Petition for Writ of Certiorari — Jonatan O. RosarioMartinez, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

JONATAN O. ROSARIO-MARTINEZ; LEO J. NAVARRO

AGUIRRE; JESUS MARTINEZ; ALEXANDER L. DRISKILL,

Petitioners,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Armed Forces

__________

PETITION APPENDIX

__________

FREDERICK J. JOHNSON

DWIGHT H. SULLIVAN

United States Air Force

Appellate Defense Div.

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

240-612-4770

KYLE W. RODEWALD

Counsel of Record

KATHERINE E. MALCOLM

Navy-Marine Corps

Appellate Defense Div.

1254 Charles Morris St., S.E.

Building 58, Suite 100

Washington, DC 20374

(202) 685-7296

Kyle.w.rodewald.mil@us.navy.mil

Counsel for Petitioners

ia

APPENDIX

TABLE OF CONTENTS

Court of Appeals for the Armed Forces

Opinion,

United

States

v.

RosarioMartinez, No. 25-0102 (Jun.

2, 2026)................................................................. 1a

Navy-Marine Corps Court of Criminal

Appeals Opinion, United States v.

RosarioMartinez, No. 202300154

(Dec. 18, 2024) ................................................... 31a

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Driskill, No.

26-0087/AF (Apr. 16, 2026) ............................... 56a

Air Force Court of Criminal Appeals

Opinion, United States v. Driskill, No.

ACM 39889 (rem) (Nov. 14, 2025) .................... 57a

Court of Appeals for the Armed Forces

Opinion, United States v. Driskill, No.

23-0066 (Mar. 4, 2024) ...................................... 89a

Air Force Court of Criminal Appeals

Opinion, United States v. Driskill, No.

ACM 39889 (f rev) (Aug. 23, 2022) ................. 111a

Air Force Court of Criminal Appeals

Opinion, United States v. Driskill, No.

ACM 39889 (Dec. 14, 2021) ............................. 162a

iia

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Martinez,

No. ACM 39903 (Mar. 25, 2026) ..................... 174a

Air Force Court of Criminal Appeals

Opinion, United States v. Martinez,

No. ACM 39903 (reh)(f rev) (Oct. 31,

2025)................................................................. 175a

Air Force Court of Criminal Appeals

Remand Order, United States v.

Martinez, No. ACM 39903 (reh) (Dec.

16, 2024)........................................................... 212a

Air Force Court of Criminal Appeals

Opinion, United States v. Martinez,

No. ACM 39903 (f rev) (May 31, 2022)

.......................................................................... 217a

Air Force Court of Criminal Appeals

Opinion, United States v. Martinez,

No. ACM 39903 (May 21, 2021) ...................... 330a

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Navarro

Aguirre, No. 26-0100/AF (Feb. 25,

2026)................................................................. 341a

Air Force Court of Criminal Appeals

Opinion, United States v. Navarro

Aguirre, No. ACM 40354 (rem) (Nov

25, 2025) ........................................................... 342a

iiia

Court of Appeals for the Armed Forces

Opinion, United States v. Navarro

Aguirre, No. 23-0146 (Jul 24, 2025) ................ 351a

Air Force Court of Criminal Appeals

Opinion, United States v. Navarro

Aguirre, No. ACM 40354 (Mar 11,

2024)................................................................. 380a

Constitutional, Statutory,

Provisions Involved

and

Regulatory

1. Due Process Clause of the Fifth

Amendment, U.S. CONST. amend. V .............. 412a

2. Jury Trial Clause of the Sixth

Amendment, U.S. CONST. amend. VI ............. 412a

3. Article 16, Uniform Code of Military

Justice, 10 U.S.C. § 816 ................................... 412a

4. Article 51(a), Uniform Code of

Military Justice, 10 U.S.C. § 851(a) ................ 414a

5. Article 52(a), Uniform Code of

Military Justice, 10 U.S.C. § 852(a) ................ 414a

6. Rule for Courts-Martial 501(a),

Manual for Courts-Martial, United

States (2024 ed.) .............................................. 415a

iva

7. Rule for Courts-Martial 921(c),

MANUAL

FOR

COURTS-MARTIAL,

UNITED STATES (2024 ed.) ............................... 416a

1a

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

UNITED STATES

Appellee

v.

Jonatan O. ROSARIOMARTINEZ, Corporal

United States Marine Corps, Appellant

No. 25-0102

Crim. App. No. 202300154

Argued November 19, 2025—Decided June 2, 2026

Military Judges: Ryan C. Lipton (arraignment),

Benjamin A. Robles (motions), and Adam L.

Workman (trial and post-trial)

For Appellant: Captain Katherine Malcolm, USMC

(argued).

For Appellee: Lieutenant Erin H. Bourneuf, JAGC,

USN (argued); Major Mary Claire Finnen, USMC, and

2a

Brian K. Keller, Esq. (on brief); Colonel Iain D.

Pedden, USMC.

Judge HARDY delivered the opinion of the Court, in

which Chief Judge OHLSON, Judge SPARKS, and

Judge JOHNSON joined. Judge MAGGS filed a

separate opinion concurring in the judgment.

———————

Judge HARDY delivered the opinion of the Court.

The Government charged Appellant with two

specifications of sexual assault under Article 120,

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

920. A general court-martial consisting of an eightmember panel with enlisted representation acquitted

Appellant of the first specification but found

Appellant guilty of the second specification. Based on

information learned during a “hot wash” session1 with

the senior panel member, Captain (Capt) Sierra,

Appellant’s military trial defense counsel came to

believe that Appellant’s panel misunderstood how

nonunanimous verdicts and hung juries work in the

military justice system and erroneously thought that

a minimum of six votes were required to convict or to

acquit Appellant on each charge. Appellant’s defense

counsel obtained an affidavit from Capt Sierra

affirming this misunderstanding and further stating

that the panel initially conducted several rounds of

1 A hot wash is a term used by military personnel for an informal,

post-trial meeting between participants in a court-martial to

review the high and low points of the proceedings. United States

v. RosarioMartinez, 85 M.J. 535, 540 n.11 (N-M. Ct. Crim. App.

2024).

3a

voting where three or more members voted to find

Appellant not guilty of the second specification. The

affidavit went on to state that if the members had

properly understood the voting rules, Capt Sierra

would have filled out the findings worksheet to reflect

findings of not guilty for both specifications.

After obtaining Capt Sierra’s affidavit, Appellant’s

defense counsel filed a post-trial motion asking the

military judge to correct the verdict pursuant to Rules

for Court-Martial (R.C.M.) 922 and 1104. After

receiving briefs from both parties and conducting a

post-trial Article 39(a) hearing,2 the military judge

issued a written ruling declining to consider Capt

Sierra’s affidavit and denying Appellant’s motion. The

United States Navy-Marine Corps Court of Criminal

Appeals (NMCCA) affirmed. RosarioMartinez, 85 M.J.

at 545.

On appeal to this Court, we specified the following

issue:

Did the military judge err in finding the

affidavit of the senior member to be

incompetent evidence under MRE 606(b)(2)(C)

and in denying Appellant’s motion for

appropriate relief to correct an error in the

findings worksheet?

See Article 39(a), 10 U.S.C. § 839(a) (authorizing hearings

outside the presence of the members for specific purposes).

2

4a

United States v. RosarioMartinez, 85 M.J. 463

(C.A.A.F. 2025) (order granting review).

For the reasons set forth below, we hold that the

military judge did not abuse his discretion when he

declined to consider Capt Sierra’s affidavit after

finding that it was not competent evidence. We

therefore affirm the findings and sentence as affirmed

by the NMCCA.

I. Background

The Government charged Appellant with two

specifications of sexual assault under Article 120,

UCMJ, following the victim’s report that Appellant

had assaulted her in her barracks room after the two

had gone out drinking together. The two specifications

were pleaded in the alternative based on

contingencies of proof. The first specification was

charged under the theory that Appellant performed a

sexual act upon the victim when he knew or

reasonably should have known that she was asleep.

The second specification was charged under the

theory that Appellant performed a sexual act upon the

victim without her consent.

A. Appellant’s Court-Martial

Appellant’s general court-martial consisted of

eight members with enlisted representation.

5a

Following the presentation of evidence, the military

judge instructed the members on voting, including the

following:

The concurrence of at least three-fourths of the

members present when the vote is taken is

required for any finding of guilty. Since we

have eight members, that means six members

must concur in any finding of guilty.

If you have at least six votes of guilty of any

offense, then that will result in a finding of

guilty for that offense. If fewer than six

members vote for a finding of guilty, then your

ballot resulted in a finding of not guilty. You

may reconsider any finding prior to its being

announced in open court. However, after you

vote, if any member expresses a desire to

reconsider any finding, open the court and the

president should announce only that a

consideration of a finding has been proposed.

(Emphasis added.) Neither party objected to the

instructions or requested any additional instructions.

The military judge did not provide a written copy of

the voting instructions to the panel.

The panel deliberated for two days. On two

separate occasions, the members requested to reopen

the court-martial, but neither of these occasions

concerned questions about the findings worksheet or

the panel instruction on voting. After the panel

6a

reached a verdict, the military judge reviewed the

findings worksheet and asked Capt Sierra to

announce the panel’s findings. Capt Sierra stated that

the court-martial found Appellant not guilty of the

first specification, but guilty of the second

specification—sexual assault without consent—under

Article 120, UCMJ. After Appellant elected to be

sentenced by the military judge, the military judge

excused the panel and instructed the members not to

discuss their deliberations with anyone unless

ordered to do so by a court. That same day, the

military judge sentenced Appellant to a dishonorable

discharge and eighteen months of confinement.

B. Capt Sierra’s Affidavit

In the days following trial, Appellant’s two defense

counsel conducted a hot wash with Capt Sierra, the

senior panel member, to receive feedback on their

advocacy. During the conversation, Capt Sierra asked

how the military justice system handles hung juries.

Appellant’s counsel explained to Capt Sierra that

hung juries do not exist in the military, and that when

fewer than three-quarters of the panel vote to convict,

the result is an acquittal. Upon hearing this, Capt

Sierra said “ ‘[w]ell, then we acquitted your client’ ” or

words to that effect. Capt Sierra further told

Appellant’s counsel that the panel had conducted

multiple votes in the absence of any vote to

reconsider—several of which rendered fewer than six

votes for guilty—before the panel finally reached six

votes in favor of finding Appellant guilty of the second

specification. At this point, Appellant’s counsel ended

7a

their conversation with Capt Sierra and sought

guidance from their supervisors.

After being encouraged by their supervisors to

seek additional information from Capt Sierra,

Appellant’s counsel met with Capt Sierra again the

next day. At this second meeting, Capt Sierra

executed an affidavit describing what he had shared

with defense counsel the day before. The affidavit

stated that: (1) the members had a mistaken understanding of the military judge’s instructions and

believed that six votes were required either to convict

or to acquit Appellant; (2) several rounds of votes had

been taken by the panel using secret ballots with three

or more members voting to find Appellant not guilty

of the second specification; and (3) if the members

properly understood the voting rules, Capt Sierra

would have filled out the findings work-sheet to reflect

findings of not guilty for both specifications.3 The

affidavit ended with a request by Capt Sierra to

“correct the findings worksheet to accurately reflect

the correct findings of the panel.”

C. Appellant’s Motion for Appropriate

Relief

A few days after his defense counsel obtained the

affidavit, Appellant filed a motion for appropriate

relief asserting that the finding of guilty announced

by Appellant’s court-martial was erroneous. In his

A redacted copy of the affidavit is attached to this

opinion in the Appendix.

3

8a

motion, Appellant asked the military judge to correct

the alleged error in the members’ findings worksheet

as revealed by Capt Sierra. Although Military Rule of

Evidence (M.R.E.) 606(b)(1) generally prohibits a

military judge from receiving a member’s affidavit

about the panel’s deliberations, Appellant argued that

Capt Sierra’s affidavit qualified as competent

evidence that the military judge could consider under

the rule’s exception for testimony about a mistake in

entering the findings on the findings form. See M.R.E.

606(b)(2)(C). Appellant further argued that the

military judge had the authority to correct the error

on the findings form under both R.C.M. 922 and

R.C.M. 1104.

After the Government filed a written response in

opposition to Appellant’s motion, the military judge

conducted an Article 39(a) hearing to address

Appellant’s motion for appropriate relief and a second

unrelated motion. The military judge declined

Appellant’s request to produce Capt Sierra to provide

sworn testimony, but he did hear argument on the

motion from both parties.

Eleven days later, the military judge issued a

written ruling denying Appellant’s motion. The

military judge held that he could not consider Capt

Sierra’s affidavit pursuant to M.R.E. 606 because it

was a forbidden inquiry into the panel’s deliberative

process and did not fall under any M.R.E. 606(b)

exception. The military judge concluded that the

specific M.R.E. 606(b)(2)(C) exception asserted by

Appellant applied to “clerical errors” and was

therefore not implicated by the statements in the

9a

affidavit. The military judge emphasized that: (1) the

senior member provided a copy of the findings

worksheet to the military judge at the conclusion of

deliberations; (2) the worksheet was filled out

correctly and indicated a finding of guilty for the

second specification; and (3) the senior member

responded affirmatively to the military judge’s

question whether the worksheet accurately reflected

the members’ findings.

Assuming arguendo that the affidavit or Capt

Sierra’s sworn testimony would be proper evidence for

the court’s consideration, the military judge further

held that the evidence would still be improper to

impeach the findings under R.C.M. 923.4 The military

judge determined that the findings were proper on

their face and that under

R.C.M. 923 voting irregularities would not be a

proper basis to impeach the findings.

The convening authority took no action on the

findings and approved the sentence. Appellant

appealed to the NMCCA but did not challenge the

military judge’s ruling on his motion for appropriate

relief.5 In his petition to this Court, Appellant raised

4 R.C.M. 923 states: “Findings that are proper on their face may

be impeached only when extraneous prejudicial information was

improperly brought to the attention of a member, outside

influence was improperly brought to bear upon any member, or

unlawful command influence was brought to bear upon any

member.”

On appeal before the NMCCA, Appellant asserted two

assignments of error: “(1) whether unlawful command influence

(UCI) occurred during the members’ deliberations; and (2)

5

10a

three issues and supplemented his petition with a

single issue pursuant to United States v. Grostefon, 12

M.J. 431 (C.M.A. 1982). This Court declined to grant

review of any of those issues, but specified the

following issue for review:

Did the military judge err in finding the

affidavit of the senior member to be

incompetent evidence under MRE 606(b)(2)(C)

and in denying Appellant’s motion for

appropriate relief to correct an error in the

findings worksheet?

RosarioMartinez, 85 M.J. at 463 (order granting

review).

II. Discussion

A. Preservation of the M.R.E. 606(b)(2)(C)

Issue

Before we can consider the specified issue, the

Government raises a threshold question that we must

address. Noting that Appellant failed to challenge the

military judge’s denial of his motion for appropriate

relief before the NMCCA, the Government argues that

the military judge’s ruling is now “law of the case” and

that Appellant should be bound by the military judge’s

whether Appellant was entitled to a unanimous verdict.”

RosarioMartinez, 85 M.J. at 538.

11a

decision. Although the Government concedes that the

law-of-the-case doctrine is discretionary, the

Government argues that this case does not involve the

kind of “manifest injustice” that this Court has

previously recognized as justifying a departure from

our usual practice.

Because this Court specified the issue whether the

military judge erred when he denied Appellant’s

motion for appropriate relief, the Government’s

objection is really a question about this Court’s

authority to specify and address the issue more than

it is a question about whether Appellant waived the

issue or should be estopped from raising it before this

Court. When questions arise about our authority and

the answers are not specified by the UCMJ, this Court

typically turns to the Supreme Court for guidance

about federal appellate courts’ authority to review an

issue. See B.M. v. United States, 84 M.J. 314, 317

(C.A.A.F. 2024), cert. denied, 145 S. Ct. 984 (2024)

(discussing the limitations that this Court places on

its own authority to act as a prudential rather than a

legal matter).

To answer the Government’s question, we look to

the Supreme Court’s practice with respect to its

analogous “pressed or passed upon” jurisprudence.

When the Supreme Court exercises its appellate

jurisdiction over the inferior federal courts, it is

settled practice that the Supreme Court generally will

not consider issues “not pressed or passed upon” by

the court below even when the court otherwise has

jurisdiction. McGoldrick v. Compagnie Generale

Transatlantique, 309 U.S. 430, 434 (1940). However,

12a

this practice is prudential, and the Supreme Court

reserves discretion to address issues not pressed or

passed upon by the court below in “exceptional cases.”

Id. In most cases, the Supreme Court declines to

address issues not pressed or passed upon below. See,

e.g., Heckler v. Campbell, 461 U.S. 458, 468 n.12

(1983) (declining to address an issue that was not

raised below because it was not an exceptional case);

United States v. United Foods, Inc., 533 U.S. 405, 41617 (2001) (same); FW/PBS, Inc. v. City of Dallas, 493

U.S. 215, 237 (1990) (same), holding modified by City

of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S.

774 (2004); FTC v. Grolier Inc., 462 U.S. 19, 23 n.6

(1983) (same); Adickes v. S. H. Kress & Co., 398 U.S.

144, 147 n.2 (1970); Lawn v. United States, 355 U.S.

339, 362 n.16 (1958) (same); Blair v. Oesterlein Mach.

Co., 275 U.S. 220, 225 (1927) (same); Duignan v.

United States, 274 U.S. 195, 200 (1927) (same).

But in “exceptional circumstances,” the Supreme

Court has departed from its usual practice. United

States v. Mendenhall, 446 U.S. 544, 551 n.5 (1980)

(citing Youakim v. Miller, 425 U.S. 231, 234 (1976);

Duignan, 274 U.S. at 200). For example, in Carlson v.

Green, the Supreme Court addressed a question on the

merits that was not raised at either the district court

or the court of appeals. 446 U.S. 14, 17 n.2 (1980).

Although the Supreme Court recognized it normally

does not decide issues not presented below, it also

noted that it was not precluded from doing so. Id. In

Carlson, where “the issue [was] squarely presented

and fully briefed,” the Supreme Court decided to

exercise its discretion to address the “important,

recurring issue” on the merits in the interest of

judicial administration. Id.

13a

In this case, neither party contests this Court’s

jurisdiction over this case under Article 67(a)(3),

UCMJ, 10 U.S.C. § 867(a)(3) (2024). Having found

good cause to consider whether the military judge

erred by denying Appellant’s motion for appropriate

relief, this Court specified the M.R.E. 606(b)(2)(C)

issue, which was then fully briefed and argued by the

parties. Although we agree with the Government that

we could—and normally would—decline to answer

that question on the grounds that it was not pressed

or passed upon by the NMCCA below, we believe that

this is an exceptional case that warrants departure

from our general practice.

In this case, Appellant’s defense counsel

investigated and preserved the M.R.E. 606(b)(2)(C)

issue immediately upon meeting with Capt Sierra.

The issue was fully briefed by both parties and

litigated before the military judge who issued a ninepage written ruling denying Appellant’s motion.

Neither party has suggested that their ability to

litigate the case before this Court has been prejudiced

in any way by the fact that Appellant failed to raise

the issue before the NMCCA. Similarly, our review of

the issue has not been inhibited by the fact that the

issue was not pressed or passed upon below.

Considering that this case addresses the military

justice system’s unique application of nonunanimous

verdicts and involves a claim of critical importance—

whether the findings worksheet accurately reflected

the findings of the panel—we exercise our discretion

to depart from our usual practice and address the

issue on the merits.

14a

B. Whether the Military Judge Erred by

Denying Appellant’s Motion for Appropriate

Relief

1. Standard of Review

This Court applies principles of statutory

construction when construing the Military Rules of

Evidence and reviews questions of statutory

construction de novo. United States v. Kohlbek, 78

M.J. 326, 330 (C.A.A.F. 2019). When a verdict’s

validity is challenged, a military judge has broad

discretion to determine whether to investigate the

verdict and, if so, what kind of investigation to

perform. United States v. Lambert, 55 M.J. 293, 29596 (C.A.A.F. 2001). This Court reviews those decisions

only for abuse of discretion. Id. at 296. A military

judge “abuses his discretion when his findings of fact

are clearly erroneous, the court’s decision is

influenced by an erroneous view of the law, or the

military judge’s decision on the issue at hand is

outside the range of choices reasonably arising from

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

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

omitted) (internal quotation marks omitted).

2. Discussion

The military judge denied Appellant’s motion after

determining that Capt Sierra’s affidavit was not

competent evidence that the military judge could

consider under M.R.E. 509 and M.R.E. 606 because no

15a

exception under M.R.E. 606(b)(2) applied. M.R.E. 509

instructs that panel deliberations “are privileged to

the extent that such matters are privileged in trial of

criminal cases in the United States district courts”

except as provided in M.R.E. 606. Turning to M.R.E.

606(b)(1), that rule generally prohibits members from

testifying about the panel’s deliberations, including

“any statement made or incident that occurred during

the deliberations” or “any member’s mental processes

concerning the finding or sentence.” The rule also bars

a military judge from “receiv[ing] a member’s affidavit

or evidence of a member’s statement on these

matters.” Id.

These prohibitions are subject to three exceptions

under M.R.E. 606(b)(2), which permit member

testimony about whether:

(A) extraneous prejudicial information was

improperly brought to the members’ attention;

(B) unlawful command influence or any other

outside influence was improperly brought to

bear on any member; or

(C) a mistake made in entering the finding or

sentence on the finding or sentence forms.

The third exception was added to the rule in 2013. See

Exec. Order No. 13,643, 78 Fed. Reg. 29559 (May 15,

2013) (adding M.R.E. 606(b)(2)(C)). To date, this

16a

Court has yet to formally consider the new exception’s

scope.

Appellant argues that the M.R.E. 606(b)(2)(C)

exception applies to the facts of this case because—as

explained in Capt Sierra’s affidavit—the panel

members misunderstood the voting procedures and

thus made a “mistake” (as contemplated by M.R.E.

606(b)(2)(C)) when they completed the findings

worksheet by marking “guilty” when they had initially

voted to find Appellant “not guilty.” Appellant

contends that the exception’s plain language allows

for testimony in these circumstances, which Appellant

describes as “a failure to properly memorialize the

outcome of the initial, valid vote.” We disagree.

M.R.E. 606(b)(2)(C) permits testimony about “a

mistake made in entering the finding” on the

appropriate form. The Manual for Courts-Martial,

United States does not provide any additional

guidance about the exception’s application. In such

circumstances, the President has directed that courtsmartial apply “the Federal Rules of Evidence and the

case law interpreting them.” M.R.E. 101(b)(1).

Accordingly, when this Court previously considered

M.R.E. 606’s exceptions in United States v. Loving, 41

M.J. 213, 239 (C.A.A.F. 1994), this Court looked to

Fed. R. Evid. 606 and the corresponding Advisory

Committee Notes for guidance about the scope of

M.R.E. 606 and its exceptions.

In Loving, the appellant sought to introduce

affidavits obtained from three members nearly four

17a

years after his court-martial was held alleging that

the panel failed in multiple ways to follow the military

judge’s instructions during sentencing deliberations.

Id. at 232. This Court held that members’ post-trial

affidavits were not competent evidence as to any

improper voting procedures during the sentencing

deliberations. Id. at 236-39. This Court recognized

that M.R.E. 606 and Fed. R. Evid. 606 were “identical”

other than the military rule’s reference to unlawful

command influence. Id. at 235. This Court further

noted that this construction “is consistent with the

statutory mandate in Article 36(a), UCMJ, 10 USC §

836(a),” which empowers the President to promulgate

procedures that “ ‘apply the principles of law and the

rules of evidence generally recognized in the trial of

criminal cases in the United States district courts.’ ”

Id.

As we did in Loving, we look again to the federal

rule and the Advisory Committee Notes for guidance

about the scope of the analogous federal exception. In

addition to being the approach recommended by

M.R.E. 101(b)(1), doing so is consistent with the

President’s actions in 2016, when he amended the

Military Rules of Evidence to bring them into greater

alignment with the Federal Rules of Evidence. See

Manual for Courts-Martial; Amendments to Appendix

22, 81 Fed. Reg. 15278-01, 15289 (Mar. 22, 2016).

Fed. R. Evid. 606 was amended in 2006 to allow

judges to consider evidence about “a mistake in

entering the verdict onto the verdict form.” Fed. R.

Evid. 606(b)(3) advisory committee note to the 2006

amendment. Seven years later, the President added

18a

M.R.E. 606(b)(2)(C) to the list of exceptions in the

military rule. See Exec. Order No. 13,643, 78 Fed. Reg.

29559 (May 15, 2013). Today, M.R.E. 606(b) remains

essentially identical to Fed. R. Evid. 606(b), except for

minor changes to accommodate court-martial

terminology.

The Advisory Committee Note addressing the 2006

amendment to Fed. R. Evid. 606(b)(3) instructs that

the rule was amended in direct response to “a

divergence between the text of the Rule and the case

law that has established an exception for proof of

clerical errors.” Fed. R. Evid. 606 advisory committee

note to the 2006 amendment (citing Plummer v.

Springfield Term. Ry., 5 F.3d 1, 3 (1st Cir. 1993)

(holding “that juror testimony regarding an alleged

clerical error, such as announcing a verdict different

than that agreed upon, does not challenge the validity

of the verdict or deliberation of mental processes, and

therefore is not subject to Rule 606(b)”); Teevee Toons.

Inc. v. MP3 Com. Inc., 148 F. Supp. 2d 276, 278

(S.D.N.Y. 2001) (noting that Fed. R. Evid. 606(b) was

previously silent regarding inquiries designed to

confirm the accuracy of a verdict)). The Note clarified

that the exception was to be narrow—that testimony

concerning “clerical errors” committed while entering

findings in the findings work-sheet triggers the

exception,

but

testimony

pertaining

to

misunderstandings about the consequences of the

jury’s results or the misapplication of instructions are

explicitly prohibited because they pertain to the

jurors’ mental processes.6 Id.

6 Part of the Advisory Committee Note for the 2006 amendment

reads “[t]he broader exception [for allowing proof of mistakes in

19a

Here, Capt Sierra’s affidavit fails to identify any

evidence of a clerical mistake being made when he

entered the panel’s findings on the findings

worksheet. Instead, the affidavit documents the

panel’s alleged misunderstanding and misapplication

of the military judge’s instructions for voting during

deliberations. Thus, this case would seem to fall

squarely within the Advisory Committee’s guidance

that forbids testimony challenging the jury’s

misapplication of the judge’s instructions.

Nevertheless, Appellant urges us to adopt an

expansive interpretation of M.R.E. 606(b)(2)(C) and

follow the United States Court of Appeals for the Fifth

Circuit’s approach in United States v. Dotson, where

that court held that the district court did not err when

it heard testimony from the jury foreman about the

jury’s deliberations and then corrected the verdict to

show that the defendant was acquitted—rather than

found guilty—of a single count. 817 F.3d 1127, 1130

(5th Cir. 1987). We decline Appellant’s invitation for

three reasons.

entering the verdict] is rejected because an inquiry into whether

the jury misunderstood or misapplied an instruction goes to the

jurors’ mental processes underlying the verdict, rather than the

verdict’s accuracy in capturing what the jurors had agreed upon.”

Id. The Note further explains that the amendment’s exception “is

limited to cases such as where the jury fore-person wrote down,

in response to an interrogatory, a number different from that

agreed upon by the jury, or mistakenly stated that the defendant

was ‘guilty’ when the jury had actually agreed that the defendant

was not guilty.” Id. (citation omitted) (internal quotation marks

omitted).

20a

First, as Appellant concedes, the Fifth Circuit’s

decision in Dotson was issued decades before the

addition of the exception for clerical errors to Fed. R.

Evid. 606(b). Thus, it provides little insight into the

application of the current federal rule, and even less

into the scope of M.R.E. 606(b)(2)(C).

Second, in Dotson, the judge did not consider any

testimony from the jurors about how the jury reached

its verdict. The jurors only stated that the verdict

announced in court did not match their actual vote.

Here, Capt Sierra’s affidavit does not even mention

the panel’s final vote. Instead, it focuses on the early

stages of the panel’s deliberations and the panel’s

misunderstanding of the military judge’s instructions.

And finally, unlike the jury in Dotson, Appellant

does not contest that the verdict announced at his trial

accurately reflected the ultimate determination of the

panel. In Dotson, the jury had to consider fourteen

criminal counts: ten against Dotson and four against

his co-defendant. 817 F.2d at 1128-29. The announced

verdict found Dotson guilty of all ten counts against

him, but according to the jury foreman and two other

jurors, the announced verdict did not reflect the jury’s

vote with respect to count ten. Id. They stated that the

jury voted unanimously to acquit Dotson of count ten

rather than find him guilty. Id. Thus, the verdict form

contained a clerical error because it did not accurately

reflect their vote.

21a

In this case, even if the affidavit is construed in the

light most favorable to Appellant, Loving, 41 M.J. at

239, it falls short of suggesting that the announced

sentence is not what was actually agreed upon by the

panel. Appellant argues that there was a mistake in

the panel’s process, not that the announced verdict

failed to accurately represent the panel’s final

determination. Appellant may be correct that the

panel could have—or even should have—stopped their

deliberations after their first secret vote, but they did

not stop. The panel continued deliberating and,

ultimately, at the conclusion of those deliberations,

the court-martial voted to find Appellant guilty of

Specification 2. Unlike in Dotson, there is no

suggestion that the verdict announced in court did not

reflect the panel’s final vote or their ultimate

intention to find Appellant guilty of Specification 2.

We agree with the military judge that the

exception under M.R.E. 606(b)(2)(C) should be

construed narrowly and did not apply to the error

alleged by Appellant in this case. Accordingly, the

military judge did not abuse his discretion when he

determined that the affidavit did not fall under the

M.R.E. 606(b)(2)(C) exception and was, therefore, not

competent evidence. Because he could not lawfully

consider Capt Sierra’s affidavit, the military judge did

not abuse his discretion when he denied Appellant’s

motion for appropriate relief.

III. Conclusion

For the reasons cited above, we affirm the findings

and sentence as affirmed by the United States NavyMarine Corps Court of Criminal Appeals.

22a

APPENDIX

UNITED STATES MARINE CORPS

UNITED STATES

v.

Affidavit

JONATON

ROSARIOMARTINEZ

U.S. Marine Corps

Date: 4 February 2023

SWORN AFFIDAVIT

I, REDACTED declare under penalty of perjury:

1. I was the senior member in the trial of U.S. v.

Cpl Rosariomartinez.

2. During deliberations we were not provided a

written copy of the procedural instructions for

voting.

3. It was our understanding that in order to reach

a verdict we needed either 6 votes in favor of

guilty or 6 votes in favor of not guilty for both

specifications.

23a

4. We called for a vote at least 5-6 times.

5. We voted using secret written ballot.

6. The first vote where all members were decided

had 3 or more members vote in favor of not

guilty for both specifications. That vote was

completed using secret written ballot.

7. At no time prior to this vote did we have 6 or

more members vote in favor of guilty to either

specification.

8. We incorrectly did not complete the findings

worksheet after each finding that would have

resulted in a not guilty verdict because we did

not believe we had reached the required

number of votes for a finding of not guilty.

9. Since the time the incorrect findings worksheet

was read aloud in open court, I have learned

that I should have filled out the findings

worksheet consistent with the first vote of the

panel which resulted in a finding of not guilty

to both specifications.

10. Had we known the proper procedure we would

have filled out the findings worksheet

correctly to return a finding of not guilty.

24a

11. I would like to correct the findings worksheet

to accurately reflect the correct findings of the

panel.

12. I can be reached via e-mail at REDACTED.

REDACTED

U.S. Marine Corps

Sworn to and subscribed before me this 4th day of

Feb, 23.

REDACTED

Name: REDACTED

Rank: REDACTED

Branch: REDACTED

10 U.S. Code § 1044a

Judge MAGGS, concurring in the judgment.

The specified issue in this case is: “Did the military

judge err in finding the affidavit of the senior member

to be incompetent evidence under [Military Rule of

Evidence (M.R.E.)] 606(b)(2)(C) and in denying

Appellant’s motion for appropriate relief to correct an

error in the findings worksheet?” The Court answers

the specified issue in the negative and therefore

affirms the findings and sentence in this case.

25a

I agree that the findings and sentence in this case

should be affirmed, but my reasoning is different. I am

persuaded by the Government’s argument that the

Court should not reach the merits of the specified

issue because Appellant abandoned the issue when he

did not raise it in his appeal to the United States

Navy-Marine Corps Court of Criminal Appeals

(NMCCA). I therefore respectfully concur only in the

judgment of the Court and do not concur in the Court’s

opinion.

I. Discussion

The Court correctly states the key facts relevant to

this appeal. Appellant moved the military judge for

appropriate relief on the basis of an affidavit by a

member of the court-martial indicating that the

members had not followed applicable voting rules

when they found him guilty of one specification of

sexual assault. The Government opposed the motion,

arguing that M.R.E. 606(b) prevented the military

judge from considering the member’s affidavit.

M.R.E. 606(b)(1) provides that “a member of a

court-martial may not testify about any . . . incident

that occurred during the deliberations of that courtmartial” and that the “military judge may not receive

a member’s affidavit . . . on these matters.”

In a written ruling, the military judge denied relief

based on M.R.E. 606. In so doing, the military judge

recognized that M.R.E. 606(b)(2)(C) creates an

26a

exception that allows a member to testify about

whether “a mistake was made in entering the finding

or sentence on the finding or sentence forms.” But the

military judge ruled that this exception did not apply.

Rather, the military judge found “that the affidavit

from the senior member produced by the defense [was]

an inquiry into the deliberative process.” The affidavit

was therefore incompetent evidence and “the court

[was] foreclosed from considering matters that

occurred during the members’ deliberative process.”

Appellant appealed to the NMCCA, raising two

issues. Issue I was: “Did unlawful command influence

occur during deliberations where the members

discussed the Marine Corps and [Sexual Assault

Prevention and Response] policies that any

consumption of alcohol renders a person unable to

consent to sexual activity and that alleged sexual assault victims have to be believed?” Issue II was: “Was

Appellant entitled to a unanimous verdict?” In his

brief, Appellant described the military judge’s ruling

on his motion for appropriate relief, but he did not

argue that the military judge had erred by not

considering the member’s affidavit under the

exception in M.R.E. 606(b)(2)(C). On the contrary,

every time Appellant mentioned the voting

procedures, his arguments concerned the asserted

unlawful command influence or his right to a

unanimous verdict. The NMCCA, accordingly, did not

rule on the challenge now presented under M.R.E.

606(b)(2)(C). United States v. RosarioMartinez, 85

M.J. 535, 541-42 (N-M. Ct. Crim. App. 2024).

27a

The Court also correctly states the law concerning

the abandonment of issues on appeal. The United

States Supreme Court has explained that “[o]rdinarily

an appellate court does not give consideration to

issues not raised below.” Hormel v. Helvering, 312

U.S. 552, 556 (1941). But the Supreme Court has

qualified this general principle by recognizing that

“[t]here may always be exceptional cases or particular

circumstances which will prompt a reviewing or

appellate court, where injustice might otherwise

result, to consider questions of law which were neither

pressed nor passed upon by the court or

administrative agency below.”1 Id. at 557.

This Court has adopted the same general principle

and qualification. In United States v. Parker, this

Court explained:

When a party does not appeal a ruling, the

ruling of the lower court normally becomes the

law of the case. See United States v. Doss, 57

M.J. 182, 185 (C.A.A.F. 2002). The law-of-the

case doctrine, however, is a matter of appellate

policy, not a binding legal doctrine. Because

1 Another exception is the “cross-appeal doctrine” described in

United States v. Am. Ry. Exp. Co., 265 U.S. 425, 435 (1924). The

cross-appeal doctrine is the “familiar principle of appellate

practice . . . that ‘[a]n appellee . . . may defend the judgment below on a ground not earlier aired.’ ” United States v. Perkins, 78

M.J. 381, 386 n.8 (C.A.A.F. 2019) (second alteration in original)

(emphasis added) (quoting Greenlaw v. United States, 554 U.S.

237, 250 n.5 (2008)). The cross-appeal doctrine does not apply to

the issue now before this Court because Appellant is challenging

a ruling on a ground that he did not raise at the NMCCA.

28a

the law-of-the-case doctrine is discretionary, it

need not be applied when the lower court’s

decision is “clearly erroneous and would work

a manifest injustice.” Id. at n.* (citing United

States v. Williams, 41 M.J. 134, 135 n.2

(C.M.A. 1994)).

62 M.J. 459, 464 (C.A.A.F. 2006).2

After correctly describing the facts and the law, the

Court then holds that this appeal is an “exceptional

case” in which the Court should consider an argument

that Appellant did not raise before the NMCCA. This

is where I part company with the Court’s opinion. In

my view, this appeal is not an “exceptional case”—as

the Supreme Court has used that term—for three

reasons.

2 Most federal courts use the term “abandonment” to describe the

principle that appellants are precluded from arguing issues that

they failed to raise in their appellate briefs. 16AA Wright &

Miller’s Federal Practice & Procedure § 3974.1 (5th ed. 2020). In

Parker, however, this Court referred to this principle as the “lawof-the-case doctrine.” 62 M.J. at 464. This description may be

confusing because other authorities define the “law-of-the-case

doctrine” as “[t]he doctrine that when a point or question arising

in the course of a lawsuit has been finally decided, the legal rule

or principle announced as applicable to the facts governs the

lawsuit in all its later stages and developments.” Law of the Case,

Black’s Law Dictionary (12th ed. 2024). Under this definition, the

law-of-the-case doctrine would serve the more specific function of

preventing a decision of a higher court from being relitigated

after remand to a lower court. 18B Wright & Miller’s Federal

Practice & Procedure § 4478 (3d ed. 2019) (explaining that a

ruling of a superior court “binds a lower court on remand to the

law of the case established on appeal”).

29a

First, this case reached the NMCCA and this Court

through “normal adversarial litigation.” Sims v. Apfel,

530 U.S. 103, 109 (2000). While the Supreme Court

has recognized that “the reasons for a court to require

issue exhaustion are much weaker” when a

“proceeding is not adversarial” in nature, id. at 110,

this appeal concerns a fully adversarial criminal case.

Appellant had every incentive and a full and fair

opportunity to challenge the military order before the

NMCCA but he did not do so.

Second, Appellant offers no good reason for not

having raised the issue on appeal to the NMCCA. On

the contrary, in his briefs before this Court, his

enigmatic position is that he somehow “raised this

issue on appeal under other exceptions to M.R.E.

606(b)(2).” But as described above, Appellant never

argued that the military judge erred by not

considering the member’s affidavit under M.R.E.

606(b)(2)(C).

Third, this is not a case where settled law

demonstrates “the proper resolution is beyond any

doubt” or a case “where ‘injustice might otherwise

result.’ ” Singleton v. Wulff, 428 U.S. 106, 121 (1976)

(quoting Hormel v. Helvering, 312 U.S. 552, 557

(1941)). On the contrary, as the Court’s opinion

correctly recognizes, there was no settled law

regarding the specified issue because this Court had

never formally considered the scope of the exception

in M.R.E. 606(b)(2)(C). An appellate court cannot

always be expected to refrain from correcting unraised

errors “if the errors are obvious, or if they otherwise

seriously affect the fairness, integrity, or public

30a

reputation of judicial proceedings.” United States v.

Atkinson, 297 U.S. 157, 160 (1936). But here there was

no obvious error in the military judge’s ruling.

The Supreme Court’s principles on abandonment

are important because the justice system depends on

orderly litigation. For example, as we have remarked

many times, this Court benefits greatly from a

thorough consideration of issues by a Court of

Criminal Appeals. E.g., United States v. Shafran, 85

M.J. 420, 425 n.3 (C.A.A.F. 2025) (commending the

Court of Criminal Appeals for its thorough and

persuasive analysis). This benefit is lost when we

consider arguments that were not presented to a

Court of Criminal Appeals. Better results are more

likely when we decline to act on a question not raised

below, “without prejudice to the disposition of the

question wherever appropriately presented.” Blair v.

Oesterlein Mach. Co., 275 U.S. 220, 225 (1927).

II. Conclusion

For these reasons, I respectfully concur in the

judgment.

31a

This opinion is subject to administrative correction

before final disposition.

Before

DALY, GROSS, and de GROOT

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Jonatan O. ROSARIOMARTINEZ

Corporal (E-4), U.S. Marine Corps

Appellant

No. 202300154

_________________________

Decided: 18 December 2024

32a

Appeal from the United States Navy-Marine Corps

Trial Judiciary

Military Judge:

Ryan C. Lipton (arraignment)

Benjamin A. Robles (motions)

Adam L. Workman (trial and post-trial)

Sentence adjudged 27 January 2023 by a general

court-martial convened at Marine Corps Base Camp

Lejeune, North Carolina, consisting of members with

enlisted representation. Sentence in the Entry of

Judgment: confinement for 18 months and a

dishonorable discharge.1

For Appellant:

Lieutenant Morgan Sanders, JAGC, USN

For Appellee:

Lieutenant Rachel E. Noveroske, JAGC, USN

Major Mary-Claire Finnen, USMC

Judge GROSS delivered the opinion of the Court in

which Senior Judge DALY and Judge de GROOT

joined.

1 Appellant was credited with 32 days’ confinement credit.

33a

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

GROSS, J:

For over one hundred years, courts in the United

States have flatly prohibited the admission of juror

testimony to impeach a verdict, except in sharply

limited circumstances.2 The Supreme Court,

explaining the prohibition, stated

There is little doubt that post-verdict

investigation into juror misconduct would in

some instances lead to the invalidation of

verdicts reached after irresponsible or

improper juror behavior. It is not at all clear,

however, that the jury system could survive

such efforts to perfect it. Allegations of juror

misconduct, incompetency, or inattentiveness,

raised for the first time days, weeks, or

months after the verdict, seriously disrupt the

finality of the process.3

Appellant now asks us to condone such an

investigation, invade the deliberative process of his

court-martial by attaching declarations of two

2 Tanner v. United States, 483 U.S. 107, 117 (1987).

3 Id. At 120.

34a

members relating to their closed deliberations, and

reverse his conviction. We decline to do so.

A general court-martial composed of members with

enlisted representation convicted Appellant, contrary

to his pleas, of one specification of sexual assault in

violation of Article 120, Uniform Code of Military

Justice (UCMJ).4 The military judge imposed a

sentence of confinement for 18 months and a

dishonorable discharge.

Before us, Appellant asserts two assignments of

error which we rephrase as follows: (1) whether

unlawful command influence (UCI) occurred during

the members’ deliberations; and (2) whether

Appellant was entitled to a unanimous verdict.5 In

support of Appellant’s first AOE, he sought to attach

three declarations—two from members of the courtmartial and one from his trial defense counsel—which

the Government opposed. We then ordered briefing on

six specified issues relating to Appellant’s motion to

4 10 U.S.C. § 920.

5 We find that pursuant to United States v. Anderson, 83 M.J. 291

(C.A.A.F. 2023), Appellant is not entitled to a unanimous verdict.

On 3 June 2024, Appellant filed a motion to file a supplemental

AOE claiming that this Court erred in denying his motion to

attach supplemental matters to the record in support of his first

AOE. On 24 June 2024, we denied Appellant’s motion to file a

supplemental AOE stating that Appellant’s claim of error had

already been properly preserved and that the reason for our

denial of the motion to attach would be addressed in our opinion

on the merits.

35a

attach.6 Having considered the entire record of trial

and the briefs of the parties, including the briefs on

the specified issues, we now set forth our reasons for

our previous denial of Appellant’s motion to attach.

Upon review of the record as a whole, and

Appellant not having challenged the factual

sufficiency of his convictions, we find that Appellant’s

conviction and sentence are correct in law, that his

6 I: Should the affidavits be analyzed as potential evidence of

unlawful command influence, improper outside influence, or

extraneous prejudicial information?

II: Is United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020), the

appropriate framework to analyze the motion to attach?

III: If Jessie is the proper framework for this Court’s analysis,

where was the issue raised in the record?

IV: If this Court determines a portion of an affidavit may be

attached to the record, must that affidavit be attached in its

entirety or may it be redacted?

V: Under what legal theory would trial defense counsel’s affidavit

be attached to the record?

VI: Would a violation of the military judge’s order proscribing the

parties and their agents from communicating with the members

affect the competency of the evidence contained in the affidavits

being offered?

36a

sentence is correct in law and fact, and that no

prejudicial error to his substantial rights occurred.7

I. Background

Appellant was charged with two specifications of

sexual assault, one for committing a sexual act on

Lance Corporal (LCpl) Oscar without her consent, and

one for committing a sexual act on LCpl Oscar when

he knew, or reasonably should have known, that she

was asleep. The two specifications were based upon

the same incident and were pleaded in the alternative

based on contingencies of proof. The members

convicted Appellant of sexual assault without consent,

but acquitted him of the specification that alleged that

LCpl Oscar was asleep. Appellant then elected to be

sentenced by military judge.

A lengthy exposition of the facts surrounding

Appellant’s conviction is largely unnecessary for our

consideration of the assigned errors, except to note

that on the night in question, the evidence showed

that Appellant sexually assaulted LCpl Oscar after

the two had been drinking together at a bar earlier in

the evening. At trial, Appellant’s defense focused

largely on issues of consent and mistake of fact as to

consent.

Appellant elected to be tried by members with

enlisted representation. During voir dire, the military

judge asked the detailed members whether any of

them had received training during their time in the

7 Articles 59 and 66, UCMJ.

37a

Marine Corps about what “consent” means and what

qualifies as consent. All members said that they had.

Shortly after asking that question, the military judge

excused the members and took a brief recess. He then

brought back all of the members and read them the definition

of consent from the Military Judges’ Benchbook.8 After

reading the legal definition of consent, the military judge

asked if the members agreed to follow the instruction and all

members agreed that they would.

1. Voir Dire and Captain Jordan.

During individual voir dire, the military judge and

counsel questioned Captain (Capt) Jordan, who

indicated that he had been confused about what

definition of consent to use as a potential member in

hearing the case. Capt Jordan stated that he felt that

the Marine Corps had a “black and white definition”

of what consent is, and that under that definition, if

“an individual does drink alcohol they can no longer

consent.”9 Capt Jordan also described a conversation

that he had with the other potential members during

the brief recess before the military judge read them

the legal definition of consent.

Capt Jordan described this conversation as

focusing on the definition of consent and the “Marine

Corps policy” on consent. He said that he did not direct

his question at any particular potential member, but

rather “just opened [it] to the room.”10 After the

8 Dep’t of the Army Pam. 27-9, Military Judges’ Benchbook, para.

3a-44-2, Note 5.

9 R. at 140-142

10 R. at 141.

38a

military judge again asked Capt Jordan if he could

follow the instruction that the military judge had

given on consent, Capt Jordan said that he could.

However, Capt Jordan went on to say that he believed

that Marine Corps policy on consent dictated that a

person cannot consent after drinking alcohol, and that

policy did not conflict with the military judge’s

definition. The Government challenged Capt Jordan

for actual bias and the Defense joined the challenge,

which the military judge granted.

After Capt Jordan’s disclosure regarding the

discussion in the deliberation room, the military judge

and the parties asked some, but not all, of the

potential members about Capt Jordan’s discussion

regarding the definition of consent. The military judge

imposed no limitations on voir dire by either side, and

both sides engaged in extensive questioning of each

member of the venire. Appellant and the Government

each challenged two members for cause, with

Appellant joining in both Government challenges (one

of which was the previously mentioned Capt Jordan).

The military judge granted all four challenges for

cause, and eight panel members were ultimately

selected to hear Appellant’s case.

Of the empaneled members, two recalled the

discussion, three did not recall the discussion, and

three were not asked about it. All of the empaneled

members affirmed that they would follow the military

judge’s definition of consent, and all eight said they

would remain open to evidence that a person could

consent to sex after drinking alcohol, even if the

person drank to the point of memory loss.

39a

2. Post-trial and Captain Sierra.

After trial, Appellant’s two military trial defense

counsel (TDC), at the urging of their superiors,

reached out to members of the panel to conduct a “hot

wash.”11 The senior member of the panel, Capt Sierra, agreed

to meet with TDC to discuss the trial. At one point during the

meeting, Capt Sierra asked TDC a question about how “hung

juries” work in the military. Appellant’s TDC explained that

under court-martial procedures a panel is not required to be

unanimous, and if the number of votes for guilty was less than

three quarters of the panel that would result in a not-guilty

verdict. Capt Sierra then told Appellant’s TDC that the panel

had numerous votes where three or more members voted for a

finding of not guilty before finally reaching six votes for

guilty.

Appellant’s detailed TDC then sought further

guidance from their superiors before asking Capt

Sierra to sign an affidavit attesting to what he had

just told them. Capt Sierra signed the affidavit and

Appellant filed a motion for a post-trial Article 39(a)

session seeking to “correct the findings worksheet”

pursuant to R.C.M. 922. Capt Sierra’s affidavit did not

include any information regarding what the members

discussed during deliberations, only referring to the

multiple votes taken.

11 R. at 790. A “hot wash” is a term used by military personnel

for a meeting between participants to conduct a quick review of

the high and low points of an exercise. “A QDR “Hot Wash” – War

on the Rocks” available at https://warontherocks.com/2014/03/aqdr-hot-wash/ (last visited 2 December 2024).

40a

Prior to holding a post-trial Article 39(a) session

under Rule for Courts-Martial (R.C.M.) 1104 on the

Defense motion, the military judge sent an email to all

counsel, stating “all parties and their agents are

ORDERED to CEASE and DESIST communicating

with any members.”12 The military judge then heard

argument on the Defense motion, found that Capt

Sierra’s affidavit was a prohibited disclosure under

Mil. R. Evid. 509 and that it did not meet any of the

exceptions set forth in Mil. R. Evid. 606. Specifically,

the military judge found that the affidavit did not

raise any claim of extraneous prejudicial information

being brought to the members’ attention, nor did it

allege that unlawful command influence or any other

outside influence was improperly brought to bear on

any member. With respect to the Defense claim that

“a mistake was made in entering the finding” the

military judge found that the members did not make

a mistake, but rather correctly announced their

findings even though the affidavit appeared to state

that the members had violated the military judge’s

instructions on voting and reconsideration.

3. Appeal, Capt Romeo, 1stLt Hotel, and SSgt

Papa.

On appeal, Appellant sought to attach three

additional declarations: two from other members of

Appellant’s court-martial and one from one of Appellant’s TDC, Capt Romeo. We denied Appellant’s

motion to attach on 10 May 2024, concluding that the

12 App. Ex. LXVII (capitalization in original).

41a

declarations of the members constituted incompetent

evidence. We describe them below and provide

analysis to explain what drove our decision to deny

the motion to attach.

The declarations of 1st Lieutenant (1stLt) Hotel

and Staff Sergeant (SSgt) Papa described the same

voting procedure as does Capt Sierra’s affidavit, but

added additional details. 1stLt Hotel stated that after

the members initial vote failed to produce six votes for

either a conviction or acquittal that “some members

discussed the USMC and SAPR policy relating to:

‘having to believe her’ when discussing the alleged

victim.”13 SSgt Papa stated that, during further

deliberations after the initial vote “all members

discussed the USMC and SAPR policy relating to: if

someone has been drinking then they can’t consent to

sexual activities.”14

Captain Romeo’s declaration merely stated that he

was unaware that members had discussed either of

the aforementioned policies during deliberations. He

further stated that if he had known that the policies

were discussed, he would have filed a motion for

unlawful command influence.

II. DISCUSSION

13 Decl. of 1stLt Hotel.

14 Decl. of SSgt Papa.

42a

A. The motion to attach the affidavits of 1st

Lieutenant Hotel, Staff Sergeant Papa, and

Captain Romeo is denied.

To assist and inform our decision whether to

attach the declarations to the record, we ordered the

parties to brief six specified issues. Having now

considered the briefs of the parties and the

declarations, we find that we can resolve the question

of whether to attach the declarations based on our

finding that they do not meet any of the exceptions

under Mil. R. Evid. 606(b) and are therefore not

competent evidence.15

1. Law

a. Competence of member testimony and

declarations

Military Rule of Evidence 509 states, “[e]xcept as

provided in Mil. R. Evid. 606, the deliberations of …

courts-martial … are privileged to the extent that

such matters are privileged in trial of criminal cases

The Government urges us to find that Jessie precludes

attaching evidence of UCI that was not raised in the record at

trial as a whole. While we need not decide whether Jessie acts as

a bar to our consideration of matters outside the record related

to UCI, we note that our sister court, in a well-reasoned opinion,

found that the CAAF’s opinion in Jessie did not alter the

authority of a CCA to attach matters relating to UCI to the

record. See United States v. Tucker, 82 M.J. 553 (C.G. Ct. Crim.

App. 2022).

15

43a

in the United States district courts…”16 Mil. R. Evid.

606 prohibits a member from testifying “about any

statement made or incident that occurred during the

deliberations of that court-martial.”17 The rule

recognizes three exceptions: (1) whether extraneous

prejudicial information was improperly brought to the

members attention; (2) whether unlawful command

influence or other outside influence was improperly

brought to bear on any member; and (3) whether a

mistake was made in entering the findings or

sentence.18

“In general, inquiries into jury verdicts and

deliberations are looked upon with strong disfavor.”19

The Manual for Courts-Martial (MCM) implements

this general restriction on questioning members about

their deliberations. In other cases we have found that

members cannot be questioned about their deliberations and voting except as provided in Mil. R.

Evid. 606. The MCM “prohibits questioning court

members about their deliberations and voting except

as provided in Mil. R. Evid. 606. R.C.M. 923 permits

the impeachment of findings which are proper on their

face only when an exception contained in Mil. R. Evid.

606 exists.”20

16 Mil. R. Evid. 509.

17 Mil. R. Evid. 606(b)(1).

18 Mil. R. Evid. 606(c).

19 United States v. Thomas, 39 M.J. 626, 632 (N-M.C.M.R. 1993)

(cleaned up).

20 Id.

44a

“The purpose of this rule is to protect freedom of

deliberation, protect the stability and finality of

verdicts, and protect court members from annoyance

and embarrassment.”21 “[A]n appellant has the

burden of showing that something was said or done

during deliberations which falls under an exception

contained in R.C.M. 923 and Mil. R. Evid. 606(b) that

reasonably could have affected the verdict before

appellant is entitled to depositions or in-court

questioning of court members regarding their

deliberations.”22

Courts have repeatedly cautioned that even when

an exception to the general prohibition on receiving

evidence of deliberations might apply, the extent of

inquiry into deliberations must be limited.

We caution counsel and court members to be

mindful of the obligation to protect the secrecy

of deliberations. Even when the exceptions to

Mil.R.Evid. 606(b) are triggered, disclosures

should be limited to the fact and nature of the

extrinsic evidence; the impact of the extrinsic

evidence or influence on the deliberations or

voting should not be disclosed.23

Pronouncements like this demonstrate that the

overarching policy with respect to questioning

21 United States v. Loving, 41 M.J. 213, 236 (C.A.A.F. 1994).

22 Thomas, 39 M.J. at 634.

23 United States v. Straight, 42 M.J. 244, 251 (C.A.A.F. 1995).

45a

members about their deliberations is that such

questioning is to be avoided unless narrowly tailored

to a specific exception.

In response to our first specified issue, Appellant

only claimed that the declarations were evidence of

unlawful command influence. He made no attempt to

claim that they were evidence of extraneous

prejudicial information or other outside improper

influence. We therefore analyze the declarations

primarily under the theory of UCI.24

b. Unlawful Command Influence

“Unlawful command influence is the mortal enemy

of military justice. Where it is found to exist, judicial

authorities must take those steps necessary to

preserve both the actual and apparent fairness of the

24 We also considered whether the declarations were evidence of

extraneous prejudicial information. However, the caselaw

supports that extraneous prejudicial information does not

include matters that a member brings to the deliberation room,

including knowledge of training or policy. Straight, 42 M.J. at

250 (“[E]vidence of information acquired by a court member

during deliberations from a third party or from outside reference

materials may be extraneous prejudicial information which is

admissible under Mil.R.Evid. 606(b) to impeach the findings or

sentence. [But] the general and common knowledge a court

member brings to deliberations is an intrinsic part of the

deliberative process, and evidence about that knowledge is not

competent evidence to impeach the members' findings or

sentence.”).

46a

criminal proceeding.”25 To make a prima facie case of

actual unlawful command influence, an accused bears

the initial burden of presenting “some evidence” of

UCI— facts that if true would constitute UCI.26 “Although

this burden is low, the accused must present more

than mere allegations or speculation.”27

“[T]he use of command meetings to purposefully

influence the members in determining a court-martial

sentence violates Article 37, UCMJ.”28 However, even

when there is no intent to influence a court-martial

proceeding, “the mere ‘confluence’ of the timing of

such meetings with members during ongoing courtsmartials and their subject matter dealing with courtmartial sentences can require [a rehearing].”29

In United States v. Dugan, the Court of Appeals for

the Armed Forces (CAAF) confronted the issue of what

constituted “some evidence” of UCI during

deliberations.30 In Dugan, a member sent the defense

counsel a letter setting forth concerns with respect to

comments made by other members during

deliberation on sentence. The CAAF identified two

statements that required additional fact finding and

United States v. Lewis, 63 M.J. 405, 407 (C.A.A.F. 2006)

(cleaned up).

25

26 United States v. Gilmet, 83 M.J. 398, 403 (C.A.A.F. 2023).

27 Id.

28 United States v. Baldwin, 54 M.J. 308, 310 (C.A.A.F. 2001).

29 Id. (Citing United States v. Brice, 19 M.J. 170, 172 n. 3 (C.M.A.

1985)).

30 United States v. Dugan, 58 M.J. 253, 258 (C.A.A.F. 2003).

47a

the piercing of the deliberative privilege under Mil. R.

Evid. 509 and 606. The first was a comment that a

bad-conduct discharge “was a given” for the types of

charges of which the Appellant was convicted. The

second was a statement by a member of the panel

“that our sentence would be reviewed by the

convening authority and we needed to make sure our

sentence was sending a consistent message.” The

letter went on to state that “[a]nother member pointed

out that we needed to make sure it didn't look like we

took the charges too lightly … He or she said it was

especially important because our names would be

identified as panel members.”31

We recently addressed UCI in the context of

deliberation in the case of United States v.

Longshore.32 There, the appellant sought to introduce

evidence in the form of an affidavit from a member

who claimed that the members conducted straw polls,

read their notes to each other, and that one member

commented that “as servicemembers, [they had] a

duty to send a message that sexual assault is not

tolerated in the Navy.”33 We determined there that

the language used in deliberations did not raise “some

evidence” of UCI.

Appellant invites our attention to our sister court’s

decision in United States v. Schloff, where the Army

31 Id. at 255.

32 United States v. Longshore, No. 202200177, 2024 CCA LEXIS

56 (N-M. Ct. Crim. App. Feb, 6, 2024), rev. denied, M.J. , 2024

CAAF LEXIS 414, (C.A.A.F. July 19, 2024).

33 Id. at *19.

48a

Court of Criminal Appeals (ACCA) reversed a

conviction based on UCI during deliberations on

findings.34 In Schloff, the ACCA ordered a DuBay

hearing35 after one of the members averred that another member had argued that the Army could not

afford to seem weak on sexual harassment and sexual

assault.36 Following the DuBay hearing, the ACCA

found that the Government could not prove beyond a

reasonable doubt that UCI had not impacted the

appellant’s court-martial.37

The CAAF has considered the issue of sexual

assault training and whether the mere mention of

such training constituted UCI in United States v.

Washington.38 In Washington, the trial counsel

introduced testimony that the appellant had attended

such training (referred to in the Army as “SHARP

training”) as evidence rebutting the appellant’s

reasonable mistake of fact defense. In rejecting the

appellant’s UCI claim, the CAAF stated, “[t]he

SHARP training was not done for the purpose of

influencing the trial, no one argued at trial that the

SHARP training reflected the law, the military judge

properly instructed the members, and the members

United States v. Schloff, No. ARMY 20150724, 2018 CCA

LEXIS 350 (Army Ct. Crim. App. Feb. 5, 2018) (unpublished).

34

35 United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R.

(1967).

36 Schloff, 2018 CCA LEXIS 350 at *2.

37 Id.

38 United States v. Washington, 80 M.J. 106 (C.A.A.F. 2020).

411

49a

agreed that they could follow the military judge's

instructions.”39

2. Discussion

We hold that we cannot consider the declarations

of either 1stLt Hotel or SSgt Papa, because the

declarations do not fit within one of the very narrow

exceptions to the general prohibition on members

providing evidence of deliberations. Because we

determined that we cannot attach the declarations of

1stLt Hotel and SSgt Papa, the declaration of Capt

Romeo is irrelevant to any matter raised in the record.

In reaching our decision on the whether the

declarations here show “some evidence” of UCI, we

find no reason to depart from our decision in

Longshore, that a generalized statement by a member

regarding a “duty to send a message that sexual

assault is not tolerated in the Navy” is insufficient to

meet an appellant’s initial burden under Biagase.40

We find the circumstances of Appellant’s case to be

more akin to that of Longshore and Washington than

the circumstances involved in Dugan and Schloff.

We begin by noting that controlling precedent

conclusively holds that much of the declarations of

1stLt Hotel and SSgt Papa are completely covered by

the privilege in Mil. R. Evid. 509 and therefore

39 Id. at 113.

40 Longshore, 2024 CCA LEXIS 56 at *20.

50a

completely inappropriate for inclusion in a

declaration. These matters include discussing the

number of times the members voted and the number

of members who voted for a specific outcome.41 The

inclusion of these statements in the declarations was

a violation of black letter law protecting the sanctity

of the deliberations of the court-martial, and we agree

completely with the military judge’s order to the

parties to cease and desist from communicating with

the members, particularly regarding these topics.42

The central issue for this case, however, is whether

the members’ statements regarding the discussion of

various alleged Marine Corps and “SAPR” policies fall

41 See Loving, 41 M.J. at 237; Thomas, 39 M.J. at 634 (“Even prior

to the adoption of the Military Rules of Evidence, post-trial

affidavits alleging errors in voting procedures, to include

erroneous reconsideration, were considered incompetent

evidence.”)

The parties did not fully brief the question of whether the

military judge’s order had continuing effect on Appellate Defense

Counsel, or whether a violation of such an order would render

the declarations at issue invalid. While we need not consider the

matter to resolve Appellant’s case, we once again pause to

disavow the dubious practice of counsel conducting post-trial

interviews of members. Nor should litigants view our decision

today as an invitation to seek more detailed information from

members to determine whether UCI occurred in the deliberation

room. The military judge was well within his authority to restrict

the parties’ communications with members in his ruling. Federal

Courts have repeatedly upheld such orders and required counsel

to petition the court for permission to interview jurors. “Courts

simply will not denigrate jury trials by afterwards ransacking

the jurors in search of some ground, not previously supported by

evidence, for a new trial.” United States v. Riley, 544 F. 2d 237,

242 (5th Cir. 1976). Further, as the CAAF noted, “[t]o the extent

there is any justification for post-trial interviews (of members),

impeaching a verdict is not one of them.” United States v.

Ovando-Moran, 48 M.J. 300, 304 (C.A.A.F. 1998).

42

51a

within an exception contained in Mil. R. Evid. 606(b).

These statements are specifically: “During …

deliberations, some members discussed the USMC

and SAPR policy relating to: having to believe her

when discussing the alleged victim”;43 and “during …

deliberations, all members discussed the USMC and

SAPR policy relating to if someone has been drinking

alcohol then they can’t consent to sexual activities.”44

After evaluation of the contents of the declarations,

however, we find that the declarations do not contain

“some evidence” of UCI and therefore cannot be

attached to the record. These references to SAPR

training are more innocuous than the explicit use of

training by the Government (over Defense objection)

that the CAAF held did not constitute UCI in

Washington. They were not introduced by the

Government, and the military judge repeatedly

admonished the members to only consider the

evidence and law as he instructed.

Regarding 1stLt Hotel’s declaration, we find no

evidence in the record regarding a “USMC [or] SAPR

policy relating to: having to believe” an alleged victim,

nor does Appellant ask us to take judicial notice that

such a policy even exists. We are therefore left without

any information regarding what 1stLt Hotel meant by

his declaration, and we decline to engage in a fishing

expedition to suss out its meaning. Nor do we believe

that a DuBay hearing is appropriate given that this

line in the declaration on its face does not implicate a

Mil. R. Evid. 606 exception to Mil. R. Evid. 509.

43 Decl of 1stLt Hotel, para. 3

44 Decl of SSgt Papa, para. 4.

52a

There was discussion on the record regarding a

Marine Corps policy or training that said that anyone

who had one drink of alcohol could not consent to

sexual activity. This was primarily through the voir

dire of Capt Jordan. While Capt Jordan did discuss his

understanding of a “one drink” policy with the

military judge and the parties, and admitted to

discussing the definition of “consent” with the other

members prior to individual voir dire, there is no

evidence that Capt Jordan took any action with the

intent of influencing the court-martial. Indeed, the

record is unclear as to whether, and to what extent,

Capt Jordan even discussed policy issues with the

members prior to the military judge recalling them

and instructing them on the definition of consent.

What this case therefore lacks is any evidence that

someone attempted to use policy considerations to

influence the deliberations of the members. The

members’ passing reference to discussion of Marine

Corps policy during deliberation, without more, does

not rise to the level of 2ndLt Green’s letter in Dugan,

nor does it even rise to the level of concern the Army

court had in Schloff. There is no evidence that any

member who heard Appellant’s case had recently been

to a training espousing any policy on sexual assault

and consent, nor is there any evidence that any

member stated that the panel was obligated to follow

such a policy in their deliberations, or even that the

policy was to be considered. Courts have repeatedly

stated that if members discuss irrelevant matters

during deliberations, courts will not question or

permit external inquiry into these matters absent a

53a

very narrow set of circumstances. The fact that the

members discussed purported Marine Corps policies,

without more, simply does not demonstrate a violation

of Article 37.

B. Appellant is not entitled to reversal of his

convictions based on UCI.

Having decided that we cannot attach the

declarations of 1stLt Hotel and SSgt Papa, we must

still determine whether there is some evidence of UCI

in the record. We begin by again recognizing that the

threshold for an appellant to raise the issue of UCI is

very low. However, it still must be more than mere

speculation.45

Here, the record is completely lacking anything

beyond conjecture and speculation regarding the

question of UCI. Appellant seeks to place much

emphasis on Capt Jordan’s revelation during voir dire

that he had a discussion with the other members

about the definition of consent during a brief recess of

less than 15 minutes following the military judge’s

group voir dire session. However, careful review of

Capt Jordan’s colloquy with the military judge reveals

that, rather than injecting Marine Corps policy into

the deliberation room, Capt Jordan was confused

about his role as a potential member. No other

member recalled this discussion as being directive in

nature. (In fact, most members who were questioned

45 Gilmet, 83 M.J. at 403.

54a

did not recall the conversation at all, and those who

did found it unremarkable).

When the military judge questioned the members,

they all agreed that they would disregard Marine

Corps policy and decide Appellant’s case solely based

on the facts presented and the law as the military

judge instructed. After voir dire, the only mention of

SAPR training or Marine Corps policy in the record of

trial was by Appellant’s civilian defense counsel

during closing argument, who argued that the SAPR

training was wrong in saying that a person who had

any alcohol could not consent. Appellant then

requested that the military judge advise the members

of the definition of a “competent person” from the

Military Judges’ Benchbook, which the military judge

did.46

The discussion of SAPR training throughout this

trial was unremarkable. The military judge took great

pains to ensure that the members understood the law

and agreed to follow the law. Each of the members

agreed that they could do so. Even if we were to attach

those parts of the declarations of 1stLt Hotel and SSgt

Papa to the record relating to policy discussions in the

deliberation, we still would not find that there is some

evidence of UCI in this case. There is simply no

evidence that anyone sought to influence the members

of this court through SAPR training, or that the

members were so influenced.

46 Dep’t of the Army Pam. 27-9, para. 3a-44-2, note 6.

55a

III. CONCLUSION

After careful consideration of the record and briefs

of appellate counsel, we have determined that the

findings and sentence are correct in law and fact and

that no error materially prejudicial to Appellant’s

substantial rights occurred.47 The findings and

sentence are AFFIRMED.

U.S. NAVY-MARINE

FOR THE COURT:

CORPS COURT OF

/s/

CRIMINAL APPEALS

MARK K. JAMISON

Clerk of Court

47 Articles 59 & 66, UCMJ.

56a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

USCA Dkt. No. 26-0087/AF

Crim.App. No. 39889

v.

ORDER DENYING PETITION

Alexander L.

Driskill,

Appellant

On consideration of the petition for grant of review

of the decision of the United States Air Force Court of

Criminal Appeals, it is by the Court, this 16th day of

April, 2026,

ORDERED:

That the petition is hereby denied.

For the Court,

/s/

cc:

Malcolm H. Squires, Jr.

Clerk of the Court

The Judge Advocate General of the Air Force

Appellate Defense Counsel (Johnson)

Appellate Government Counsel (Payne)

57a

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39889 (rem)

________________________

UNITED STATES

Appellee

v.

Alexander L. DRISKILL

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

________________________

On Remand from

The United States Court of Appeals for the Armed

Forces

Decided 14 November 2025

________________________

Military Judge: Willie J. Babor; Dayle P. Percle

(remand).

Sentence: Sentence adjudged on 4 November 2019 by

GCM convened at Ramstein Air Base, Germany;

Aviano Air Base, Italy; and Buckley Air Force Base,

Colorado. Sentence entered by military judge on 2

March 2020, and reentered on 20 January 2022:

Dishonorable discharge, confinement for 40 years and

9 months, forfeiture of all pay and allowances, and

reduction to E-1.

For Appellant: Major Frederick J. Johnson, USAF.

58a

For Appellee: Colonel G. Matt Osborn, USAF; Colonel

Matthew D. Talcott, USAF; Lieutenant Colonel J.

Pete Ferrell, USAF; Lieutenant Colonel Jenny A.

Liabenow, USAF; Major Vanessa Bairos, USAF;

Major Brittany M. Speirs, USAF; Major Jocelyn Q.

Wright, USAF; Mary Ellen Payne, Esquire.

Before JOHNSON, DOUGLAS,

Appellate Military Judges.

and

MCCALL,

Chief Judge JOHNSON delivered the opinion of the

court, in which Judge MCCALL joined. Senior Judge

DOUGLAS filed a separate opinion concurring in the

result.

________________________

This is an unpublished opinion and, as such, does

not serve as precedent under AFCCA Rule of

Practice and Procedure 30.4.

________________________

JOHNSON, Chief Judge:

Appellant’s case is before this court for a third

time. A military judge found Appellant guilty, in

accordance with his pleas and pursuant to a pretrial

agreement (PTA), of one specification of wrongful

possession of obscene cartoons in violation of Article

134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 934.1 Contrary to his pleas, a general court1 As noted in this court’s previous opinion, the specifications

covered the time period from 11 October 2016 to 27 March 2018.

References to the punitive articles of the UCMJ are to the

Manual for Courts-Martial, United States (2016 ed.). Further,

the Military Justice Act of 2016, National Defense Authorization

Act for Fiscal Year 2017, Pub. L. No. 114-328, §§ 5001–5542 (23

Dec. 2016), as fully implemented by Exec. Order 13,825, 83 Fed.

Reg. 9889 (8 Mar. 2018), applied to Appellant’s court-martial and

post-trial processing. Unless otherwise noted, all other

references to the UCMJ, Rules for Courts-Martial, and Military

59a

martial composed of officer members found Appellant

guilty of the Additional Charge including one

specification of rape of a child (Specification 1) and one

specification of sexual abuse of a child (Specification

2), both in violation of Article 120b, UCMJ, 10 U.S.C.

§ 920b. The members sentenced Appellant to a

dishonorable discharge, confinement for 40 years and

9 months, forfeiture of all pay and allowances, and

reduction to the grade of E-1.2,3,4

The procedural history of this case is described in

this court’s 2022 opinion. See United States v. Driskill,

No. ACM 39889 (f rev), 2022 CCA LEXIS 496, at *2–5

(A.F. Ct. Crim. App. 23 Aug. 2022) (unpub. op.), rev’d,

84 M.J. 248 (C.A.A.F. 2024) (Driskill II). For purposes

of this opinion a condensed version will suffice. This

court previously reviewed this case twice. Upon initial

review, this court remanded the record because the

convening authority failed to take action as required

on Appellant’s entire sentence. United States v.

Driskill, No. ACM 39889, 2021 CCA LEXIS 672, at

*11–12 (A.F. Ct. Crim. App. 14 Dec. 2021) (unpub. op.)

(Driskill I). Following remand, this court’s subsequent

review affirmed the findings but approved only so

much of the sentence as provided for a dishonorable

discharge, confinement for 30 years, forfeiture of all

Rules of Evidence (Mil. R. Evid.) are to the Manual for CourtsMartial, United States (2019 ed.).

2 The military judge merged the specifications of rape of a child

and sexual abuse of a child for sentencing.

3 After trial,

the convening authority suspended the adjudged

forfeitures of all pay and allowances for six months, release from

confinement, or expiration of term of service, whichever was

sooner, with suspension commencing on 18 November 2019.

4 Appellant was credited with 278 days in pretrial confinement.

60a

pay and allowances, and reduction to the grade of E1. Driskill II, unpub. op. at *2, 57–58.

The United States Court of Appeals for the Armed

Forces (CAAF) granted review and held that

Appellant’s conviction for wrongful possession of

obscene cartoons in violation of Article 134, UCMJ,

violated prohibitions against double jeopardy. United

States v. Driskill, 84 M.J. 248, 249–50 (C.A.A.F. 2024).

The CAAF set aside the findings as to that charge and

specification and dismissed them with prejudice. Id.

at 257. The CAAF remanded the case to this court to

conduct “a new review under Article 66, UCMJ,” 10

U.S.C. § 866, specifically directing this court to

“evaluate the impact of [the CAAF’s] dismissal of the

Charge and its Specification on both (1) the findings

of the Additional Charge and its Specifications and (2)

the sentence.” Id.

I. BACKGROUND

Before the current charges and specifications were

preferred in this case, Appellant was tried in a

separate general court-martial at Aviano Air Base,

Italy. Id. at 250. In that case, the Government charged

Appellant with three specifications of violating Article

134, UCMJ, while he was stationed in Italy. The first

two specifications alleged child pornography offenses

and the third specification alleged knowing and

wrongful possession of obscene cartoons in violation of

18 U.S.C. § 1466(b)(1). Id. After the close of the

evidence, the military judge dismissed this latter

specification because she concluded 18 U.S.C.

§ 1466(b)(1) “is not a statute of extraterritorial

jurisdiction.” Id. at 251. However, she declined to

dismiss the specification with prejudice because she

61a

held the court-martial lacked jurisdiction to try that

offense. Id. Appellant was later acquitted of the

remaining two child pornography specifications. Id.

After the conclusion of his first court-martial, the

Government charged Appellant in the instant case

with one specification of possession of obscene

cartoons under Clause 2 of Article 134, UCMJ. The

Government also charged Appellant with two new

specifications under an Additional Charge, alleging

rape of a child and sexual abuse of a child in violation

of Article 120b, UCMJ. Appellant’s daughter, WD,

was the named victim in both of the Article 120b,

UCMJ, specifications. Before trial, Appellant’s trial

defense counsel filed a motion to dismiss the

possession of obscene cartoons specification on the

grounds of former jeopardy. The military judge denied

that motion.

Following this ruling, Appellant, pursuant to a

PTA, pleaded guilty to the possession of obscene

cartoons. After the military judge accepted

Appellant’s guilty plea, the parties proceeded to

litigate the Additional Charge and its two

specifications. A panel of members convicted

Appellant of both Article 120b, UCMJ, specifications.

As noted above, this court’s subsequent review

affirmed the findings as entered, but reduced

Appellant’s term of confinement to 30 years as a

matter of sentence appropriateness.

The CAAF later set aside the findings on the

Charge and Specification for possession of obscene

cartoons and dismissed the Charge and Specification

with prejudice. Id. at 257. The CAAF concluded that

the prosecution of this offense was barred due to

former jeopardy because the first court-martial had

62a

jurisdiction to prosecute Appellant for this offense,

jeopardy attached during the first court-martial, and

the specification for possessing obscene cartoons was

for the same offense as in the first court-martial. Id.

at 253–54. Our superior court then remanded the case

for a “new review under Article 66, UCMJ,” with

specific direction to “evaluate the impact” of the

dismissal of the Article 134, UCMJ, charge and

specification on the remaining findings of guilty as to

the Article 120b, UCMJ, offenses and the sentence. Id.

at 257.

We conclude the error with respect to former

jeopardy did not affect the findings as to the Article

120b, UCMJ, offenses, and we reassess the sentence

in light of the CAAF’s dismissal of the Article 134,

UCMJ, charge.

II. DISCUSSION

A. Additional Background

Appellant entered into a PTA whereby he agreed

to plead guilty to the wrongful possession of obscene

cartoons in violation of Article 134, UCMJ, while

pleading not guilty to the Article 120b, UCMJ,

offenses. Appellant further agreed to enter into a

reasonable stipulation of fact which would include,

inter alia, that although Appellant did not know how

many obscene cartoons he possessed, “the number was

well in excess of 100.” The PTA further provided:

In exchange for what [Appellant] ha[s]

offered to do via the proposed pretrial

agreement . . . the Convening Authority

agrees to direct the trial counsel to offer

into evidence (1) an agreed upon exhibit

63a

containing no more than 100 cartoon

images in support of the Specification of

the Charge, and (2) an exhibit containing

no more than 50 images to be used for

purposes of [Mil. R. Evid.] 404(b). The

exhibit containing no more than 100

cartoon images in support of the

Specification of the Charge will be

attached to the stipulation of fact as

Attachment 1. The exhibit containing no

more than 50 images to be used for

purposes of [Mil. R. Evid.] 404(b) will be

marked as a Prosecution Exhibit for

Identification. The

images

in

Attachment 1 will not contain hearsay

(text in any language). If any of the

images contained on the exhibit marked

as

a

Prosecution

Exhibit

for

Identification contain text in any

language, [Appellant] reserve[s] the

right, through counsel, to object to those

images and their accompanying text on a

hearsay basis, and to have [Appellant’s]

objection heard by the Military Judge.

[A]ppellant also reserves the right to

object to the images contained on the

exhibit marked as a Prosecution Exhibit

for Identification on any other applicable

basis,

except

foundation,

which

[Appellant] agree[s] to waive via this

pretrial agreement offer.

During the military judge’s providency inquiry

with respect to Appellant’s plea of guilty to possession

of obscene cartoons, the Government admitted a

stipulation of fact as Prosecution Exhibit 1 (PE 1).

64a

Consistent with the PTA, in the stipulation Appellant

admitted inter alia that he possessed well in excess of

100 obscene cartoons on his electronic devices, and

that he possessed these obscene cartoons “because, to

him, they were sexually arousing.” Attached to PE 1

was a sealed computer disc that contained 100 of the

obscene cartoons Appellant possessed, which included

depictions of young girls in various sexually explicit

situations, including engaging in sexual acts with

adult men.

Pursuant to Mil. R. Evid. 404(b), the military judge

allowed the Government to use the attachment to PE

1 as evidence of Appellant’s motive and intent with

respect to the litigated Article 120b, UCMJ, offenses

Appellant was charged with committing on his

daughter WD. In addition, the military judge

permitted the Government to introduce a second disc

containing 50 more cartoon images Appellant

possessed as Prosecution Exhibit 2 (PE 2), also as

evidence of Appellant’s motive and intent as to the

Article 120b, UCMJ, offenses under Mil. R. Evid.

404(b).5 The images in PE 2 were of a generally

similar nature to those in the attachment to PE 1.

During the Government’s opening statement, trial

counsel referred to Appellant being “sexually aroused”

by the obscene cartoons, and in particular images of

5 More precisely, the military judge permitted the Government

to use the images from the attachment to PE 1 and from PE 2 as

evidence of motive with respect to Specifications 1 and 2 of the

Additional Charge, and as evidence of intent with respect to

Specification 2 of the Additional Charge. The military judge

explained this was because “there’s no intent requirement for

Specification 1 of the Additional Charge,” rape of a child in

violation of Article 120b, UCMJ.

65a

what “appear to be children performing sexual acts on

their fathers.”

When the Government published the attachment

to PE 1 to the court members, the military judge

instructed them:

This evidence, that the accused

knowingly and wrongfully possessed

obscene cartoons, may be considered for

the limited purpose of it’s [sic] tendency,

if any, to prove [Appellant’s] motive to

commit Specification 1 or 2 of the

Additional Charge, as well as to prove

that [Appellant] intended to commit the

offense alleged in Specification 2 of the

Additional Charge.

You may not consider this evidence for

any other purpose, and you may not

conclude or infer from this evidence that

[Appellant] is a bad person or has

criminal tendencies and that, therefore,

he committed the offenses alleged in the

Additional Charge.

The military judge provided a similar instruction

when the Government published PE 2 to the court

members.

At trial, Appellant’s spouse HD testified about a

conversation she had with Appellant while they were

living in Italy with WD. In this conversation,

Appellant became emotional and told HD that “he

couldn’t stop looking at little girls.” When HD asked

Appellant to explain, he showed her images of child

pornography on his computer, specifically “children

engaging in sexual acts.” When HD asked Appellant

“if he would ever touch a child, a little girl,” Appellant

66a

responded, “I don’t know, because I can’t even stop

looking at a picture.” HD testified she told Appellant

she would consider not divorcing him or turning him

in if he got “rid of” the child pornography and

promised he would “never do this again.” Appellant

then destroyed two USB drives as HD watched.

Regarding this evidence, the military judge provided

the court members a similar Mil. R. Evid. 404(b)

instruction as he had with the attachment to PE 1 and

PE 2. Specifically, the military judge instructed the

members could consider evidence Appellant “may

have shown [HD] images of child pornography, and

commented on his willingness to commit crimes

similar to those in the images” only as evidence of

motive as to Specifications 1 and 2 of the Additional

Charge and evidence of intent as to Specification 2 of

the Additional Charge.

The court members were informed at several

points that Appellant had pleaded guilty to the

Charge and Specification alleging possession of

obscene cartoons in violation of Article 134, UCMJ.

During closing argument, trial counsel referred

several times to the obscene cartoons and Appellant’s

admission that he found them sexually arousing.

When the military judge delivered his instructions

on findings he advised the court members:

An accused may be convicted based

only on evidence before the court, and

not on evidence of a general criminal

disposition. Each offense must stand on

its own and you must keep the evidence

of each offense separate.

Stated differently, if you find or believe

that the accused is guilty of one offense,

67a

you may not use that finding or belief

as a basis for inferring, assuming, or

proving that he committed any other

offense. If evidence has been presented

which is relevant to more than one

offense, you may consider that evidence

with respect to each offense to which it

is relevant.

The burden is on the prosecution to

prove each and every element of each

offense beyond a reasonable doubt.

Proof of one offense carries with it no

inference that the accused is guilty of

any other offense.

The military judge also repeated the instruction

that evidence Appellant “knowingly and wrongfully

possessed obscene cartoons” could be considered

only “for the limited purpose of its tendency, if any, to

prove the accused’s motive to commit Specification 1

or 2 of the Additional Charge, as well as to prove that

the accused intended to commit the offense alleged in

Specification 2 of the Additional Charge.”

B. Law

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

“the Court of Criminal Appeals conducts a de novo

review of the record for legal sufficiency, factual

sufficiency, and sentence appropriateness.” United

States v. McAlhaney, 83 M.J. 164, 166 (C.A.A.F. 2023)

(citation omitted).

The Fifth Amendment6 guarantees that “[n]o

person shall . . . be subject, for the same offense, to be

6 U.S. CONST. amend. V.

68a

twice put in jeopardy of life or limb.” U.S. Const.

amend. V, cl. 2. This provision consists of

three separate constitutional guarantees for an

accused: (1) protection against a second prosecution

for the same offense after an acquittal; (2) protection

against a second prosecution for the same offense after

a conviction; and (3) protection against multiple

punishments for the same offense. North Carolina v.

Pearce, 395 U.S. 711, 717 (1969). Article 44, UCMJ, 10

U.S.C. § 844, incorporates these same constitutional

guarantees for service members. United States v.

Easton, 71 M.J. 168, 170 (C.A.A.F. 2012) (citation

omitted).

Where an error is of constitutional dimensions, an

appellate court may not affirm the result unless the

error was harmless beyond a reasonable doubt. United

States v. Mason, 59 M.J. 416, 424 (C.A.A.F. 2004).

This “standard is met where a court is confident that

there was no reasonable possibility that the error

might have contributed to the conviction.” United

States v. Prasad, 80 M.J. 23, 29 (C.A.A.F. 2020)

(citations omitted).

In order to convict Appellant of rape of a child as

alleged in Specification 1 of the Additional Charge, the

Government was required to prove: (1) Appellant

committed a sexual act on WD, to wit penetrating her

mouth with his penis; and (2) at the time WD was

under the age of 12 years. See Manual for CourtsMartial, United States (2016 ed.) (2016 MCM), pt. IV,

¶ 45b.a.(a). In order to convict Appellant of sexual

abuse of a child as alleged in Specification 2 of the

Additional Charge, the Government was required to

prove: (1) Appellant committed a lewd act on WD by

causing her to touch, directly or through clothing, his

genitalia; (2) at the time WD was under the age of 12

69a

years; and (3) Appellant did so with the intent to

gratify his sexual desire. 2016 MCM, pt. IV, ¶

45b.a.(c).

Mil. R. Evid. 404(b) provides that evidence of a

crime, wrong, or other act by a person is generally not

admissible as evidence of the person’s character in

order to show the person acted in conformity with that

character on a particular occasion. However, such

evidence may be admissible for another purpose,

including, inter alia, proving motive or intent with

respect to a charged offense. Mil. R. Evid. 404(b)(2).

Court members are presumed to follow the

military judge’s instructions absent evidence to the

contrary. United States v. Taylor, 53 M.J. 195, 198

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

C. Analysis

As an initial matter, as stated above, the CAAF set

aside this court’s prior opinion in Driskill II in its

entirety and directed a new Article 66, UCMJ, review.

Driskill, 84 M.J. at 257. Following the remand from

the CAAF, both parties addressed the impact of the

dismissal of the Charge and Specification on the other

findings and the sentence, which the CAAF directed

this court to consider. However, neither party has

asked this court to readdress any of the other issues

this court addressed previously in Driskill II. See

Driskill II, unpub. op. at *14–36, 43–58. Having

reviewed this court’s prior opinion, and in the absence

of any new argument from the parties, we resolve

these issues—excepting the issue of former jeopardy—

consistent with this court’s prior opinion, with the

additional caveat that we readdress the question of

sentence appropriateness at the conclusion of our

opinion below.

70a

1. Effect on Remaining Findings of Guilty

Turning to the question our superior court directed

us to address, Appellant contends this court should set

aside the findings of guilty as to the Article 120b,

UCMJ, offenses because those findings were

improperly influenced by the erroneous prosecution

for possessing obscene cartoons in violation of Article

134, UCMJ. In the alternative, Appellant contends

that if this court affirms the Article 120b, UCMJ,

convictions, it should remand the case for a rehearing

as to the sentence. Appellant further alternatively

argues that if this court instead reassesses the

sentence, it should approve no more than 15 years of

confinement. In contrast, the Government contends

this court should affirm the remaining findings of

guilty and reassess Appellant’s sentence to the same

sentence it previously affirmed in Driskill II,

including a 30-year term of confinement, or at most

reduce that term of confinement by four months.7

Neither party’s analysis explicitly tests the impact

of Appellant’s erroneous prosecution for possessing

obscene cartoons for harmlessness beyond a

reasonable doubt, despite the CAAF’s finding of

constitutional error. See Driskill, 84 M.J. at 250, 256;

The Government’s position with regard to the sentence is

facially somewhat contradictory. On one hand, the Government

asserts “Appellant is well-deserving of his 30-year confinement

sentence.” On the other hand, the Government contends this

court should “affirm the findings and sentence in this case.” The

Government appears to overlook the fact that when the CAAF

set aside this court’s opinion in Driskill II, it also set aside the

reduction of Appellant’s term of confinement from the adjudged

40 years and 9 months to 30 years. Viewed as a whole, in light of

the circumstances, we understand the Government’s position to

be that this court should approve a 30-year term of confinement.

7

71a

Mason, 59 M.J. at 424. Instead, both parties employ

the “three-pronged test to assess the danger” of

impermissible spillover stated in United States v.

Kerr: “(1) whether the evidence of one offense would

be admissible proof of the other; (2) whether the

military judge has provided a proper limiting

instruction; and (3) whether the findings reflect an

impermissible crossover.” 51 M.J. 401, 406–07

(C.A.A.F. 1999) (quoting United States v. Southworth,

50 M.J. 74, 76 (C.A.A.F. 1999)). In Southworth, 50

M.J. at 76–78, and United States v. Curtis, 44 M.J.

106, 128–29 (C.A.A.F. 1996), the CAAF used these

factors to determine that military judges did not abuse

their discretion by denying motions to sever offenses.

In Kerr, the CAAF applied this test to determine

whether the appellant “was prejudiced by the

spillover effect” of evidence of uncharged misconduct,

concluding he was not. 51 M.J. at 406–07.

However, we find the test articulated in Kerr to be

of limited value in the instant case. Unlike Kerr,

Southworth, and Curtis, here we must test a

constitutional error for harmlessness beyond a

reasonable doubt. Although the individual elements of

the Kerr test bear consideration as part of the totality

of the circumstances, the ultimate question remains

whether we can be confident beyond reasonable doubt

Appellant’s erroneous prosecution for possession of

obscene cartoons did not contribute to his Article

120b, UCMJ, convictions. See Prasad, 80 M.J. at 29.

Considering the circumstances as a whole, we are

satisfied beyond a reasonable doubt the error did not

influence Appellant’s convictions for rape of a child

and sexual abuse of a child. The essential questions

include (1) what, if anything, would have transpired

differently at Appellant’s court-martial with respect

72a

to the litigated Article 120b, UCMJ, offenses if the

double jeopardy violation had not occurred, and (2)

how might these differences have affected the

outcome. Of course, without the Article 134, UCMJ,

charge, there would have been no guilty plea, no PTA,

and no stipulation of fact. These are significant

differences in themselves, but the essential question

is how these changes would have affected the

litigation of the contested offenses. We find three

significant points that warrant discussion: use of the

obscene images as Mil. R. Evid. 404(b) evidence of

Appellant’s motive and intent; informing the court

members that Appellant had pleaded guilty to the

wrongful possession of obscene cartoons; and

Appellant’s admission in PE 1 that he found the

obscene images sexually arousing.

First, we find the Government would have

introduced some number of the obscene images that

were the subject of the Article 134, UCMJ, charge as

Mil. R. Evid. 404(b) evidence of motive and intent of

the Article 120b, UCMJ offenses, even if the

possession of obscene images had not been charged.

Appellant’s possession of a large number of sexually

explicit cartoon images of young girls, including young

girls engaged in sexual acts with adult men, was

relevant evidence of a particular sexual interest in

young girls. Such an interest indicated a motive for

Appellant to commit sexual acts with his then

approximately two-year-old daughter WD. It is true

the PTA anticipated the parties would agree upon no

more than 100 images to be attached to the stipulation

of fact as evidence of Appellant’s guilt of the Article

134, UCMJ, offense, and that the Government would

offer an additional exhibit with no more than 50

additional images as a separate prosecution exhibit.

73a

However, this provision was styled as a commitment

by the convening authority in exchange for

Appellant’s guilty plea rather than a concession by

Appellant. The PTA terms did not prohibit the

Defense from opposing the use of these images as Mil.

R. Evid. 404(b) evidence of the contested offenses.

However, at trial, although the Defense objected to file

names and certain words included with images in PE

2, they did not object to the attachment to PE 1 or PE

2 as Mil. R. Evid. 404(b) on relevance grounds. This

suggests both parties believed the obscene images

were Mil. R. Evid. 404(b) evidence of motive and

intent. In any event, whether the Defense had opposed

the images or not, we are convinced that without the

guilty plea and PTA the Government would have

successfully introduced some representative sample of

the large number of obscene images of young girls to

support the inference Appellant had motive and

intent to commit sexual acts with WD, with

appropriate limiting instructions similar to those the

military judge provided at trial.

Next, we have considered that the court members

were informed at various points that Appellant

pleaded guilty to wrongfully possessing obscene

cartoons. However, the military judge provided

appropriate anti-spillover instructions to the effect

that Appellant’s guilt of that offense could not be used

to infer, assume, or prove he was guilty of the

contested offenses. Court members are presumed to

follow the military judge’s instructions absent

evidence to the contrary. Taylor, 53 M.J. at 198. We

do not find such evidence here. Accordingly, we

conclude the information Appellant pleaded guilty to

with respect to the Article 134, UCMJ, charge did not

74a

contribute to his convictions for the contested

offenses.

Turning to Appellant’s admission in the

stipulation of fact that he found the obscene images

sexually arousing, his sexual interest was plainly

implied by his possession of a large number of such

images even if he had not explicitly admitted it. The

images in question are pornographic as well as

obscene. Although during argument trial counsel

might not have been able to recite Appellant’s own

words to the court members in quite the same way,

trial counsel would have been able to direct the court

members to the same inferences and conclusions. This

is particularly so when the obscene images are viewed

in conjunction with his wife HD’s testimony that

Appellant had showed her a collection of images of

child pornography, admitted he could “not stop

looking at little girls,” and said he did not know if he

would “ever touch a child, a little girl.” We conclude

beyond a reasonable doubt the findings as to the

contested offenses would have been the same

regardless of the existence of this admission in the

stipulation of fact.

Considering the entirety of the evidence and the

totality of the circumstances,8 we are convinced

beyond a reasonable doubt the findings as to rape of a

child and sexual abuse of a child in violation of Article

120b, UCMJ, would have been unchanged had the

double jeopardy violation not occurred.9

8 For a more detailed description and analysis of the evidence

supporting Appellant’s convictions for rape of a child and sexual

abuse of a child, see Driskill II, unpub. op. at *5–23.

9 In addition, to the extent the Kerr test described supra applies

to our inquiry, we find all three prongs weigh in favor of finding

75a

2. Sentence Reassessment

Next we consider whether, in light of the CAAF’s

dismissal of the Article 134, UCMJ, charge, we can

reliably reassess Appellant’s sentence, or instead

must remand the case for a rehearing on the sentence.

See United States v. Winckelmann, 73 M.J. 11, 15–16

(C.A.A.F. 2013). Our task is to discern whether we can

“determine to [our] satisfaction that, absent any error,

the sentence adjudged would have been of at least a

certain severity.” Id. at 15 (quoting United States v.

Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006)) (additional

citation omitted). Because the error was of

constitutional dimensions, we must ensure a

reassessment excises the prejudice beyond a

reasonable doubt. See Mason, 59 M.J. at 424. We find

that we can reliably reassess.

First, we find there has not been a dramatic

change in the penalty landscape and Appellant’s

exposure. See id. The maximum imposable

punishment for the convicted offenses remains

unchanged, including inter alia confinement for life

without the possibility of parole and a mandatory

dishonorable

discharge.

This

factor

favors

reassessment.

no impermissible spillover. 51 M.J. at 406–07. With regard to the

first prong, as described above, evidence of the obscene cartoons

would have been admissible proof of the Article 120b, UCMJ,

offenses to the extent that they demonstrated motive and intent

consistent with Mil. R. Evid. 404(b). In other words, the impact

of the obscene cartoon evidence would have been much the same

with or without the Article 134, UCMJ, charge. As to the

remaining prongs, the military judge did provide appropriate

limiting instructions, and the findings do not reflect improper

spillover given the strength of the proper evidence of the Article

120b, UCMJ, offenses.

76a

Second, Appellant was sentenced by court

members rather than the military judge. See id. at 16.

This factor favors a rehearing.

Third, the remaining offenses “capture the

gravamen of the criminal conduct included within the

original offenses.” Id. By multiple measures, the

significance of Appellant’s convictions for rape of a

child and sexual abuse of a child was far greater than

that of his conviction for possession of obscene

cartoons. This factor favors reassessment.

Fourth, the remaining offenses of rape of a child

and sexual abuse of a child are of a type the judges of

this court “have experience and familiarity with.” Id.

This factor also favors reassessment.

In addition, recognizing these four factors are

“illustrative, but not dispositive,” we note an

additional significant aspect of this case. Id. at 15. The

court members adjudged a term of confinement of 40

years and 9 months, but in Driskill II this court

reduced the term of confinement to 30 years as a

matter of sentence appropriateness. Driskill II,

unpub. op. at *57. We are confident beyond a

reasonable doubt that without the Article 134, UCMJ,

conviction, the court members would have sentenced

Appellant to at least 30 years in confinement. In

addition, we find such a term of confinement is not

inappropriately severe for the remaining convictions.

Accordingly, we reassess Appellant’s sentence to a

dishonorable discharge, confinement for 30 years,

forfeiture of all pay and allowances, and reduction to

the grade of E-1.

D. Post-Trial Delay

On 1 April 2024, Appellant’s record of trial was

redocketed with this court following the CAAF’s

77a

remand. Appellant requested and was granted 11

enlargements of time, over the Government’s

opposition, before filing his brief on 27 May 2025. The

Government timely filed its response on 26 June 2025,

and Appellant filed a reply brief on 3 July 2025.

“[C]onvicted servicemembers have a due process

right to timely review and appeal of courts-martial

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

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

CAAF established a presumption of facially

unreasonable delay “where appellate review is not

completed and a decision is not rendered within

eighteen months of docketing the case before the

Court of Criminal Appeals.” 63 M.J. at 142. Where

there is a facially unreasonable delay, we examine the

four factors set forth in Barker v. Wingo, 407 U.S. 514,

530 (1972): “(1) the length of the delay; (2) the reasons

for the delay; (3) the appellant’s assertion of the right

to timely review and appeal; and (4) prejudice [to the

appellant].” Id. at 135 (citations omitted). The CAAF

identified three types of cognizable prejudice for

purposes of an appellant’s due process right to timely

post-trial review: (1) oppressive incarceration; (2)

“particularized” anxiety and concern “that is

distinguishable from the normal anxiety experienced

by prisoners awaiting an appellate decision;” and (3)

impairment of the appellant’s grounds for appeal or

ability to present a defense at a rehearing. Id. at 138–

40 (citations omitted). Where there is no qualifying

prejudice from the delay, there is no due process

violation unless the delay is so egregious as to

“adversely affect the public’s perception of the fairness

and integrity of the military justice system.” United

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

review de novo an appellant’s entitlement to relief for

78a

post-trial delay. United States v. Livak, 80 M.J. 631,

633 (A.F. Ct. Crim. App. 2020) (citing Moreno, 63 M.J.

at 135).

Over 18 months have elapsed since Appellant’s

record of trial was redocketed with this court.

Therefore, under Moreno, there is a facially

unreasonable delay. We have considered the Barker

factors and find no violation of Appellant’s due process

rights. Appellant has not specifically alleged

cognizable prejudice from the delay, and under the

circumstances we do not discern any oppressive

incarceration, particularized anxiety or concern,

impairment to any further appeal, and no rehearing

has been directed. Absent prejudice, we find the

delay—primarily attributable to Appellant’s 11

motions for enlargement of time—has not been so

egregious as to adversely affect the perception of the

military justice system. Accordingly, we find no

violation of Appellant’s due process rights; nor do we

find any relief warranted in the absence of a due

process violation. See 10 U.S.C. § 866(d)(2); United

States v. Valentin-Andino, 85 M.J. 361, 364 (C.A.A.F.

2025).

III. CONCLUSION

We reassess the sentence to a dishonorable

discharge, confinement for 30 years, forfeiture of all

pay and allowances, and reduction to the grade of E1. The remaining findings of guilty as to Specifications

1 and 2 of the Additional Charge and the Additional

Charge, and the sentence, as reassessed, are correct

in law and fact, and no additional error materially

prejudicial to the substantial rights of Appellant

occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C.

79a

§§ 859(a), 866(d). The findings of guilty as to

Specifications 1 and 2 of the Additional Charge and

the Additional Charge, and the sentence, as

reassessed, are AFFIRMED.

DOUGLAS, Senior Judge (concurring in the

result):

I concur in the result for the remaining findings

of guilty and the sentence. However, I write

separately because, in my opinion, our new Article 66,

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

§ 866, de novo review, hinges upon two separate

standards of review of disparate evidence.

Because our superior court set aside one of

Appellant’s convictions, determined after a guilty plea

and pursuant to a pretrial agreement, we must decide

which evidence, if any, is available for our

consideration of whether the remaining findings and

sentence are correct in law and fact, or whether any

error occurred that was materially prejudicial to the

substantial rights of Appellant. Articles 59(a) and

66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).

A. Harmless Beyond a Reasonable Doubt: The

Stipulation of Fact

At trial, Appellant entered a plea of guilty to

violating one specification of Article 134, UCMJ, 10

U.S.C. § 934, knowing and wrongful possession of

obscene cartoons. Appellant agreed he would “enter

into a reasonable stipulation of fact.” The stipulation

of fact was entered as evidence, and labeled

Prosecution Exhibit 1 (PE 1).

80a

PE 1 is a two-page document and was used by the

trial judge in his providency inquiry with Appellant.

Paragraph five reads as follows:

The [Appellant] agrees and admits that

he

wrongfully

possessed

obscene

cartoons. The cartoons were obscene in

that their sexual content was patently

offensive in light of community

standards.

Finally,

the

cartoons

possessed by the [Appellant] lacked

serious literary, artistic, political, or

scientific value. The [Appellant] did not

possess these obscene cartoons for any

artistic

reason.

The

[Appellant]

possessed these obscene cartoons because,

to him, they were sexually arousing.

(Emphasis added).

Appellant informed the members of his guilty plea

and agreed that PE 1 could be used as evidence of the

contested findings. Trial counsel referred to the

emphasized language above, in part, to rationalize for

the members Appellant’s actions as alleged in the

contested findings.

Independent of the stipulation of fact, Appellant’s

spouse, HD, testified that after Appellant showed her

certain images of children on his computer, she asked

him if “he got off on this?” Appellant replied, “Why

does anybody look at pornography, [HD]?” The trial

judge admitted this evidence under Mil. R. Evid.

404(b), as well as additional evidence, discussed

below.

A plea agreement may include a promise by the

accused to plead guilty to, or to enter a “confessional”

stipulation. R.C.M. 705(b)(1). “Confession” means an

81a

acknowledgement of guilt. Mil. R. Evid. 304(a)(1)(B).

The Fifth Amendment right against selfincrimination1 and Article 31, UCMJ, 10 U.S.C. § 831,

apply during pretrial and trial stages. United States

v. Scott, 51 M.J. 326, 329 (C.A.A.F. 1999).

Where an error is of constitutional dimensions, an

appellate court may not affirm the result unless the

error was harmless beyond a reasonable doubt. United

States v. Mason, 59 M.J. 416, 424 (C.A.A.F. 2004). An

error is harmless beyond a reasonable doubt when the

error did not contribute to Appellant’s conviction or

sentence. United States v. Hills, 75 M.J. 350, 357

(C.A.A.F. 2016). This “standard is met where a court

is confident that there was no reasonable possibility

that the error might have contributed to the

conviction.” United States v. Prasad, 80 M.J. 23, 29

(C.A.A.F. 2020) (citations omitted).

Here, Appellant agreed that the confessional

stipulation of fact, for the offense set aside, could be

used against him for the contested offenses. Because

the trial judge admitted it not only for the providency

inquiry, but also for these purposes, this is error.

However, I find it harmless error.

First, Appellant’s confession, as written in PE 1,

that he “possessed these obscene cartoons because, to

him, they were sexually arousing” does not prove most,

if not all, of the elements of either remaining

conviction (rape of a child and sexual abuse of a child).

The two elements of child rape include a sexual act

against WD, and that she had not yet attained the age

of 12. The three elements of sexual abuse of a child

1 U.S. CONST. amend. V.

82a

include a lewd act upon WD, that she had not yet

attained the age of 12, and that his intent was to

gratify his sexual desire. At best, Appellant’s

confession that the cartoon images were sexually

arousing could be used to explain his intent for the

lewd act upon WD. Assuming Appellant’s confession

satisfies element three of the offense of sexual abuse

of WD, the Government still must prove the

remaining elements of both offenses.

Second, Appellant’s confession was redundant to

the sarcastic response he made to his spouse. She

asked him, did he “get off” on the images he possessed

and showed her. In more precise terms, HD asked

Appellant if he was sexually aroused by looking at the

images he showed her. His sarcastic reply, “why does

anybody look at pornography,” was in effect, an

affirmative, “yes.” Therefore, even without the

confessional stipulation of fact, the Government

admitted another confession, albeit through a

witness, and under Mil. R. Evid. 404(b).

Therefore, I am confident admitting the

confessional stipulation of fact did not contribute to

Appellant’s remaining convictions. Hills, 75 M.J. at

375.

B. Abuse of Discretion: The Evidence of Crimes,

Wrongs, or Other Acts

One evening, HD asked Appellant to tuck her into

bed. They discussed whether either was hiding

anything from the other. Appellant admitted he had

been hiding something for some time. Appellant then

told HD that he “could not stop looking at little girls.”

HD was confused. They walked from the bedroom to

their living room, where Appellant had his laptop

computer. Appellant and HD sat down, and Appellant

83a

began to show HD images. The images were of child

pornography. HD then asked Appellant if he “got off

on this,” which Appellant replied, “Why does anybody

look at pornography, [HD]?” HD asked how he came

to have these images, and Appellant explained he

searched for them on the “black web.” HD asked

Appellant if he would ever “touch a child, a little girl.”

Appellant replied, “I don’t know because I can’t even

stop looking at a picture.” HD told Appellant to “get

rid” of these images, and if he agreed to not look at

these images again, she would not divorce him or

report him. In front of her, Appellant threw one USB

(Universal Serial Bus) drive into their fireplace and

another he “tore into pieces” and threw in the trash.

HD believed those were the only devices he had that

contained images of this type. The next morning,

Appellant denied that he would ever touch a child.

In response to a defense motion to exclude portions

of HD’s testimony, the trial judge ruled admissible

under Mil. R. Evid. 404(b) that (1) Appellant showed

images of child pornography to HD, and that (2)

Appellant commented to HD upon his willingness to

commit similar acts upon children to those

demonstrated in the images.

The trial judge explained this evidence was to

show motive as to both child rape and sexual abuse of

a child, and intent as to sexual abuse of a child. The

rationale was due to the similarity between the

admitted Mil. R. Evid. 404(b) evidence and the

charged offenses.

Specific to motive, the trial judge ruled that the

trier of fact, when considering Appellant’s motives for

committing the contested offenses could consider the

charged acts served as an “outlet for the emotion of

84a

lust.” Specific to intent, the trial judge ruled that the

trier of fact, when considering Appellant’s intent in

the commission of sexual abuse of a child, could

consider Appellant’s state of mind.

For both motive and intent, the trial judge

determined the similarity was sufficient between the

admitted Mil. R. Evid. 404(b) evidence and the alleged

crimes to satisfy the three-part test of United States v.

Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). The trial

judge relied primarily upon the rationale provided in

United States v. Hays, 62 M.J. 158, 164 (C.A.A.F.

2005).

PE 1 has one attachment: a disc containing 100

cartoon images. Pursuant to the pretrial agreement,

PE 1, including the attachment, would be admitted “in

support of” the now set aside offense. The 100 cartoon

images were lawfully seized by the Government. At

trial, Appellant and counsel for both sides agreed the

use of these images would be to show Appellant’s

“motive with respect to both [remaining offenses], and

his intent with respect to the second [offense (sexual

abuse of a child)].”

PE 2 is a separate disc containing an additional 50

cartoon images. This exhibit was also referenced in

the pretrial agreement. Explicitly, this exhibit would

be admitted “for purposes of [Mil. R. Evid.] 404(b) . . .”

The trial judge ruled PE 2 would be admitted under

Mil. R. Evid. 404(b) “consistent with the 404[(b)]

ruling earlier in this case.” These images were also

lawfully seized by the Government.

We review the trial judge’s decision to admit or

exclude evidence for abuse of discretion. United States

v. Greene-Watson, 85 M.J. 340, 345 (C.A.A.F. 2025)

(citing United States v. Wilson, 84 M.J. 383, 390

85a

(C.A.A.F. 2024)). Trial judges abuse their discretion if:

(1) the findings of fact upon which they predicate their

ruling are not supported by the evidence of record; (2)

they use incorrect legal principles; or (3) their

application of the correct legal principles to the facts

is clearly unreasonable. Id.

Trial judges are tasked with giving proper

instructions including limiting instructions to

preclude spillover from one offense to another distinct

offense. See United States v. Southworth, 50 M.J. 74,

76–78 (C.A.A.F. 1999).

“Evidence of a crime, wrong, or other act . . . may

be admissible for another purpose, such as proving

motive . . . [or] intent . . . .” Mil. R. Evid. 404(b)(2);

United States v. Wilson, 84 M.J. 383, 390 (C.A.A.F.

2024).

“Motive evidence shows the doing of an act by a

particular person by evidencing an emotional need in

that person which could have incited or stimulated

that person to do that act in satisfaction of that

emotion.” United States v. Whitner, 51 M.J. 457, 461

(C.A.A.F. 1999) (citing United States v. Watkins, 21

M.J. 224, 227 (C.M.A. 1986)). Possession of a “large

number” of sexual materials in the military barracks

room, including some depicting acts similar to those

particularly charged, reasonably suggests an

emotional need for committing the charged

misconduct. See id. (citing United States v. Rhea, 33

M.J. 413, 422 (C.M.A. 1991)) (additional citation

omitted).

When considering whether uncharged misconduct

constitutes admissible evidence of intent under Mil. R.

Evid. 404(b), we consider “whether Appellant’s state

of mind in the commission of both the charged and

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uncharged acts was sufficiently similar to make the

evidence of the prior acts relevant on the intent

element of the charged offenses.” United States v.

Hays, 62 M.J. 158, 164 (C.A.A.F. 2005) (quoting

United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F.

2004)). “Extrinsic acts of evidence may be critical to

the establishment of the truth as to a disputed issue,

especially when that issue involves the actor’s state of

mind and the only means of ascertaining that mental

state is by drawing inferences from conduct.” Id.

(quoting United States v. Tanksley, 54 M.J. 169, 176

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

485 U.S. 681, 685 (1988)).

Appellate courts apply a three-part test “to assess

the danger of spillover: (1) whether the evidence of one

offense would be admissible proof of the other; (2)

whether the military judge has provided a proper

limiting instruction; and (3) whether the findings

reflect impermissible crossover.” United States v.

Kerr, 51 M.J. 401, 406 (C.A.A.F. 1999) (citing

Southworth, 50 M.J. at 76–78, and then citing United

States v. Curtis, 44 M.J. 106, 128 (C.A.A.F. 1997)).

Here, regardless of the references in the pretrial

agreement to the cartoon image exhibits, and despite

Appellant’s agreement the members could consider

the cartoon exhibits for the contested offenses, the

trial judge thoroughly reviewed the facts, and the case

law before providing his rulings. There were multiple

motions and motions hearings, with witnesses,

evidence, and arguments. After meticulous analysis,

the trial judge admitted two portions of HD’s

testimony, the attachment to PE 1, and PE 2 under

Mil. R. Evid. 404(b), for motive and intent. For

purposes of this de novo review, Appellant objects on

appeal, to our consideration of all this evidence.

87a

Appellant contends the trial judge admitted this

evidence contrary to impermissible spillover.

I find the trial judge did not abuse his discretion.

The trial judge’s facts are well supported by the

evidence. His applied the correct legal principles and

his application of the correct legal principles was

reasonable and measured.

Appellant’s spouse, HD, explained the context in

which Appellant showed her images of “child

pornography” on his computer. When HD asked

Appellant if he would ever “touch a child, a little girl”

Appellant replied, “I don’t know because I can’t even

stop looking at a picture.” Evidence of Appellant

looking at images described by HD as child

pornography and commenting to HD upon his

willingness to commit similar acts upon children to

those demonstrated in the images is permitted under

Mil. R. Evid. 404(b)(2) to prove motive and intent.

Although motive is not an element of either contested

offense, motive evidence explains the emotional need

Appellant could have had which incited him to commit

the sexual and lewd acts upon his child, WD. Whitner,

51 M.J. at 461. Intent is an element of sexual abuse.

Intent evidence can explain Appellant’s state of mind

in the commission of the charged acts when the

uncharged acts are sufficiently similar. Hays, 62 M.J.

at 158. The images are sufficiently similar, as

evidenced by HD’s reaction to being shown images of

“child pornography,” and then in the same

conversation, asking her husband if he was sexually

aroused by looking at these images, and then asking

if he would ever touch a little girl.

The cartoon images admitted against Appellant as

proof of the contested offenses totaled 150. The trial

88a

judge reasoned they were admissible under Mil. R.

Evid. 404(b)(2) as evidence of motive and intent,

consistent with his previous ruling regarding HD’s

testimony. Appellant’s possession of a significant

number of images, involving adult men, and female

children, including some depicting acts similar to

those particularly charged, reasonably suggests an

emotional need for committing the charged offenses.

Whitner, 51 M.J. at 461 (citing Rhea, 33 M.J. at 422).

I have carefully considered whether the evidence

admitted under Mil. R. Evid. 404(b) constitutes

impermissible spillover. Kerr, 51 M.J. 401. As already

discussed supra, the Mil. R. Evid. 404(b) evidence was

properly admitted. The trial judge crafted appropriate

and narrow limiting instructions and provided them

to the members at every logical and relevant stage of

the proceedings. The findings do not reflect

impermissible crossover. The child witness, WD,

testified live at trial. Her mother, HD, and

grandfather testified to her outcry statements. A

forensic interviewer also testified at trial. Numerous

additional witnesses testified for the Government as

well as for the Defense. The findings reflect the

members found Appellant guilty of the contested

offenses beyond a reasonable doubt. Having

determined all three parts of the Kerr test are

satisfied, I do not find prejudicial spillover.

After reviewing the entire record and considering

whether the remaining findings of guilty, and the

sentence, as reassessed, are correct in law and fact,

and whether any error materially prejudicial to the

substantial rights of the Appellant occurred, I find no

error that materially prejudices a substantial right of

Appellant. Therefore, I would affirm the remaining

findings and sentence, as reassessed.

89a

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

________________________

UNITED STATES

Appellee

v.

Alexander L. DRISKILL, Airman

United States Air Force, Appellant

No.23-0066

Crim. App. No. 39889

Argued October 25, 2023—Decided March 4, 2024

Military Judges: Willie J. Babor (trial) and Dayle

P. Percle (remand)

For Appellant: Major Frederick J. Johnson (argued);

Major Kasey W. Hawkins (on brief); Mark C. Bruegger,

Esq.

For Appellee: Captain Jocelyn Q. Wright (argued);

Colonel Matthew D. Talcott, Lieutenant Colonel James

P. Ferrell, Lieutenant Colonel G. Matt Osborn, and

Mary Ellen Payne, Esq. (on brief).

90a

Judge MAGGS delivered the opinion of the Court, in

which Chief Judge OHLSON, Judge SPARKS, Judge

HARDY, and Judge JOHNSON joined.

_______________

Judge MAGGS delivered the opinion of the Court.

In this appeal, Appellant challenges the finding

that he is guilty of violating Article 134, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 934 (2012), by

possessing obscene cartoons. Appellant argues that

trying him for the alleged offense violated the

prohibitions against double jeopardy in the Fifth

Amendment and Article 44(a), UCMJ, 10 U.S.C. § 844

(2012), because another court-martial had previously

tried him for the same offense. Applying this Court’s

recent precedent in United States v. Rice, 80 M.J. 36

(C.A.A.F. 2020), we agree with Appellant and grant

appropriate relief.

I. Background

The applicable version of Article 134, UCMJ,

commonly known as the “General Article,” provides:

Though not specifically mentioned in

this chapter, all disorders and neglects to

the prejudice of good order and discipline in

the armed forces, all conduct of a nature to

bring discredit upon the armed forces, and

crimes and offenses not capital, of which

persons subject to this chapter may be

guilty, shall be taken cognizance of by a

general, special, or summary court-martial,

according to the nature and degree of the

offense, and shall be punished at the

discretion of that court.

91a

Article 134, UCMJ, 10 U.S.C. § 934 (2012).1

In a portion of the MCM applicable to this case, the

President parsed the language of Article 134, UCMJ,

and explained its meaning as follows:

Article 134 makes punishable acts in

three categories of offenses not

specifically covered in any other article of

the code. These are referred to as

“clauses 1, 2, and 3” of Article 134.

Clause 1 offenses involve disorders and

neglects to the prejudice of good order

and discipline in the armed forces.

Clause 2 offenses involve conduct of a

nature to bring discredit upon the armed

forces. Clause 3 offenses involve

noncapital crimes or offenses which

violate Federal law including law made

applicable

through

the

Federal

Assimilative Crimes Act.

MCM pt. IV, para. 60.c.(1). Although the

President’s explanations of the UCMJ are not binding

on this Court, United States v. Wilson, 76 M.J. 4, 6

(C.A.A.F. 2017), this Court followed an earlier, similar

version of this explanation in United States v.

Leonard, 64 M.J. 381, 382-83 (C.A.A.F. 2007)

(following MCM pt. IV, para. 60.c.(1) (2005 ed.)).

Appellant’s first court-martial took place in 2018.

He was charged with three specifications of violating

1 The version of Article 134, UCMJ, in the 2012 edition of the

U.S.C. is reprinted in Manual for Courts-Martial, United States

app. 2 (2016 ed.) (MCM). The parties agree that this version of

Article 134, UCMJ, governs this case. We do not address the

subsequent amendment to Article 134, UCMJ.

92a

Article 134, UCMJ. The third specification alleged

that Appellant violated clause 3 of Article 134, UCMJ,

by possessing obscene cartoons in violation of a federal

criminal statute, 18 U.S.C. § 1466A(b)(1). The

specification averred that:

[Appellant] did, at or near Italy, between

on or about 11 October 2016 and on or

about 27 March 2018, knowingly and

wrongfully possess obscene cartoons, to

wit: visual depictions of minors engaging

in sexually explicit conduct, and that

said visual depictions were transported

in foreign commerce by computer, in

violation of 18 U.S. Code Section

1466A(b)(1), an offense not capital.

Section 1466A(b)(1) addresses the possession of

obscene cartoons, stating:

Any person who, in a circumstance

described in subsection (d), knowingly

possesses a visual depiction of any kind,

including a drawing, cartoon, sculpture,

or painting, that—

(1)(A) depicts a minor engaging in

sexually explicit conduct; and

(B) is obscene

....

. . . shall be subject to [certain specified]

penalties.

Id. (emphasis added). One of the circumstances,

described in subsection (d), is that “any visual

depiction involved in the offense has been . . .

transported in interstate or foreign commerce by any

93a

means.” Id. § 1466A(d)(4). Another circumstance is

that “the offense is committed in the special maritime

and territorial jurisdiction of the United States or in

any territory or possession of the United States.” Id. §

1466A(d)(5).

Appellant pleaded not guilty to the charge and all

three of its specifications. After the close of evidence,

Appellant contended in his argument on findings that

there was not enough evidence to prove the third

specification. He stated that he could not have

violated § 1466A(b) while he was in Italy because §

1466A “is not a statute of extraterritorial application.”

Appellant, in an additional filing requested by the

military judge in regard to this issue, asked the

military judge to dismiss the specification with

prejudice “because jeopardy has attached.”2

The military judge dismissed the third

specification. She concluded that Congress had

intended for § 1466A “to apply only within the

jurisdictional limits of the United States.” On this

basis, she held that the court did not have jurisdiction

to try the third specification. The military judge,

however, did not agree with Appellant that the

specification should be dismissed with prejudice. The

military judge ruled: “The lack of extraterritoriality

within . . . § 1466A does not foreclose prosecution for

the offense alleged, it only forecloses prosecution

under the current charging scheme.”3

2 From the materials before us, it is unclear how trial defense

counsel’s closing argument challenging the jurisdictional

element became characterized as a motion to dismiss by the

military judge.

3 The military judge found Appellant not guilty of the two other

specifications in the charge sheet.

94a

Appellant’s second court-martial occurred in 2019.

Appellant was charged with one specification of

violating Article 134, UCMJ, and two specifications of

violating Article 120b, UCMJ, 10 U.S.C. § 920b (2012).

The specification under Article 134, UCMJ, was

similar to the obscene cartoons specification dismissed

at the first court-martial, but it alleged a violation of

clause 2 of Article 134, UCMJ, instead of clause 3. The

specification asserted that Appellant “did, at or near

Italy, between on or about 11 October 2016 and on or

about 27 March 2018, knowingly and wrongfully

possess obscene cartoons, such conduct being of a

nature to bring discredit upon the armed forces.”

Appellant moved to dismiss the specification under

Article 134, UCMJ, on grounds that trying him for

this offense would violate the double jeopardy

prohibitions in the Fifth Amendment of the United

States Constitution and Article 44(a), UCMJ, because

he had already been tried for the same offense at his

first court-martial. The military judge in the second

court-martial denied the motion, relying on the

statement by the military judge in the first courtmartial that dismissal of the specification was for lack

of jurisdiction and therefore did not foreclose alleging

the offense under a different charge. Appellant

thereupon petitioned the United States Air Force

Court of Criminal Appeals (AFCCA) for a writ of

mandamus, asking the AFCCA to set aside the

military judge’s denial of his motion to dismiss the

specification. The AFCCA denied the writ. In re

Driskill, Misc. Dkt. No. 2019-03, 2019 CCA LEXIS

281, at *3-4, 2019 WL 2896472, at *2 (A.F. Ct. Crim.

App. July 2, 2019) (unpublished) (order).

Following these rulings, Appellant pleaded guilty

to the specification under Article 134, UCMJ, subject

95a

to the understanding that the double jeopardy issue

he had raised was not waived. Appellant pleaded not

guilty to the additional specifications under Article

120b, UCMJ, but the court-martial found him guilty

of these offenses following a trial. The court-martial

sentenced Appellant to a dishonorable discharge,

confinement for forty years and nine months,

forfeiture of all pay and allowances, and reduction to

the grade of E-1. The convening authority did not

modify the findings or sentence.

On appeal, the AFCCA concluded that no violation

of the prohibitions against double jeopardy in the

Fifth Amendment and Article 44(a), UCMJ, had

occurred. United States v. Driskill, No. ACM 39889 (f

rev), 2022 CCA LEXIS 496, at *42-43, 2022 WL

3589824, at *14 (A.F. Ct. Crim. App. Aug. 23, 2022)

(unpublished). The AFCCA reasoned that jeopardy

had not attached to the specification concerning

obscene cartoons at the first court-martial because

that specification “was dismissed for lack of

jurisdiction—grounds wholly unrelated to Appellant’s

guilt or innocence—and that the dismissal came

before Appellant was acquitted of the remaining

specifications.” Id. at *42, 2022 WL 3589824, at *14.

Rejecting Appellant’s other arguments, the AFCCA

affirmed the findings. Id. at *4-5, 2022 WL 3589824,

at *2. The AFCCA, however, reassessed the sentence,

reducing the period of confinement to thirty years. Id.

at *57, 2022 WL 3589824, at *20.

This Court granted review of the following issue:

In Appellant’s first court-martial, the

military judge dismissed the charge of

wrongful possession of obscene cartoons

after closing arguments. Did the

96a

Government’s reprosecution of Appellant

for the same offense violate the Fifth

Amendment

and

Article

44’s

prohibitions against double jeopardy?

United States v. Driskill, 83 M.J. 327 (C.A.A.F. 2023)

(order granting review). As discussed below, we

answer in the affirmative and grant appropriate

relief.

II. Standard of Review and Governing Law

The granted double jeopardy issue is a question of

law that we must answer de novo. United States v.

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

Three prohibitions against “double jeopardy” apply

to courts-martial. United States v. Rice, 80 M.J. 36, 40

n.8 (C.A.A.F. 2020). The Double Jeopardy Clause of

the Fifth Amendment provides: “No person shall be . .

. subject for the same offence to be twice put in

jeopardy of life or limb.” U.S. Const. amend. V.

Similarly, Article 44(a), UCMJ, provides: “No person

may, without his consent, be tried a second time for

the same offense.” And Rule for CourtsMartial

(R.C.M.) 907(b)(2)(C) requires dismissal of a charge or

specification if “[t]he accused has previously been

tried by court-martial or federal civilian court for the

same offense.”

Applying these three prohibitions requires

multiple steps. One step is determining whether the

accused has been “twice put in jeopardy” or, stated

differently, “tried twice.” Answering this question is

sometimes complicated because not every courtmartial proceeding counts as a “trial” for purposes of

the Fifth Amendment, Article 44, UCMJ, and R.C.M.

907(b)(2)(C). Several rules address this issue. Most

relevant here is this Court’s holding in United States

97a

v. Easton that jeopardy attaches pursuant to Article

44(a), UCMJ, “when evidence is introduced” and that

“once jeopardy has attached, an accused may not be

retried for the same offense.”4 71 M.J. 168, 172

(C.A.A.F. 2012). R.C.M. 907(b)(2)(C)(i)(I) similarly

provides, in pertinent part, that a court-martial

proceeding is not considered a trial pursuant to the

double jeopardy doctrine unless “[i]n the case of a trial

by military judge alone, presentation of the evidence

on the general issue of guilt has begun.” Another

relevant rule is that jeopardy cannot attach if the

court-martial

lacks

jurisdiction.

R.C.M.

907(b)(2)(C)(iv) states: “No court-martial proceeding

which lacked jurisdiction to try the accused for the

offense is a trial in the sense of this rule.”

Another step in applying the prohibitions against

double jeopardy is determining whether the accused

is truly being tried twice “for the same offense.” When

specifications allege offenses under different statutory

provisions, this step requires courts to look closely at

the elements of each of the alleged offenses. In

Blockburger v. United States, 284 U.S. 299, 303-04

(1932), the Supreme Court considered whether a

single sale of morphine could violate separate sections

of a federal criminal statute that prohibited the sale

of narcotics and, thus, be considered separate

Following Easton, Article 44 was amended to specify that

jeopardy attaches differently depending on the forum. National

Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114328, § 5226, 130 Stat. 2000, 2910-11 (2016). In the case of a trial

by military judge alone, jeopardy attaches on the presentation of

evidence; in the case of a trial by member panel, jeopardy

attaches when the members have been impaneled. See Article

44(c)(1)(A)-(2)(A), UCMJ, 10 U.S.C. § 844(c)(1)(A)-(2)(A) (2018);

R.C.M. 907(b)(2)(C)(i)(I)-(II).

4

98a

offenses. One section of the statute prohibited the sale

of narcotics except in their original packaging. Id. at

303. Another section prohibited the sale of narcotics

absent a written order. Id. at 303-04. The Supreme

Court in Blockburger announced the following general

test for deciding whether two offenses are the same for

purposes of double jeopardy: “[W]here the same act or

transaction constitutes a violation of two distinct

statutory provisions, the test to be applied . . . is

whether each provision requires proof of a fact which

the other does not.” Id. at 304. Applying this test, the

Supreme Court held that the narcotic charges at issue

for the one sale were not for the same offense because

each of the two respective sections of the criminal

statute required proof of a fact that the other did not.

Id.

While the Blockburger test generally applies in

courtsmartial, this Court in Rice declined to follow

“the strict application of Blockburger in the context of

the intentionally capacious Article 134, UCMJ.” 80

M.J. at 42. The Court in Rice held instead that only

some “differences are valid ones when determining

what constitutes the same offense for purposes of a

double jeopardy analysis involving Article 134,

UCMJ.” Id. at 43. Because the two specifications

under comparison in this case both allege violations of

Article 134, UCMJ, a detailed review of Rice is

necessary to explain the applicable law.

In Rice, the United States first prosecuted the

accused in a federal district court. Id. at 38. One count

of the indictment alleged that the accused had

possessed child pornography in violation of 18 U.S.C.

§ 2252A. Id. at 38 & n.2. To establish a violation of

this civilian criminal statute, the government had to

prove that the child pornography at issue had been

99a

transported in interstate commerce or produced with

materials that had been transported in interstate

commerce. Id. at 38 n.2. The Court identified this

requirement as a “jurisdictional element” of § 2252A.

Id. at 40. A “jurisdictional element” is an element that

links a statute to one of the legislative powers of

Congress enumerated in the United States

Constitution, such as the power to regulate interstate

commerce in U.S Const. art. I, § 8, cl. 3. Torres v.

Lynch, 578 U.S. 452, 457 (2016).

The government subsequently tried the appellant

in Rice by court-martial. 80 M.J. at 38. Two

specifications of the charges against him in the courtmartial alleged that he had possessed child

pornography in violation of clause 2 of Article 134,

UCMJ. Id. The appellant argued that trying him by

court-martial for these two specifications would

contravene the prohibition against double jeopardy

because the government had already prosecuted him

in federal district court for the same offense. Id. at 39.

The government responded that per Blockburger, the

two specifications in the court-martial did not allege

the “same offence” for which he was tried in the

federal district court because the § 2252A offense

required proof of transportation in interstate

commerce, while the offense charged under clause 2 of

Article 134, UCMJ, required proof that the offense

was service discrediting. Id. at 40. This Court,

however, rejected the government’s argument because

it saw “no evidence that Congress intended Article

134, UCMJ, to serve as a vehicle for the military to

reprosecute Title 18 offenses tried in a federal civilian

court simply by removing a jurisdictional element and

charging it as a violation of clause 1 or 2.” Id. at 41.

Accordingly, this Court disregarded the jurisdictional

100a

element of the § 2252A offense for the purpose of

applying the Blockburger test and concluded that the

subsequent court-martial for the possession

specifications in Rice violated the Double Jeopardy

Clause. Id. at 44.

III. Discussion

Appellant argues in this appeal, as he argued

before the military judge and the AFCCA, that the

prohibitions against double jeopardy in the Fifth

Amendment and Article 44(a), UCMJ, bar his second

trial for the possession of obscene cartoons in violation

of Article 134, UCMJ. We agree with Appellant. Our

decision rests on two primary conclusions. The first

conclusion is that jeopardy attached in the first courtmartial because the Government introduced evidence

in the case and because the court-martial had

jurisdiction to try Appellant for the offense. The

second conclusion is that the specifications in the first

and second court-martial concerning obscene cartoons

were “for the same offense” under the analysis that

this Court used in Rice.

A. Attachment of Jeopardy in the First CourtMartial

Under R.C.M. 907(b)(2)(C)(i)(I) and this Court’s

decision in Easton, jeopardy attaches to an offense

when the Government introduces evidence on the

general issue of guilt. The parties do not dispute that

this happened in the first court-martial.5 The military

5 A complete record of trial was not prepared for the first court-

martial because Appellant was not found guilty of any offense.

But the military judge in the first court-martial issued a written

ruling, included in the record in the present case, which

101a

judge and the AFCCA, however, reasoned that

jeopardy did not attach in this case because the first

court-martial lacked jurisdiction to try Appellant for

the specification concerning obscene cartoons. We

agree with the general proposition that jeopardy

cannot attach if the court-martial lacks jurisdiction

because R.C.M. 907(b)(2)(C)(iv) provides that “[n]o

courtmartial proceeding which lacked jurisdiction to

try the accused for the offense is a trial in the sense of

[the rule against double jeopardy].” But we cannot

agree that the first court-martial lacked either

personal or subject matter jurisdiction.

The first court-martial had personal jurisdiction

over Appellant under Article 2(a)(1), UCMJ, 10 U.S.C.

§ 802(a)(1) (2012), because, according to a stipulation

of fact in the record, he was a member of a “regular

component of the armed forces.” The stipulation

specifies that Appellant was an active duty Airman

assigned to Aviano Air Base in Italy at the time of the

offense. Appellant further testified to his military

membership at his second trial when he confirmed

that he enlisted in 2016 for a term of six years and had

never been released from active duty.

The first court-martial also had subject matter

jurisdiction to determine whether Appellant had

violated Article 134, UCMJ. Article 134, UCMJ,

provides that it applies to “persons subject to this

chapter,” referring to Chapter 47 of Title 10 of the U.S.

Code, which contains the UCMJ. Thus, alleging that

the offense occurred in Italy did not deprive the courtmartial of jurisdiction over either Appellant or the

described evidence that the Government presented at the first

court-martial.

102a

offense under Article 134, UCMJ, because Article 5,

UCMJ, 10 U.S.C. § 805 (2012), provides that “[t]his

chapter applies in all places.”

The military judge reached a different conclusion,

reasoning that the court-martial lacked jurisdiction

over the offenses because § 1466A did not apply to

conduct outside of the “special maritime and

territorial jurisdiction of the United States or in any

territory or possession of the United States.” We

cannot agree because the question of whether the

court-martial had personal and subject matter

jurisdiction is distinct from the merits question of

whether the Government alleged and proved a fact

necessary to show a violation of § 1466A, namely, that

the alleged conduct occurred in a location to which the

statute applies.6

On this point, this Court’s decision in United

States v. Williams, 17 M.J. 207 (C.M.A. 1984), is

instructive. In Williams, the accused was found guilty

of violating clause 3 of Article 134, UCMJ, when he

kidnapped someone on Fort Hood in violation of a

federal statute, 18 U.S.C. § 1201(a)(2). Id. at 208-09.

On appeal, however, this Court held that the evidence

was legally insufficient to sustain the finding of guilt

because the government had not proved that the

offense occurred on a portion of Fort Hood that was

within the “ ‘special maritime and territorial

jurisdiction of the United States’ ” as § 1201(a)(2)

required. Id. at 215. The Court emphasized that “all

factual issues concerning guilt or innocence—

Appellant argues that § 1466A could apply in Italy if the

Government could prove that the offending conduct occurred at

an installation such as Aviano Air Base. This Court previously

entertained a similar argument with respect to another federal

6

103a

including any issue of territorial jurisdiction—must

be submitted to the members for determination.” Id.

The lesson of Williams is that the Government’s

failure to prove a statutory element of this kind

concerns the sufficiency of the evidence rather than

the jurisdiction of the court-martial.

In this case, confusion may have arisen about

whether the jurisdiction of the first court-martial

depended on the location of the offense because federal

statutory elements requiring that conduct occur in the

territory of the United States, or affect interstate or

foreign commerce, are typically called “jurisdictional

elements.” This phrase, however, is a term of art. The

phrase refers to elements that link a statute to a

constitutional power of Congress to legislate, not to

the jurisdiction of a court. As the United States Court

of Appeals for the Tenth Circuit explained in United

States v. Tony, 637 F.3d 1153, 1158-59 (10th Cir.

2011):

criminal statute that outlawed conduct only in the territory of

the United States. See United States v. Wilmot, 11 C.M.A 698,

702, 29 C.M.R. 514, 518 (1960) (recognizing that “the question of

whether Yokota Air Base Japan, an area located in a foreign

country, is territory under the control of the United States” is a

question subject to “proof of the facts”). Given our reasoning

about the subject matter jurisdiction of this Court, we need not

express an opinion on this issue in this case.

104a

[A] “jurisdictional element” . . . is “

‘jurisdictional’ only in the shorthand

sense that without that nexus, there

can be no federal crime.” The absence

of a required element “is not

jurisdictional in the sense that it

affects a court’s subject matter

jurisdiction,

i.e.,

a

court’s

constitutional or statutory power to

adjudicate a case.”

Id. (citations omitted).

Confusion may also have arisen because of

Appellant’s own arguments. Appellant incorrectly

asserted in the filing submitted to the military judge

that the court-martial lacked subject matter

jurisdiction because § 1466A does not apply outside of

the United States. While this argument may have

contributed to the military judge’s ruling, it is not

correct, and we do not believe that this incorrect

argument precluded Appellant from subsequently

making a double jeopardy argument in the second

court-martial. Appellant had no double jeopardy

argument to forfeit or waive until the second courtmartial began. And Appellant specifically preserved

his double jeopardy argument at his second courtmartial by raising it before entering his pleas. See

United States v. Collins, 41 M.J. 428, 429 (C.A.A.F.

1995) (holding that double jeopardy arguments are

waived if the appellant does not raise them before

entering a guilty plea).

The Government presents three arguments

against our conclusion that jeopardy attached in this

case. First, the Government contends that in the

context of courts-martial, extraterritoriality is indeed

105a

an issue of subject matter jurisdiction. The

Government asserts that Article 18, UCMJ, 10 U.S.C.

§ 818 (2012), limits the subject matter jurisdiction of

courts-martial to offenses “made punishable” under

the UCMJ. Thus, according to the Government, the

conduct alleged in the specification at issue in the first

courtmartial was not “punishable” under the UCMJ

because § 1466A cannot reach conduct in Italy. The

Government therefore argues that the military judge

correctly dismissed the specification for lack of subject

matter jurisdiction. We cannot accept this argument

because it implies that a court-martial’s subject

matter jurisdiction over an offense depends on

whether the Government can prove all of the elements

necessary to establish that the accused is guilty of the

offense. No precedent supports that view.7

Second, the Government argues that the military

judge’s dismissal of the specification in the first courtmartial was based on a legal judgment unrelated to

factual guilt or innocence. The Government explains

that the military judge was focused solely on a legal

question, not an evidentiary question, and thus, the

military judge never determined whether the

Government’s evidence was inadequate. Although the

military judge’s order to dismiss the third

specification in the first court-martial focused on the

lack of extraterritoriality, as the Government

accurately emphasized here, we disagree with the

military judge’s legal determination regarding

jurisdiction. The point in time at which jeopardy

previously stated that “[t]he

question of the extraterritorial application of federal

statutes has nothing to do with the jurisdiction of the

federal courts.” United States v. Martinelli, 62 M.J. 52,

56 n.4 (C.A.A.F. 2005).

7 Additionally, this Court has

106a

attaches is not when a military judge sitting as a

court-martial makes a ruling based on the sufficiency

of the evidence. Instead, as explained above, jeopardy

attaches when the government introduces evidence on

the general issue of guilt. Easton, 71 M.J. at 172;

R.C.M. 907(b)(2)(C)(i)(I).

Third, the Government argues that the dismissal

in the first court-martial was similar to a mistrial and

should be treated like one. The Government reasons

that “[i]f the military judge’s dismissal is akin to a

mistrial, [a] reprosecution is not barred because

Appellant brought the motion.” The Government

explains that if Appellant had successfully moved for

a mistrial at the first court-martial, then jeopardy

would have terminated, and the Government could try

him again for the same offenses. See Easton, 71 M.J.

at 172 (explaining that the prohibition against double

jeopardy does not “preclude subsequent proceedings,

inter alia, where there is ‘manifest necessity’ for

declaring a mistrial or otherwise discharging the jury”

(quoting United States v. Perez, 22 U.S. 579, 580

(1824))). We disagree because we see no precedent for

the analogy that the Government proposes.

B. Same Offense in First and Second CourtsMartial

Our second conclusion is that Appellant was tried

twice for the same offense in the first and second

courts-martial. In the first trial, as described above,

Appellant was charged with violating clause 3 of

Article 134, UCMJ, by possessing obscene cartoons in

violation of § 1466A. In the second court-martial, he

was charged with possessing the same obscene

cartoons in violation of clause 2 of Article 134, UCMJ.

It is true, and both parties agree, that a strict

107a

application of the Blockburger test, unaffected by this

Court’s decision in Rice, would indicate that these are

different offenses because each offense contains an

element that the other does not. Specifically, at the

first trial, the Government was required to prove that

the cartoons at issue had traveled in or affected

foreign commerce or that the offense occurred in the

special maritime and territorial jurisdiction of the

United States, but the Government did not have to

prove that the offense was service discrediting. At the

second trial, the Government had to prove that

possessing the cartoons was service discrediting but

did not have to prove that the cartoons had traveled

in or affected foreign commerce or that th

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