pretrial confinement. The military
judge scheduled the hearing for 20 July 2022, but,
upon the Defense’s later request, continued it to 29
August 2022—the date set for the arraignment.
As part of its investigation into Appellant, OSI
worked with New Zealand authorities to obtain from
a New Zealand Internet company evidence of
Appellant’s possession of child pornography. In
September 2021, agents requested information from
New Zealand on how to access an account Appellant
had with a New Zealand provider. In June 2022, OSI
coordinated with the Digital Child Exploitation Team,
Department of Internal Affairs, New Zealand,
regarding Appellant’s account, and in early July 2022
12 The report indicates DC3/CFL received OSI’s request on 23
February 2022. Other evidence in the record suggests OSI sent
it on 25 February 2022. We find this discrepancy insignificant.
49a
received files and reports. From that lead, SA JC
received and reviewed over 3,000 files, and flagged
about 1,200 photos and videos as child pornography.
SA JC explained that the videos and images were
more complete versions of the fragments found on
Appellant’s devices.
On 13 July 2022, OSI officially closed its
investigation into Appellant, and disseminated a
lengthy report.
Appellant was arraigned on 29 August 2022.
During that pretrial hearing, which ended on 30
August 2022, Appellant deferred entry of pleas and
selection of forum, and litigated several motions.
Among those motions were a motion for release from
pretrial confinement and a motion to dismiss for a
speedy trial violation.
Appellant testified on the motion to dismiss.
Appellant recounted their experiences the day they
were placed in pretrial confinement, their first full day
of confinement, and an average day in confinement.
Trial defense counsel asked Appellant a series of
questions about the impact confinement had on them:
Q. How has your time in pretrial confinement
impacted you mentally?
A. I would say that it’s impacted it greatly.
Q. Has the time in pretrial confinement
increased your anxiety?
A. Yes.
....
Q. [Appellant], how has the time in pretrial
affected you emotionally?
A. It has greatly affected me emotionally.
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Q. How has it affected you psychologically?
A. Also very greatly impacted that.
....
Q. If you were not in pretrial confinement,
would you . . . be living a more open life as a
female?
A. Yes. I would be able to follow the
recommendations given to me by my Mental
Health providers here on Malmstrom Air Force
Base.
Trial defense counsel also asked Appellant a series
of questions about Appellant’s preparation for trial.
Appellant explained they had not reviewed all the
“thousands of pages” of documents or “at least over 50”
videos or media in discovery because of the
unavailability of an escort and vehicle to travel to trial
defense counsel’s office, and the limited number of
computers in that office. On cross-examination,
Appellant testified they had access, albeit limited, to
defense counsel, and agreed “[n]one of the members of
the confinement facility sought to obstruct” that
access.
Appellant also testified about gender dysphoria,
and their desire to live as a female. After trial defense
counsel confirmed Appellant was “aware of a process
in the Air Force to allow [them] to have exceptions to
live as a female,” Appellant stated they had not “been
able to complete that process” because of pretrial
confinement. Appellant testified not being able to live
as a female in pretrial confinement impacted them “a
very large amount.”
On cross-examination by the special trial counsel,
Appellant clarified the timing of their gender
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dysphoria diagnosis. Appellant testified they had been
“undergoing therapy to address issues of gender
dysphoria” with a civilian provider and not a miliary
provider, 13 but Appellant was not diagnosed with
gender dysphoria “until after being placed in pretrial
[confinement].” Due to that pretrial confinement, they
could not continue to see the civilian provider and
“had to start from scratch” with a military-affiliated
provider. Appellant also clarified that, before
confinement, they had taken few steps to present as
female.
Trial began on 26 September 2022; Appellant was
sentenced on 28 September 2022.
2. Law
“In the military justice system, an accused’s right
to a speedy trial flows from various sources, including
the Sixth Amendment [and] Article 10 of the [UCMJ]
. . . .” United States v. Cooper, 58 M.J. 54, 57 (C.A.A.F.
2003). “Article 10[, UCMJ,] imposes a more stringent
speedy trial standard than the Sixth Amendment . . .
.” United States v. Thompson, 68 M.J. 308, 312
(C.A.A.F. 2010) (citing Mizgala, 61 M.J. at 129)
(additional citation omitted).
We conduct a de novo review of speedy trial claims.
United States v. Heppermann, 82 M.J. 794, 803 (A.F.
Ct. Crim. App. 2022) (citation omitted). We give
“substantial deference to a military judge’s findings of
fact that will be reversed only if they are clearly
13 Appellant explained when they “first seriously considered
treatment” they were “unable to, based on the previous
presidential administration’s decisions regarding transgender
service members.” Appellant sought treatment, but “outside of
the military Mental Health” out of fear of “being pushed out of
the service.”
52a
erroneous.” Mizgala, 61 M.J. at 127 (citing Cooper, 58
M.J. at 57–59) (additional citation omitted);
Heppermann, 82 M.J. at 803. “A finding of fact is
clearly erroneous when ‘there is no evidence to
support the finding’ or when ‘although there is
evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed.’”
United States v. Harrington, 81 M.J. 184, 189
(C.A.A.F. 2021) (quoting United States v. Criswell, 78
M.J. 136, 141 (C.A.A.F. 2018)).
Article 10, UCMJ, provides in pertinent part:
“When a person subject to this chapter is ordered into
arrest or confinement before trial, immediate steps
shall be taken . . . to try the person or to dismiss the
charges and release the person.” 10 U.S.C. §§
810(b)(1), 810(b)(1)(B). The speedy trial requirement
of “Article 10, UCMJ, does not demand constant
motion but does impose on the Government the
standard of ‘reasonable diligence in bringing the
charges to trial.’” United States v. Cooley, 75 M.J. 247,
259 (C.A.A.F. 2016) (quoting Mizgala, 61 M.J. at 129).
“Short periods of inactivity are not fatal to an
otherwise active prosecution.” Mizgala, 61 M.J. at 127
(citation omitted). We “look[ ] at the proceeding as a
whole and not mere speed.” Id. at 129 (citation
omitted). “A conclusion of unreasonable diligence may
arise from a number of different causes and need not
rise to the level of gross neglect to support a violation.”
Id. (citation omitted).
We determine whether the prosecution was
reasonably diligent by employing the fourfactor test articulated by the [United States]
Supreme Court in Barker v. Wingo, 407 U.S.
514 . . . (1972): (1) the length of the delay; (2)
53a
the reasons for the delay; (3) whether the
appellant made a demand for a speedy trial;
and (4) prejudice to the appellant.
United States v. Reyes, 80 M.J. 218, 226 (C.A.A.F.
2020) (citing Cooley, 75 M.J. at 259). “None of these
factors alone are a ‘necessary or sufficient condition to
the finding of a deprivation of the right of speedy
trial.’” Id. (quoting Cooley, 75 M.J. at 259). “Rather,
they are related factors and must be considered
together with such other circumstances as may be
relevant.” Barker, 407 U.S. at 533.
“The length of delay is measured under Article 10[,
UCMJ,] as it is for the Sixth Amendment: from the
date an accused enters pretrial confinement until the
commencement of the trial on the merits.” Reyes, 80
M.J. at 226 (footnote omitted) (citing United States v.
Wilder, 75 M.J. 135, 138 (C.A.A.F. 2016); United
States v. Danylo, 73 M.J. 183, 189 (C.A.A.F. 2014)).
When assessing the reason for delay, this court
considers the context, because a “delay that can be
tolerated for an ordinary street crime is considerably
less than for a serious, complex conspiracy charge.”
Barker, 407 U.S. at 531. Additionally, a delay
intended to “hamper the defense” should be weighted
more heavily than a “more neutral reason such as
negligence.” Id. (footnote omitted). Where the delay is
based on the prosecution’s trial strategy, a timeconsuming approach is permissible if the strategy is
“not unusual or inappropriate” under the
circumstances. Danylo, 73 M.J. at 187. “[O]rdinary
judicial impediments, such as crowded dockets,
unavailability of judges, and attorney caseloads, must
be realistically balanced.” United States v. Kossman,
38 M.J. 258, 261–62 (C.M.A. 1993).
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Prejudice under Barker “should be assessed in the
light of the three interests of the accused which the
speedy trial right was designed to protect[:] . . . (1)
preventing oppressive pretrial incarceration; (2)
minimizing anxiety and concern of the accused; and
(3) limiting the possibility that the defense will be
impaired.” United States v Guyton, 82 M.J. 146, 155
(C.A.A.F. 2022) (alteration and ellipsis in original)
(internal quotation marks and citation omitted). “Of
these forms of prejudice, the most serious is the last,
because the inability of a defendant adequately to
prepare his case skews the fairness of the entire
system.” Id. (internal quotation marks and citation
omitted).
The remedy for an Article 10, UCMJ, violation is
“dismissal with prejudice of the affected charges.”
Kossman, 38 M.J. at 262.
3. Analysis
Unless otherwise noted, we find sufficient evidence
in the record to support the military judge’s findings
of fact. We review de novo whether those facts
demonstrate a lack of reasonable diligence under
Article 10, UCMJ, beginning with an analysis of the
Barker factors.
a. Length of the Delay
The first factor under the Barker analysis serves
as a “triggering mechanism,” meaning that unless the
period of delay is unreasonable on its face, “there is no
necessity for inquiry into the other factors that go into
the balance.” United States v. Cossio, 64 M.J. 254, 257
(C.A.A.F. 2007) (internal quotation marks and
citation omitted). Here, the military judge found that,
at the time of the hearing on this motion, Appellant
“had spent over 400 days in pretrial confinement.” We
55a
agree with his conclusion that “[t]his is facially
unreasonable and this factor weighs in favor of the
Defense.”
b. Reasons for the Delay
For this factor, “different weights should be
assigned to different reasons.” Barker, 407 U.S. at
531. “A deliberate attempt to delay the trial in order
to hamper the defense should be weighted heavily
against the [G]overnment.” Id. (footnote omitted). But
“[m]ore neutral reason[s] such as negligence or
overcrowded courts should be weighted less heavily.”
Id. A “delay caused by the [D]efense weighs against
the defendant.” Cooley, 75 M.J. at 260 (internal
quotation marks and citation omitted). In addition,
“the Government has the right (if not the obligation)
to thoroughly investigate a case before proceeding to
trial.” Cossio, 64 M.J. at 258.
Appellant’s primary contention is “Air Force Office
of Special Investigations [ ] agents t[ook] 142 days to
review DC3’s eight-page extraction report.” We
perceive a significant difference between the report
and the digital files in the results drive accompanying
the report. While SA JC did not specify how long it
took him to review the hundreds of thousands of files,
we are confident it took considerably longer than
review of an eight-page report.
The military judge found the processing of the
“dozens of items of digital files” seized “required
review of significant amounts of digital files.” We find
support in the record for the military judge’s finding.
He concluded this was “[t]he primary reason for precharging delay in this case.” We add that OSI did more
than review the DC3/CFL extraction report and
results drives; they coordinated with a foreign country
56a
to obtain additional evidence of Appellant’s possession
of child pornography.
Appellant makes additional claims of lack of
diligence. First, Appellant faults OSI not having
“images or videos evaluated for sexual maturity until
25 February 2022.” We note, however, that by 13
December 2021, the Government had identified an
expert to conduct this review. Moreover, we find it not
unreasonable for the Government in its investigations
and prosecutions to narrow hundreds of thousands of
files to a small fraction before requesting expert
assistance and ultimately preferring charges.
Additionally, Appellant asserts the Government’s
delay from preferral to referral shows a lack of
reasonable diligence. Appellant complains “it took the
Government 26 days to refer charges [after waiver of
the preliminary hearing],” and claims this was an
unjustified delay. Appellant does not propose,
however, what a reasonable period would be for the
Government to process a preliminary hearing waiver,
forward the preferred charges and supporting
evidence from the special court-martial convening
authority to the general court-martial convening
authority for referral consideration, and for the
general court-martial convening authority to make a
decision. The charges were referred 34 days after
preferral and 26 days after the waiver was submitted.
We find the Government was reasonably diligent
here.
The military judge concluded “[t]he time between
the preliminary hearing waiver and referral is
reasonable in light of the relative novelty of
Specifications 2 and 3 of Charge I [alleging indecent
conduct] as well as the volume of evidence involved in
57a
this case.” Regarding relative novelty, Appellant
asserts the offense of indecent conduct is not novel.
How the indecent conduct was charged, however, was
unusual enough to prompt a motion to dismiss at trial
and Appellant’s assertions of error regarding
Specification 2 of Charge I, discussed in Sections II.B
and II.C infra, on appeal. However, the Government
has not asserted this “relative novelty” was a reason
for the delay. We give little weight to this novelty
argument as we consider the Government’s reasons
for the delay.
Appellant also claims the Government was not
reasonably diligent in notifying the trial judiciary to
set a trial date. On this point, we agree with the
military judge, who stated in his written ruling that
the delay between service of charges on Appellant on
5 May 2022 and notice of referral to the trial judiciary
on 31 May 2022 “is concerning and does not reflect
reasonable diligence.” However, we also agree with
the military judge’s finding and conclusion that “the
Defense ready date reflected on [the trial judiciary]
request was 26 September [2022], so this delay seems
to have been irrelevant to the unavoidable delay
between referral and the trial date.”
Overall, the military judge found the reasons for
delay to weigh in favor of the Government. We agree.
The Government’s investigation of Appellant involved
review of hundreds of thousands of files and other
digital media, in addition to processing warrants here
and abroad. The Government identified, arranged,
and utilized a pediatric expert to identify the ages of
the children in the media, and a psychiatrist to
conduct the Defense-requested sanity board. Finally,
the Defense was not ready to go to trial until around
58a
four months after docketing. We find this Barker
factor weighs in favor of the Government.
c. Demand for Speedy Trial
The military judge found that the Defense made
five demands for speedy trial. We agree with his
conclusion that “[t]his factor weighs in favor of the
Defense.”
d. Prejudice
The United States Supreme Court has identified
three forms of cognizable prejudice under Barker,
including oppressive pretrial incarceration, anxiety
and concern, and—most seriously—impairment of the
accused’s defense. Mizgala, 61 M.J. at 129 (citing
Barker, 407 U.S. at 532).
Appellant first argues the confinement itself is
“inherently oppressive.” However, “[g]iven that
Article 10, UCMJ, is triggered only when an accused
is in pretrial confinement, the prejudice prong of the
balancing test triggered by pretrial confinement
requires something more than pretrial confinement
alone.” Cooley, 75 M.J. at 262.
Next, Appellant argues prejudice in the form of
denial of adequate medical care. 14 They assert the
“military judge did not find prejudice because
[Appellant] ‘did not . . . provide examples’ of the
distress” in their testimony on the motion to dismiss.
(Ellipsis in original). While the Government does have
the ultimate burden to demonstrate it acted with
reasonable diligence in bringing Appellant to trial in
accordance with Article 10, UCMJ, balancing of the
14 For reasons discussed in Section II.D, infra, we find Appellant
was not denied adequate medical care.
59a
Barker factors requires Appellant to demonstrate
prejudice. See United States v. Wilson, 72 M.J. 347,
355 (C.A.A.F. 2013) (finding appellant “failed to
establish that the conditions of his confinement or any
anxiety or concern that he suffered rose to the level of
Article 10[, UCMJ,] prejudice”). During direct
examination from trial defense counsel, Appellant
stated the time in pretrial confinement impacted them
mentally “greatly;” affected them emotionally
“greatly,” and psychologically “very greatly;” and
agreed it “increased” their anxiety. The military judge
found Appellant “testified baldly that his pretrial
confinement has impacted him emotionally,
psychologically and increased his anxiety. [Appellant]
did not expand on or provide examples of these
assertions.” We find Appellant’s general complaints of
increased anxiety and being affected “greatly” or “very
greatly” while confined did not sufficiently
demonstrate prejudice.
Moreover, while Appellant utilized civilianprovided mental health care before he was confined,
Appellant did not state they wanted to continue to
receive this care. Appellant testified that he took
advantage of similar care from a military provider
during pretrial confinement. In one way, Appellant’s
medical care may have improved—Appellant’s gender
dysphoria was not diagnosed until after Appellant
was placed in pretrial confinement. Finally, Appellant
has not demonstrated that, but for being confined,
they would have lived as a female.
Appellant also asserts the time in pretrial
confinement “hindered [ ] their ability to assist with
their defense.” The military judge found that
Appellant “has been able to review over 1,000 pages of
discovery for the case and has not had his access to his
60a
defense counsel obstructed.” While we give
substantial deference to the military judge’s findings
of fact, his ruling does not fully address Appellant’s
hindrance claim on appeal. From our read of the
record, Appellant’s inability to review materials was
due in large part to the Defense’s use of its office
resources. Appellant did not claim he requested to
view possible contraband evidence, including the
charged images of child pornography, and was denied.
Indeed, Appellant did not state what he intended to
review but was unable to review due to their
confinement status.
The military judge found that “[c]onsidering the
conditions described by [Appellant], his pretrial
confinement is not oppressive, appears to be set up to
minimize his anxiety and concern and limits the
possibility that his defense will be impaired in any
way.” The military judge weighted this prejudice
factor in favor of the Government. We do as well.
e. Barker Analysis Conclusion
Considering the fundamental demand of Article
10, UCMJ, for reasonable diligence, and considering
the Barker factors, we conclude Appellant was not
denied their right to a speedy trial under Article 10,
UCMJ. While length of the overall delay and
Appellant’s assertion of their right to a speedy trial
weigh in favor of Appellant, both the lack of prejudice
and the reasons for the delay from trial docketing to
trial date weigh against Appellant. The Government’s
primary reason for the delays was a common one: the
need “for the Government to marshal and weigh . . .
forensic evidence[ ] before proceeding to trial.” Cossio,
64 M.J. at 257. While the Government might have
been able to move the case more expeditiously at some
61a
points in time, the relatively short delays and neutral
reasons demonstrate the Government acted with
reasonable diligence overall. Our review of the record,
including the findings of fact made by the military
judge, firmly convinces us that the Government
proceeded to trial with reasonable diligence under the
circumstances of the case, and Appellant was not
denied their Article 10, UCMJ, right to a speedy trial.
B. Sufficiency of Convictions
Appellant claims error in the military judge’s
acceptance of their plea of guilty to possession of child
pornography (Specification 1 of Charge I) and
attempted distribution of child pornography
(Specification of Charge II), and the military judge’s
finding of guilt, contrary to Appellant’s plea of not
guilty, to indecent conduct (Specification 2 of Charge
I). Appellant’s contentions center on the terminal
element of Article 134, UCMJ, requiring the conduct
be of a nature to bring discredit upon the armed forces.
Appellant claims they were “found guilty of three
specifications through unconstitutional conclusive
presumptions” instead of distinct “proof of the
terminal element.”
1. Additional Background
a. Plea Inquiry
Towards the beginning of his inquiry into
Appellant’s pleas of guilty, the military judge defined
service-discrediting conduct as “conduct which tends
to harm the reputation of the service or lowers it in
public esteem.”
Such conduct was an element of the charged
offense of Specification 1 of Charge I, under Article
134, UCMJ. Before the military judge asked Appellant
62a
specifically about this conduct in relation to this
offense, Appellant said:
. . . I understood that the content I was seeking
was not legal.
....
And I understood [the zip file I found] would
likely contain pornographic content of persons
who were below the age of 18.
I know that these types of images are
considered child pornography and are illegal to
possess.
....
I know that my behavior in 2021 was not
acceptable. Society respects the honors of those
serving in uniform and service members are
expected to hold themselves to the highest and
there and protect our society. Knowing that
someone in uniform was actively looking for
child pornography involving teenagers and in
doing so downloaded and continue to possess
the video described would bring discredit upon
the armed services.
The following is from the end of the inquiry into
Specification 1 of Charge I:
[Military judge (MJ)]: Do you admit that your
actions were of a nature to bring discredit upon
the Armed Forces?
[Appellant]: Yes, Your Honor. And that’s
because the public holds members who serve in
high regard and any member acting in such a
way brings discredit upon the Armed Forces.
....
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MJ: Do you agree and admit that your conduct
was of a nature to bring discredit upon the
Armed Forces?
[Appellant]: Yes, Your Honor.
Appellant described what the community might
think of the video they possessed:
MJ: . . . . Do you believe that video to be
obscene?
[Appellant]: Yes, Your Honor.
MJ: Why do you say that?
[Appellant]: I believe it was obscene based on
the fact that it was an adult female with what
looked like a prepubescent female and exposing
her genitalia to the recording device and
basically masturbating the prepubescent child.
MJ: Do you believe that an average person
applying contemporary community standards
would find that video as a whole that it appeals
to the prurient interest in sex and portrays
sexual conduct in a patently offensive way?
[Appellant]: Yes, Your Honor.
MJ: Why do you say that?
[Appellant]: I would say yes based on the
generally accepted ideas of what obscene is and
what would be illegal conduct to do to a minor
child.
The Specification of Charge II, under Article 80,
UCMJ, did not directly include service-discrediting
conduct as an element. However, one element was
that the act was done with specific intent to commit
the offense of distribution of child pornography, and
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that attempted offense has the element of servicediscrediting conduct. The following is from the inquiry
into the Specification of Charge II:
[Appellant]: Sir, I do believe that [the video]
would be obscene just based on the facts that I
believed at the time that she was a minor under
the age of 18. That, you know, with the
definition of obscene depicting minors engaging
in sexually explicit conduct does not [sic] show
prurient interest in sex or sexual conduct and
is patently offensive that a reasonable person
would not find any literary, artistic, or political
value in the image that I possessed.
MJ: Do you believe your actions were of a
nature to bring discredit upon the Armed
Forces?
[Appellant]: Yes, Your Honor.
MJ: Why do you think that?
[Appellant]: Once again based on the idea that
service members are held in a higher standard
and the possession or distribution or attempted
distribution of child pornography would – is
service discrediting action.
....
MJ: Did you or do you admit that at the time
that you sent that video [to the undercover
agent] – the one we’ve been talking about where
[AO] exposed [her] pubic region after lying on
her bed . . . do you admit that you specifically
intended at that time to commit the offense of
distribution of child pornography?
[Appellant]: Yes, Your Honor.
65a
....
[Appellant]: . . . . [I]f [AO] had been under the
age of 18, I would have committed an offense of
distribution of child pornography.
b. Findings
The parties litigated Specification 2 of Charge I,
alleging indecent conduct. In closing argument, the
Defense argued the Government had not presented
evidence sufficient to prove the charged conduct was
service discrediting. In rebuttal, circuit trial counsel
argued as follows:
Your Honor, finally on service discrediting
piece. I just briefly want to touch on this.
Defense counsel cited that there is conduct that
[by its nature] is enough to be service
discrediting without having to put on specific
evidence. And Your Honor, sending another
dirty dad pictures, a video of how you’re
grooming your five-year-old daughter, that is
conduct that is of a nature to bring discredit
upon the Armed Forces. You heard testimony
from Agent [DA] that he was aware that
[Appellant] was in the Air Force. Your Honor,
this is service discrediting. This is indecent
conduct.
The Defense requested the military judge enter
special findings supporting the factual basis of a
finding of guilt. See R.C.M. 918(b). The Government
did not oppose, and the military judge granted the
request. The military judge entered findings on the
only litigated specification resulting in a finding of
guilty—Specification 2 of Charge I.
66a
In his written findings, the military judge made
several findings relating to SA DA’s chat conversation
with Appellant. He found that “the chat topic focused
on whether each other were actively sexually with
their daughters.” He found that “[Appellant] sent SA
[DA] a video of [Appellant’s] 5[-]year-old daughter,
[RP] sucking on his toe” with Appellant’s description
that “‘she out of the blue sucked on [Appellant’s] toe
like a pro.’” The military judge described the video as
“[RP] engaging in an action that is shockingly similar
to one engaging in oral sex on a male’s penis.” In this
video, the military judge thought RP “appear[ed] to be
even younger” than five years. The military judge also
made findings relating to Appellant’s comments about
neighborhood children planning to play on a water
slide at Appellant’s home. He found the “context of the
entirety of the conversation make clear that
[Appellant’s] statement indicated [Appellant’s]
present intent to record images or videos [of the
children] in some ‘perv’ or perverted way.”
Specifically in relation to the service-discrediting
element of that offense, 15 the military judge found:
(1) As part of SA [DA]’s investigation of
[Appellant’s] conduct in the private chat, he
learned that [Appellant] was a member of the
United States Air Force.
(2) After the . . . chat conversation between SA
[DA] and [Appellant] was complete, using IP
address
information
and
subscriber
information, investigators learned from the
15 The military judge prefaced his findings on this element with:
“In addition to the above findings [supporting the other
elements], the following findings support the [c]ourt’s conclusion
that this element has been met beyond a reasonable doubt.”
67a
internet service provider that [Appellant]
resided on-base at . . . Great Falls, [Montana].
2. Law
a. Article 134, UCMJ
The UCMJ makes criminal “all conduct of a nature
to bring discredit upon the armed forces . . . .” Article
134, UCMJ. The President defined the servicediscrediting clause as follows:
Conduct of a nature to bring discredit upon the
armed forces (clause 2). “Discredit” means to
injure the reputation of. This clause of Article
134 makes punishable conduct which has a
tendency to bring the service into disrepute or
which tends to lower it in public esteem.
Manual for Courts-Martial, United States (2019 ed.)
(MCM), pt. IV, ¶ 91.c.(3).
The United States Court of Appeals for the Armed
Forces (CAAF) concluded that for an offense charged
in violation of Clause 2 of Article 134, UCMJ, “proof of
the conduct itself may be sufficient for a rational trier
of fact to conclude beyond a reasonable doubt that,
under all the circumstances, it was of a nature to bring
discredit upon the armed forces.” United States v.
Phillips 70 M.J. 161, 163 (C.A.A.F. 2011). The CAAF
recently reaffirmed its holding in Phillips. See United
v. Wells, ___ M.J. ___, No. 23-0219, 2024 CAAF LEXIS
552, at *12 (C.A.A.F. 24 Sep. 2024) (“Consistent with
our precedent, we reiterate that whether any given
conduct violates Clause 2 is a question for the trier of
fact to determine, based upon all the facts and
circumstances; it cannot be conclusively presumed
from any particular course of conduct.”).
68a
In Heppermann, our court addressed servicediscrediting conduct as the terminal element:
“[T]he degree to which others became aware of
the accused’s conduct may bear upon whether
the conduct is service discrediting,” but actual
public knowledge is not a prerequisite. “The
trier of fact must determine beyond a
reasonable doubt that the conduct alleged
actually occurred and must also evaluate the
nature of the conduct and determine beyond a
reasonable doubt that [the appellant]’s conduct
would tend to bring the service into disrepute if
it were known.”
82 M.J. at 801 (alterations in original) (quoting
Phillips, 70 M.J. at 165, 166) (additional citation
omitted).
The President also promulgated elements and
definitions for the offenses of possession and
distribution of child pornography under Article 134,
UCMJ, and the offense of attempt under Article 80,
UCMJ. See MCM, pt. IV, ¶¶ 95.b, c; 4.b, c.
The elements of possession of child pornography,
as alleged in Specification 1 of Charge I, include that:
(1) Appellant knowingly and wrongfully possessed
child pornography; and (2) under the circumstances,
Appellant’s conduct was of a nature to bring discredit
upon the armed forces. See MCM, pt. IV, ¶¶
95.b.(1)(a), (b).
The elements of attempted distribution of child
pornography, as alleged in the Specification of Charge
II, include that: (1) Appellant did a certain overt act; 16
16 Appellant does not challenge the military judge’s recitation of
this element: “That in the continental United States on 17 May
69a
(2) the act was done with the specific intent to commit
the offense of distribution of child pornography, an
offense under the UCMJ; (3) the act amounted to more
than mere preparation; and (4) the act apparently
tended to effect the commission of the intended
offense. See MCM, pt. IV, ¶¶ 4.b.(1)–(4). Element (2)
required Appellant have the specific intent to commit
the offense of distribution of child pornography in
violation of Article 134, UCMJ. The elements of that
offense are: (1) the accused knowingly and wrongfully
distributed child pornography to another; and (2)
under the circumstances, the accused’s conduct was of
a nature to bring discredit upon the armed forces. See
MCM, pt. IV, ¶¶ 95.b.(3)(a), (b).
The elements of indecent conduct, as alleged in
Specification 2 of Charge I, include that: (1) Appellant
engaged in certain conduct, specifically “sending a
video of [RP], a child who had not yet obtained the age
of 12 years, sucking on the toe of [Appellant] to
another person while discussing the possibility of
engaging in lewd acts with [RP] and other female
children in the future;” (2) the conduct was indecent;
and (3) under the circumstances, Appellant’s conduct
was of a nature to bring discredit upon the armed
forces. See MCM, pt. IV, ¶¶ 104.b.(1)–(3).
b. Guilty Plea Inquiries
A military judge’s decision to accept a guilty plea
is reviewed for abuse of discretion, and questions of
law arising from the guilty plea are reviewed de novo.
United States v. Kim, 83 M.J. 235, 238 (C.A.A.F. 2023)
2021 you did a certain overt act that is attempt to knowingly and
wrongfully distribute child pornography.” We find no prejudice;
the record indicates the parties understood the charged overt act
was sending the video, not attempting to send the video.
70a
(citing United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008)).
“We give the military judge broad discretion in the
decision to accept a guilty plea because the facts are
undeveloped in such cases.” Id. (citing Inabinette, 66
M.J. at 322). “[I]n reviewing a military judge’s
acceptance of a plea for an abuse of discretion
appellate courts apply a substantial basis test: Does
the record as a whole show ‘a substantial basis in law
and fact for questioning the guilty plea.’” Inabinette,
66 M.J. at 322 (quoting United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991)).
“The plea inquiry must establish the factual
predicate for the plea,” including “a factual basis for
concluding that appellant’s conduct was service
discrediting” when so alleged under Article 134,
UCMJ. United States v. Jordan, 57 M.J. 236, 239–40
(C.A.A.F. 2002) (footnote omitted).
3. Analysis
a. Guilty Pleas
Appellant asserts the “military judge abused his
discretion by failing to illicit [sic] evidence of the
service discrediting nature of [Appellant’s] conduct
during the [guilty-plea] inquiry” into the offenses of
possession of child pornography (Specification 1 of
Charge I) and attempted distribution of child
pornography (Specification of Charge II). We disagree.
Appellant told the military judge, under oath, that
the possession of child pornography to which they
pleaded guilty would and did bring discredit upon the
armed forces. Appellant stated: “Knowing that
someone in uniform was actively looking for child
pornography involving teenagers and in doing so
71a
downloaded and continue to possess the video
described would bring discredit upon the armed
services.” But Appellant also stated their actions were
of a nature to bring discredit upon the armed forces
because “any member acting in such a way brings
discredit upon the Armed Forces.” (Emphasis added).
Appellant provided a factual basis for their
conduct being of a nature to bring discredit upon the
armed forces. In addition to the charged conduct of
simply possessing child pornography, Appellant
added that “actively looking for child pornography
involving teenagers” and downloading it would bring
discredit and “any member acting in such a way
brings discredit upon the Armed Forces.” Moreover, in
discussing its obscenity, Appellant admitted that the
“community” would find the video Appellant
possessed to “portray sexual conduct in a patently
offensive way” because it depicted “what would be
illegal conduct to do to a minor child.” These facts
support Appellant’s admissions that their possession
was of a nature to bring discredit upon the armed
forces under Article 134, UCMJ. See Jordan, 57 M.J.
at 239 (reviewing court can look to entire record to
determine whether a plea was provident).
Appellant stated they would have completed the
act of distribution of child pornography if the image
they sent to an undercover agent was of a person
under 18 years of age. Appellant admitted specifically
intending the elements of the attempted offense.
Regarding how they intended to commit servicediscrediting conduct, Appellant referred back to their
statement made in relation to the possession
specification: “Once again based on the idea that
service members are held in a higher standard [ ] the
possession or distribution or attempted distribution of
72a
child pornography would – is service discrediting
action.”
Appellant provided a factual basis for intending to
distribute child pornography, including intending
that their conduct would be of a nature to bring
discredit upon the armed forces. Appellant admitted
that “attempted distribution of child pornography
would – is service discrediting action.” (Emphasis
added). Appellant repeated that “service members are
held in a higher standard.” Regarding the obscenity of
this video, Appellant stated, “I believe the society
considers [child pornography] obscene” and Appellant
“hit send multiple times in sending videos to the
undercover agent.” These facts support Appellant’s
admissions that he attempted to distribute child
pornography, including intending to participate in
conduct of a nature to bring discredit upon the armed
forces under Article 134, UCMJ.
b. Findings
Appellant argues we should not apply Phillips,
asserting the CAAF in that case created an
“unconstitutional conclusive presumption”: whether
conduct meets the service-discrediting element “can
be presumed from the underlying misconduct.”
Appellant asserts “[n]o evidence at trial
constituted proof of the terminal element.” Yet
Appellant also asserts the military judge’s special
findings “found that evidence for the first two
elements of Article 134, [UCMJ,] indecent conduct,
satisfy the terminal element.” Appellant argues the
testimony of investigators was “insufficient to satisfy
the terminal element beyond a reasonable doubt
because no evidence was elicited . . . that they believed
73a
the conduct to be service discrediting or that their
view of the Armed Forces was altered in any way.”
We follow Wells and Heppermann, and determine
Appellant’s conviction for Specification 2 of Charge I
was not the result of an “unconstitutional conclusive
presumption.” The factfinder is not limited to
consideration of direct evidence of whether the
reputation of the Air Force was discredited, or would
have been discredited if the misconduct was known.
See Heppermann, 82 M.J. at 802. “[T]he military judge
could consider other evidence in determining whether
Appellant’s conduct tended to discredit the service.”
Id. (citing United States v. Anderson, 60 M.J. 548, 555
(A.F. Ct. Crim. App. 2004)) (additional citation
omitted).
We find the military judge had a sufficient basis
from the evidence introduced during the litigated
portion of the trial to determine beyond a reasonable
doubt that Appellant’s conduct charged in
Specification 2 of Charge I was of a nature to bring
discredit upon the armed forces. The evidence
demonstrated Appellant used an online chat platform
for fathers to communicate about engaging in
inappropriate acts with daughters, used that platform
to send a video of their daughter mimicking oral sex,
and discussed video recording other children in a
perverted way. Appellant did not know the person
with whom they chatted, and that person learned
Appellant was a member of the United States Air
Force. We conclude Appellant was not convicted
“through
an
unconstitutional
conclusive
presumption.”
74a
C. Indecent Conduct
Appellant asserts their acts charged as indecent
conduct under Article 134, UCMJ, amounted to
speech protected by the First Amendment.
Specifically, Appellant claims their language was not
obscene, 17 and therefore was protected speech, and
moreover, the Government failed to prove a
connection to the military environment. We find no
relief is warranted.
1. Additional Background
Specification 2 of Charge I reads, in part, that
Appellant:
Did . . . commit indecent conduct, to wit:
sending a video of [RP], a child who had not yet
obtained the age of 12 years, sucking on the toe
of [Appellant] to another person while
discussing the possibility of engaging in lewd
acts with [RP] and other female children in the
future . . . .
As this was a military judge-alone trial, the
military judge did not articulate elements and
definitions for the specification alleging indecent
conduct. However, in relation to Specification 1 of
Charge I—possession of child pornography to which
Appellant pleaded guilty—the military judge defined
“obscene” for Appellant as follows:
Obscene means that the average person
applying contemporary community standards
would find that the visual images depicting
minors engaging in sexually explicit conduct
Appellant does not directly assert the military judge
misapprehended the meanings of “indecent” or “obscene.”
17
75a
when taken as a whole appeal to the prurient
interest in sex and portrays sexual conduct in a
patently offensive way that a reasonable person
would not find serious literary, artistic,
political, or scientific value in the visual images
depicting minors in engaging in sexually
explicit conduct.
In support of this assignment of error, where
Appellant argues that “[o]bscenity is a category of
unprotected speech,” Appellant provides a similar
definition of obscene:
(1) [An] average person, applying contemporary
community standards would find [the speech], taken
as a whole, appeals to the prurient interest;
(2) [The speech] depicts or describes, in a patently
offensive way, sexual conduct specifically defined by
applicable state law; and
(3) [The speech], taken as a whole, lacks serious
literary, artistic, political, or scientific value.
(Alterations in original) (citing Miller v. California,
413 U.S. 15, 24 (1973)).
2. Law
We review de novo whether a statute is
unconstitutional as applied. United States v. Goings,
72 M.J. 202, 205 (C.A.A.F. 2013) (citation omitted).
Article 134, UCMJ, prohibits “conduct of a nature
to bring discredit upon the armed forces.” 10 U.S.C. §
934. Among the offenses the President enumerated
under Article 134, UCMJ, is indecent conduct. See
United States v. Rocha, 84 M.J. 346, 350 (C.A.A.F.
2024) (citing MCM, pt. IV, ¶ 104.b). The President
explained: ‘“Indecent’ means that form of immorality
76a
relating to sexual impurity which is grossly vulgar,
obscene, and repugnant to common propriety, and
tends to excite sexual desire or deprave morals with
respect to sexual relations.” MCM, pt. IV, ¶ 104.c.(1).
The CAAF “has long held that ‘indecent’ is
synonymous with obscene.” United States v. Meakin,
78 M.J. 396, 401 (C.A.A.F. 2019) (citation omitted). “It
is well-settled law that obscenity is not speech
protected by the First Amendment, regardless of the
military or civilian status of the ‘speaker.’” Id.
(citations omitted). Speech conveying “‘repugnant
sexual fantasies involving children’” that “appealed,
and was intended to appeal, to the prurient interest”
is not protected speech. Id. (citation omitted).
In Meakin, the CAAF noted the appellant’s
“obscenity was not contained within his home for
consideration within his own mind” but instead the
appellant “transmitted his written obscenities” to
“individuals whose true names he did not even know
and whom he had not met.” Id. at 402–03. The CAAF
found such speech was not constitutionally protected.
Id. at 403.
In cases where an appellant was convicted for
speech charged as service discrediting under Article
134, UCMJ, courts first determine whether the speech
“is protected speech under the First Amendment,”
then analyze “whether the Government has shown a
reasonably direct and palpable connection between
the speech and the military mission or military
environment.” United States v. Wilcox, 66 M.J. 442,
449 (C.A.A.F. 2008). The Government must “prove a
direct and palpable connection to the military mission
or environment not only when it is clear that the First
Amendment would protect speech in a civilian
77a
context, but also in cases . . . where a court cannot
determine whether the speech would be protected.”
United States v. Grijalva, 84 M.J. 433, 2024 CAAF
LEXIS 358, at *13–14 (C.A.A.F. 26 Jun. 2024)
(citation omitted).
Categories of speech not protected by the First
Amendment
include: (1) incitement to imminent lawless
action; (2) obscenity; (3) defamation; (4) speech
integral to criminal conduct; (5) fighting words;
(6) child pornography; (7) fraud; (8) true
threats; and (9) speech presenting some grave
and imminent threat the Government has the
power to prevent.
United States v. Smith, ___ M.J. ___, No. 23-0207,
2024 CAAF LEXIS 527, at *9 (C.A.A.F. 13 Sep. 2024)
(citation omitted).
3. Analysis
Appellant maintains “that their purely private
communications with another adult did not constitute
obscenity.” Appellant also questions the CAAF’s
holdings that “indecent” is synonymous with
“obscene.”
First, we note Appellant fails to explain why their
conduct was not obscene even under their own
definition of obscene speech. That is, Appellant does
not assert the language did not (1) appeal to the
prurient interest, (2) depict or describe, in a patently
offensive way, sexual conduct with a minor, and (3)
lack serious literary, artistic, political, or scientific
value.
The Government argues “the video of Appellant’s
daughter sucking on Appellant’s toe is obscene in and
78a
of itself.” Additionally, the Government argues
Appellant’s conversation with “a stranger” focused on
sex, incest, and children, and Appellant’s intention to
record children in some “perverted way” all support a
finding of obscenity.
We reject Appellant’s argument that Appellant’s
language was not obscene because it consisted of
“purely private communications with another adult.”
Similar to the CAAF’s findings in Meakin, Appellant’s
“obscenity was not contained within his home for
consideration within his own mind” but instead
“transmitted” to SA DA, an “individual[ ] whose true
name[ ] he did not even know and whom he had not
met.” Id. at 402–03. We find the CAAF’s
considerations of “indecent” and “obscene” in Meakin
to be controlling in this case. And as the CAAF did in
Meakin, we find Appellant’s speech was not
constitutionally protected. Id. at 403.
Finally, we easily resolve against Appellant their
argument that analysis under Wilcox would result in
relief. We found Appellant’s speech was not
constitutionally protected speech. Even if that
determination were a close call, we discern a direct
and palpable connection to the military environment
in
this
case.
Appellant’s
speech
included
communications about Appellant’s daughter, a
military dependent, and was accompanied with a
video of her sucking Appellant’s toe that Appellant
recorded in their shared home on a military
installation.
We find Appellant was not convicted for speech
protected by the First Amendment.
79a
D. Conditions of Confinement
Appellant asserts the “Government’s failure to
provide [Appellant] with any gender dysphoria
treatment for three years amounts to deliberate
indifference of a serious medical need” and, as a
result, Appellant’s “right against cruel and unusual
punishment was violated.” Appellant’s requested
remedy is the sentence to a punitive discharge be “set
aside or otherwise disapproved.” We find Appellant
has failed to demonstrate entitlement to relief under
United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F.
2006), and deny relief.
1. Additional Background
Appellant was confined first at Malmstrom AFB,
Montana. Pretrial confinement began on 8 July 2021,
and post-trial confinement began on 28 September
2022. Appellant was transferred to the Navy
Consolidated Brig (NAVCONBRIG), Charleston,
South Carolina, in December 2022. Appellant’s
informal complaint during the end of their time at
NAVCONBRIG provides some history of Appellant’s
requests for treatment there.
On 18 June 2024, Appellant filed an informal
complaint pursuant to Article 138, UCMJ, 10 U.S.C. §
938, and Air Force Instruction (AFI) 51-505,
Complaints of Wrongs under Article 138, Uniform
Code of Military Justice (Apr. 2019), to the
commander of the Air Force Security Forces Center
(AFSFC). Appellant alleged in this complaint that
despite repeated requests that they “receive medical
care to manage the symptoms of [their] GD [(gender
dysphoria)],” Appellant “ha[s] not received the
requisite medical care.” Appellant specifically
requested hormone therapy. Appellant asserted
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denial of treatment “caused [Appellant] significant
harm, including immense clinical distress associated
with untreated GD.”
Appellant attached to their informal complaint
medical information, treatment requests, confinement
clinic notes, and treatment plan memoranda. One
document is a memo from Lieutenant Colonel (Lt Col)
JS, the medical director of the Transgender Health
Medical Evaluation Unit (THMEU) at Joint Base San
Antonio-Lackland, Texas, to Appellant, dated 21
September 2023. The THMEU evaluated Appellant’s
diagnosis of GD from 1 June 2022, confirmed the
diagnosis on 24 August 2023, and signed a medical
treatment plan (MTP) on 21 September 2023. The
plan included “Gender Affirming Hormone Therapy
(GAHT) with an estimated start date of October
2023.” The memo stated Appellant was required to
obtain commander concurrence. The MTP identifies
Appellant’s unit and commander as those at the time
of the court-martial at Malmstrom AFB, not a
confinement commander. Appellant signed a memo
notifying the AFSFC Commander of the MTP on 30
January 2024. 18
The earliest-dated confinement treatment request
Appellant attached to their Article 138, UCMJ,
request is dated 7 September 2023, shortly before the
MTP was issued. It shows Appellant requested an
“appointment to discuss medication, and schedule
next appointment with them,” and the response
indicated Appellant discontinued a medication and
they were “pending action from THMEU.” On 28
September 2023, Appellant requested an “update on
18 Our review of the record does not indicate whether this memo
was received.
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ETP [(exception to policy)] letters” and “medication
start date” as referenced in the MTP. The response
was another note to follow up with THMEU. On 11
October 2023, Appellant asked again about the
medication start date. The response stated
Appellant’s “paperwork has been forwarded to the Air
Force Confinement and Corrections legal team for
review[;] this process may take some time.” Appellant
reached out to the NAVCONBRIG Commander and
the “Air Force Confinement Legal Team” in November
and December 2023 respectively, urging swift action
to approve the MTP.
Appellant made a request on 14 March 2024 “to
speak to Dr. C about medication changes” and “other
mental health concerns,” and that they were still
awaiting commander responses on the MTP. The
response was Appellant had an appointment with the
doctor and was provided the status of the MTP.
On 21 April 2024, Appellant wanted to “discuss
changes to MTP & resubmit to commander for
signature.” On 28 May 2024, Appellant requested an
“update of approval for medical and treatment plan,”
adding “currently 39 days till release from
confinement.” The response was that it was still
“pending with Air[ F]orce legal.”
The AFSFC Commander dismissed Appellant’s
informal complaint on 1 July 2024. The commander
cited AFI 51-505, ¶ 1.3.3.1, to explain that “acts or
omissions that were not initiated, carried out or
approved by your commander are not eligible for
Article 138[, UCMJ,] review.” He continued, stating:
I was not aware of your diagnosis or request for
GD treatment until I received an email from
your Defense Counsel on 18 June 2024. Not
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only did I not make any act or omission with
respect to your requests for treatment, but I am
also not aware of any other commander that
took any action with respect to your requests
for treatment.
Appellant has not moved to attach a declaration for
this court to consider Appellant’s personal claims of
denial of treatment.
We granted the Government’s motion to attach
three declarations addressing Appellant’s claims. The
declaration from the assistant noncommissioned
officer in charge of the confinement facility at
Malmstrom AFB states they have no records “related
to [Appellant’s] gender dysphoria while [Appellant]
was in confinement” there. However, Appellant “was
sent to mental health many times under [Appellant’s]
own request.”
Another declaration is from “the main contact for
coordinating
[Appellant’s]
psychiatric
and
transgender health care,” Technical Sergeant (TSgt)
KD. 19 She asserted Appellant “was not denied medical
treatment of any kind, including for gender
dysphoria.” She outlined in detail the efforts and
challenges in getting Appellant GD healthcare. 20 She
explained that “[g]ranting an Exception to Policy for
dress and appearance and for use of facilities, in
addition to receiving hormonal treatment to
transition to female, while at an all-male Brig,
19 Technical Sergeant KD was the staff member who responded
to Appellant’s confinement treatment requests.
20 She noted Appellant “received treatment and counseling on
numerous occasions from the brig psychiatrist for other mental
health concerns and medication that was separate from his
gender dysphoria.”
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required the need for guidance from both the Air Force
and the Navy.” She worked with Appellant to arrange
“a telehealth kiosk [for Appellant] to have confidential
telehealth appointments required by . . . THMEU,”
because Appellant was “the first prisoner to interact
with THMEU at NAVCONBRIG.” THMEU and
NAVCONBRIG started making arrangements for this
care as early as January 2023. At different points,
Appellant told TSgt KD they did not want to pursue
the exception to policy, but did want hormone therapy.
TSgt KD does not state whether the MTP was ever
approved; the last entry in her timeline is 27 June
2024, when Appellant was notified “the Brig offered
him the ability to grow out hair and nails.”
The third declaration is from Mr. EO, Director, Air
Force Confinement and Corrections. 21 He first
explained Appellant’s confinement release dates:
[Appellant] declined to complete or participate
in necessary sex offender treatment. He was
originally set to be released in Dec[ember 20]23
to mandatory supervised release (MSR). He
declined to provide a suitable reintegration to
society plan prior to the Dec[ember 20]23
release. He was found “At Fault” by the Air
Force Clemency and Parole Board, for not
providing suitable reintegration plan[;] this
action pushed his confinement release date out
until 6 Jul[y 20]24.
Mr. EO then also described Air Force coordination of
Appellant’s requests for GD treatment.
21 Mr. EO’s office appears to be the “Legal” office referenced by
TSgt KD.
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Prior to [Appellant’s court-m]artial, he was
seeking medical care for potential Gender
Dysphoria (GD). He was medically cleared to
seek further specific GD treatment in
Aug[ust]/Sep[tember
20]23.
[Appellant]
requested to continue down the GD medical
route in Oct[ober 20]23 which is when my office
first learned of the GD medical issue. His
paperwork was incomplete and sent back to
NAVCON Brig Charleston for [Appellant] to
update.
....
[Appellant] re-accomplished his request for
transgender treatment paperwork Jan[uary
20]24 and legal advice was sought again this
time through Lt Col W[,] AFIMSC[ 22 legal
advisor]; Lt Col W[ ] suggested contacting the
Transgender Health Medical Evaluation Unit
(THMEU) Medical Lead Lt Col [J]S for
guidance. Lt Col [J]S did not provide guidance
as to whether the member needed to
immediately begin the GD medication and
understood my initial concerns for the member
to start treatment while in custody. In fact, at
the time of the THMEU approval for GD
treatment, it was not known by the THMEU
that [Appellant] was in confinement. The
THMEU team did not know the member had
been charged with sex crimes against his own
22 The Air Force Security Forces Center is a subordinate unit of
the Air Force Installation and Management Support Center. Air
Force Security Forces Center, AIR FORCE INSTALLATION &
MISSION SUPPORT CENTER, https://www.afimsc.af.mil/
About-Us/ (last visited 24 Sep. 2024).
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child. My concern was if the member started
treatment in confinement and had a break due
to release from confinement. Then further
delay in constant care/medication to the
member that he would be at risk medically
causing a hardship or harm. Additional
concerns for me were NAVCON Brig
Charleston was not a suitable location to begin
GD transition, appropriate medication to be
given could not be confirmed available at
NAVCON Brig Charleston, NAVCON Brig
Charleston would be forced to house
[Appellant] in segregated housing, and finally
the member had a short time left on their
sentence. Based on the circumstance, the
member’s request was never denied, it was
pending legal and further medical review.[23]
....
[The AFSFC Commander] approved for
[Appellant] to initiate further transgender
treatment provided by Tricare [medical
insurance] once he released from confinement
and set up residence in the civilian populace.
Like Technical Sergeant KD, Mr. EO noted the
novelty of Appellant’s situation. “There is no
[Department of Defense] guidance with respect to GD
diagnosis within the military confinement world . . . .”
2. Law
Under this court’s Article 66(d), UCMJ, 10 U.S.C.
§ 866(d), mandate to approve only so much of the
sentence as we find “correct in law,” we cannot affirm
23 On this last point, for purposes of analysis we consider failure
to approve Appellant’s request to be a de facto denial.
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“an unlawful sentence, such as one that violates the
prohibition against cruel and unusual punishment in
the Eighth Amendment and Article 55, UCMJ[, 10
U.S.C. § 855].” United States v. Jessie, 79 M.J. 437,
440 (C.A.A.F. 2020) (citing United States v. Erby, 54
M.J. 476, 478 (C.A.A.F. 2001)).
“In general, we apply the [United States] Supreme
Court’s interpretation of the Eighth Amendment to
claims raised under Article 55, UCMJ, except where
legislative intent to provide greater protections under
Article 55, UCMJ, is apparent.” United States v. Gay,
74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015) (citation
omitted), aff’d, 75 M.J. 264 (C.A.A.F. 2016). To
demonstrate a violation of the Eighth Amendment, an
appellant must show:
(1) an objectively, sufficiently serious act or
omission resulting in the denial of necessities;
(2) a culpable state of mind on the part of prison
officials amounting to deliberate indifference to
[his] health and safety; and (3) that he has
exhausted the prisoner-grievance system . . .
and that he has petitioned for relief under
Article 138, UCMJ . . . .
Lovett, 63 M.J. at 215 (first ellipsis in original)
(internal quotation marks and citations omitted).
“The Constitution does not mandate comfortable
prisons, but neither does it permit inhumane ones.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal
quotation marks and citation omitted).
“Denial of adequate medical attention can
constitute an Eighth Amendment or Article 55[,
UCMJ,] violation.” United States v. White, 54 M.J.
469, 474 (C.A.A.F. 2001) (citing United States v.
Sanchez, 53 M.J. 393, 396 (C.A.A.F. 2000)). However,
87a
the standard is “reasonable” medical care rather than
“perfect” or “optimal” care. Id. at 475. (citation
omitted). The Eighth Amendment prohibits
“deliberate indifference to serious medical needs of
prisoners,” whether manifested by prison officials
“intentionally denying or delaying access to medical
care or intentionally interfering with the treatment
once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104–
05 (1976) (citations omitted); see also Ziglar v. Abbasi,
582 U.S. 120, 148 (2017) (noting the United States
Supreme Court “has long made clear the standard for
claims alleging failure to provide medical treatment to
a prisoner—‘deliberate indifference to serious medical
needs’” (quoting Estelle, 429 U.S. at 104)). Thus, to
support an Eighth Amendment or Article 55, UCMJ,
claim of inadequate medical treatment, an appellant
must allege both deliberate indifference and “that he
suffered, or was put at risk of suffering, serious harm.”
United States v. Pullings, 83 M.J. 205, 213–14
(C.A.A.F. 2023) (citing Estelle, 429 U.S. at 104, 106).
“Deliberate indifference” requires that the responsible
official must be aware of an excessive risk to an
inmate’s health or safety and disregard that risk.
Farmer, 511 U.S. at 837. “[I]t is enough that the
official acted or failed to act despite his knowledge of
a substantial risk of serious harm.” Id. at 842 (citation
omitted). One may infer “a prison official knew of a
substantial risk from the very fact that the risk was
obvious.” Id. (citation omitted). However, “prison
officials who lacked knowledge of a risk cannot be said
to have inflicted punishment . . . .” Id. at 844.
“A [confinee] must seek administrative relief prior
to invoking judicial intervention to redress concerns
regarding post-trial confinement conditions.” United
States v. Wise, 64 M.J. 468, 471 (C.A.A.F. 2007)
88a
(citation omitted); see also White, 54 M.J. at 472. “This
generally means that the prisoner will have
exhausted the detention center’s grievance system
and petitioned for relief under Article 138, UCMJ.”
United States v. Henry, 76 M.J. 595, 610 (A.F. Ct.
Crim. App. 2017). “Exhaustion requires [an a]ppellant
to demonstrate that two paths of redress have been
attempted, each without satisfactory result,”
specifically, the prisoner-grievance system and the
Article 138, UCMJ, complaint process. Wise, 64 M.J.
at 471.
3. Analysis
We note at the outset that we do not equate
Appellant’s Article 138, UCMJ, informal complaint to
an affidavit or declaration. 24 The factual assertions
Appellant made in that complaint are neither sworn
nor made under penalty of perjury. We have no issue
of “conflicting affidavits submitted by the parties” to
resolve. See United States v. Fagan, 59 M.J. 238, 242
(C.A.A.F. 2004) (citing United States v. Ginn, 47 M.J.
236, 243 (C.A.A.F. 1997)).
On appeal, Appellant claims they were denied any
treatment for gender dysphoria while in confinement,
to include “hormone and cognitive/behavioral
therapy.” First, we find support lacking for
Appellant’s contention that he requested but was
denied cognitive or behavioral therapy. TSgt KD
noted Appellant repeatedly requested hormone
therapy, but neither her declaration nor Appellant’s
24 See JT. CT. CRIM. APP. R. 23(b)(2) (“If a party desires to
attach a statement of a person to the record for consideration by
the Court on any matter, such statement shall be made either as
an affidavit or as an unsworn declaration under penalty of
perjury pursuant to 28 U.S.C. § 1746.”).
89a
confinement treatment requests indicate Appellant
requested cognitive or behavioral therapy. Similarly,
we find support lacking for Appellant’s contention
that while confined at Malmstrom AFB Appellant
requested but was denied cognitive or behavioral
therapy, or requested and was denied any medical or
mental health care. The declarations indicate
Appellant was able to receive mental health
treatment while confined at both at Malmstrom AFB
and NAVCONBRIG.
It appears Appellant’s primary claim is that the
treatment plan—the MTP—addressing hormonal
medication was not approved and implemented. Such
claim is supported by the record; however, to prevail
on a claim under the Eighth Amendment and Article
55, UCMJ, an appellant must satisfy all three prongs
of Lovett. Appellant has not demonstrated a culpable
state of mind on the part of prison officials. Lovett, 63
M.J. at 215. Moreover, we conclude from our review of
the declarations that officials were not indifferent to
Appellant’s health or safety. Id. TSgt KD worked with
other confinement officials and Appellant for over a
year for Appellant to receive medical and mental
health care during their confinement. Mr. EO claimed
his office’s actions were motivated in part to ensure
Appellant’s health and safety.
Appellant has failed to demonstrate that they
“suffered, or was put at risk of suffering, serious
harm,” Pullings, 83 M.J. at 213–14, or that prison
officials were “aware of an excessive risk to an
inmate’s health or safety and disregard[ed] that risk,”
Farmer, 511 U.S. at 837. In Appellant’s Article 138,
UCMJ, informal complaint, Appellant asserted he
suffered “immense clinical distress associated with
untreated GD.” However, the record does not support
90a
this assertion that Appellant suffered serious harm.
Confinement officials had concerns about the
availability of GD-treatment medications throughout
Appellant’s time in confinement, and whether a break
in treatment due to release from confinement may
cause Appellant harm medically. Lt Col JS at THMEU
understood these concerns as relayed by Mr. EO, and
did not advise that Appellant should begin GD
medication immediately. More importantly, the
record does not support a conclusion that confinement
officials knew any earlier than 18 June 2024—the
date of the informal complaint—that Appellant was
suffering or could suffer serious harm. 25
Appellant has not satisfied all three prongs of
Lovett for their complaints of Eighth Amendment and
Article 55, UCMJ, violations. We find no relief is
warranted.
III. CONCLUSION
The findings and sentence as entered are correct in
law and fact, and no error materially prejudicial to the
substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings and sentence are
AFFIRMED.
For purposes of our analysis, we consider the AFSFC
Commander a confinement official. In his reply to the informal
complaint, the AFSFC Commander stated he “was not aware of
[Appellant’s] diagnosis or request for GD treatment until [he]
received an email from [Appellant’s] Defense Counsel on 18 June
2024.”
25
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FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.