Petition for Writ of Certiorari — Cox v. United States, 138 S. Ct. 53 (2017) (No. 16-1017)
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~ Supreme Coun, US.
1] 6 _ 0) ] 4 FEB 21 200
_— ae OFFICE OF THE CLERK
IN THE
Supreme Court of the Anited States
LAITH G. COX, ET AL.,
Petitioners,
V.
UNITED STATES,
Respondent.
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Armed Forces
PETITION FOR A WRIT OF CERTIORARI
—— SS
BRIAN L. MIZER STEPHEN [. VLADECK
JOHNATHAN D. LEGG Counsel of Record
LAUREN-ANN L. SHURE 727 East Dean Keeton St.
Appellate Defense Counsel Austin, TX 78705
Air Force Legal Operations Agency (512) 475-9198
United States Air Force sviladeck@law.utexas.cdu
1500 West Perimeter Road
Suite 1100 CHRISTOPHER D. COLEMAN
Joint Base Andrews, MD 20762 Defense Appellate Division
Army Legal Services Agency
EUGENE R. FIDELL 9275 Gunston Road
127 Wall Street Fort Belvoir, VA 22060
New Haven, CT 06511
Counsel for Petitioners
F ebruary 21, 2017
QUESTIONS PRESENTED
Since shortly after the Civil War, federal law has
required express authorization from Congress before
active-duty military officers may hold a “civil office,”
including positions that require “an appointment by
the President by and with the advice and consent of
the Senate.” 10 U.S.C. § 973(b)(2)(A) Gi).
After President Obama nominated and the Senate
confirmed Lieutenant Colonel Paulette Vance Burton,
Colonel Larss G. Celtnieks, Colonel James Wilson
Herring, Jr., and Colonel Martin T. Mitchell as judges
of the Article I U.S. Court of Military Commission
Review (CMCR), all four continued to serve on either
the Army or Air Force Court of Criminal Appeals
(CCA). The U.S. Court of Appeals for the Armed
Forces (CAAF) rejected as moot Petitioners’
challenges to these judges’ continued service on the
CCAs, because the President had not signed the
judges’ CMCR commissions until after the CCAs had
decided the Petitioners’ cases on the merits.
The Questions Presented are:
1. Whether the Court of Appeals erred in holding
that Petitioners’ claims were moot.
2. Whether these judges’ service on the CMCR
disqualified them from continuing to serve on
the CCAs under 10 U.S.C. § 973(b)(2)(A)(@).
3. Whether the judges’ simultaneous service on
both the CMCR and the AFCCA violated the
Appointments Clause.
TABLE OF CONTENTS
I eeenetnicion
EE ili
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED ..................
I. These Cases Raise the Same
Questions as Those Presented in
ECE aE A ne
TEE ee I a aD ll
il
TABLE OF AUTHORITIES
Cases
Chafin v. Chafin,
a
Pashaian v. Eccelston Props., Ltd.,
se 4 Teese ras 9
United States v. Buford,
No. 16-689 (C.A.A.F. Feb. 13, 2017)
SII inchs thinbiedeencaiendudeninioniigmmesbeneimapeneitaneipanestas 8
United States v. Cox,
75 M.J. 457 (C.A.A.F. 2016) (mem.) ....................... 2
United States v. Craig,
75 M.J. 470 (C.A.A.F. 2016) (mem.) ....................4.. 2
United States v. Dalmazzi,
76 M.J. 1 (C.A.A.F. 2016) (per curiam) .......... 1,5,9
United States v. Jones,
ee es Be rccermeccctrsninncsesesenisunessornnes 4
United States v. Lewis,
No. 16-660 (C.A.A.F. Dec. 19, 2016)
adsense telco lander laicitliadieneianieaimmainannames 2
United States v. Miller,
75 M.J. 495 (C.A.A.F. 2016) (mem.) ....................2+- 2
United States v. Morchinek,
75 M.J. 463 (C.A.A.F. 2016) (mem.) .................02.06 2
United States v. O'Shaughnessy,
75 M.J. 493 (C.A.A.F. 2016) (mem.) ....................... 2
United States v. Ortiz,
No. 16-671 (C.A.A.F. Feb. 9, 2017)
Rane a ae ae ee ee ON 8
il
Statutes and Constitutional Provisions
fe ee 8 Dk En, a
Uniform Code of Military Justice
(UCMJ)
a 3
ee isites Sasa Rass om one REICH 5
a ae 7
a eel 8
ee 7
8 aCe
10 U.S.C. § STBM)2MA)GI) ........20...-2ccceecererserseevee Bp 1O
I a aaa iitancatmidiasipaetinnaiadnettl 2
Other Authorities
162 CONG. REc. $2600
een oe 5
Petition for a Writ of Certiorari,
Dalmazzi v. United States, No. 16-961
a EE IIL Ws CIEE i iactenicincadtinipatecdbenncests 1, 4, 9, 10
lv
PETITION FOR A WRIT OF CERTIORARI
This Petition raises the same questions as those
already presented in Dalmazzi v. United States, No.
16-961 (U.S. filed Feb. 1, 2017). Like the Petitioner in
Dalmazzi, each of the six Petitioners here is a
servicemember who
(1) was convicted by a court-martial;
(2) appealed their conviction to their service-branch
Court of Criminal Appeals (CCA);
(3) had their conviction affirmed (or reconsideration
denied) by a CCA panel that included at least one
military judge also serving at the time as an
“additional judge” of the U.S. Court of Military
Commission Review (CMCR);
(4) petitioned for review before the Court of Appeals
for the Armed Forces (CAAF), challenging the
legality of CMCR judges also sitting on the CCAs;
and
(5) had CAAF grant their petition for review.
In Dalmazzi, CAAF held that it could not reach the
merits of the dual-officeholding issue raised in these
cases because the President had not signed Judge
Mitchell’s commission to serve on the CMCR until
after the Air Force CCA had ruled in Dalmazzi’s case,
and so Dalmazzi’s claims were moot. See United States
v. Dalmazzi, 76 M.J. 1, 3 (C.A.A.F. 2016) (per curiam).
After that ruling, the Court of Appeals issued a one-
sentence order in each of the Petitioners’ cases, noting
that, “in light of Dalmazzi,” the grant of review in
their case should be vacated, and the petition for
review be denied. See Pet. App. lla, 14a, 5la, 54a,
67a, 78a.
Petitioners’ claims rise and fall with Dalmazzi.
Therefore, if this Court grants the petition in
Dalmazzi and vacates or reverses the decision below,
it should grant this Petition as well, vacate the
decisions below, and remand to the Court of Appeals
for further proceedings in light of this Court’s
disposition in Dalmazzi.
OPINIONS BELOW
The Court of Appeals’ orders in Petitioners’ cases
are not yet reported. They are reprinted in the
Appendix at Pet. App. lla, 14a, 5la, 54a, 67a, and
78a. The opinions of the U.S. Air Force and Army
Courts of Criminal Appeals in the Petitioners’ cases
are not reported. They are reprinted in the Appendix
at Pet. App. la, 12a, 15a, 52a, 55a, and 68a.
JURISDICTION
In each of Petitioners’ cases, the Court of Appeals
granted a petition for review. See United States v. Cox,
75 M.J. 457 (C.A.A.F. 2016) (mem.); United States v.
Morchinek, 75 M.J. 463 (C.A.A.F. 2016) (mem.);
United States v. Craig, 75 M.J. 470 (C.A.A.F. 2016)
(mem.); United States v. O'Shaughnessy, 75 M.J. 493
(C.A.A.F. 2016) (mem.); United States v. Miller, 75
M.J. 495 (C.A.A.F. 2016) (mem.); United States v.
Lewis, No. 16-660 (C.A.A.F. Dec. 19, 2016) (mem.). In
Lewis, Morchinek, and O’Shaughnessy, the Court of
Appeals issued a final judgment on December 27,
2016. In Cox, Craig, and Miller, the Court of Appeals
issued a final judgment on January 17, 2017. This
Court therefore has jurisdiction over all six cases
under 28 U.S.C. § 1259(3).!
1. Asin Dalmazzi, in each of the Petitioners’ cases, the Court
of Appeals’ decision vacated the grant of review and purported to
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Appointments Clause provides that the
President:
shall nominate, and by and with the
advice and consent of the Senate, shall
appoint ...all other officers of the
United States, whose appointments are
not herein otherwise provided for, and
which shall be established by law: but
the Congress may by law vest the
appointment of such inferior officers, as
they think proper, in the President
alone, in the courts of law, or in the heads
of departments.
U.S. Const. art. II, § 2, cl. 2.
As relevant here, the military dual-officeholding
statute provides that:
Except as otherwise authorized by law,
[active-duty military officers] may not
hold, or exercise the functions of, a civil
office in the Government of the United
States ... that requires an appointment
by the President by and with the advice
and consent of the Senate.
10 U.S.C. § 973(b)(2)(A) (ai).
deny the petition. Pet. App. 11a, 14a, 51a, 54a, 67a, 78a. But this
Court has appellate jurisdiction over all “[c]ases in which [CAAF]
granted a petition for review under section 867(a)(3) of title 10.”
The Court of Appeals’ grant of review in each of Petitioners’ cases
brings them within the plain meaning of that provision.
3
STATEMENT OF THE CASE
A. Legal Background
As in Dalmazzi, this Petition arises from the
continuing service of active-duty military officers as
judges on the Air Force and Army Courts of Criminal
Appeals (CCAs) after their confirmation as
“additional judges” on the U.S. Court of Military
Commission Review (CMCR) under 10 U.S.C.
§ 950f(b)(3). As the Petition in Dalmazzi explains at
some length, the appointment of such active-duty
military officers to the CMCR violates the dual-
officeholding ban Congress enacted shortly after the
Civil War. See Petition for a Writ of Certiorari at 2-8,
Dalmazzi v. United States, No. 16-961 (U.S. filed Feb.
1, 2017); see also 10 U.S.C. § 973(b)(2)(A)(ii).?
Because the conventional remedy for a violation of
§ 973(b) is the termination of the appointed officers’
military commissions nunc pro tunc, all CCA decisions
in which those officers participated subsequent to
their CMCR _ appointments—including the CCA
rulings in each of the Petitioners’ cases—are not just
voidable, but void, and cannot be salvaged by the de
facto officer doctrine. See Petition for a Writ of
Certiorari at 16 n.10, Dalmazzi, No. 16-961 (citing
United States v. Jones, 74 M.J. 95, 97 (C.A.A.F. 2015)).
B. Procedural History
Notwithstanding these concerns, the Court of
Appeals for the Armed Forces (CAAF) held in
2. Moreover, insofar as such dual appointments do not violate
§ 973(b)(2)(A)(ii), +~they raise substantial—and potentially
insurmountable—problems under the Appointments Clause and
Commander-in-Chief Clause of Article II. See Petition for a Writ
of Certiorari at 13—16, Dalmazzi, No. 16-961.
4
Dalmazzi that, because the President had not signed
Colonel Martin T. Mitchell’s CMCR commission until
after the Air Force CCA (including Judge Mitchell)
had ruled in Dalmazzi’s case, her challenge to Judge
Mitchell’s continuing service on the Air Force CCA
was moot. See Dalmazzi, 76 M.J. at 3. CAAF then
applied Dalmazzi to each of Petitioners’ cases,
vacating its prior grants of review and denying each
of their petitions. See Pet. App. lla, 14a, 5la, 54a,
67a, and 78a.
Petitioner Laith G. Cox is a Captain in the U.S.
Army who was convicted, contrary to his pleas, of a
number of serious offenses arising out of sexual
misconduct with a 14-year-old girl. He was sentenced
to dismissal from the Army and 40 years’ confinement.
Cox appealed to the Army CCA, a three-judge panel of
which generally affirmed his conviction and sentence
(with exceptions not here relevant) in a ruling issued
on April 29, 2016. See Pet. App. 1. The Army CCA
panel included Lieutenant Colonel Paulette Vance
Burton and Colonel James Wilson Herring, Jr., both
of whom had been confirmed by the Senate the
previous day (along with Army Colonel Larss G.
Celtnieks and Air Force Colonel Mitchell) as
“additional judges” of the CMCR under 10 U.S.C.
§ 950f(b)(3). See 162 CONG. REC. $2600 (daily ed., Apr.
28, 2016). As noted above, Cox subsequently
petitioned CAAF for review, which was granted—and
then, after and in light of Dalmazzi, vacated and
denied. See Pet. App. 11a.
Petitioner Courtney A. Craig is a Specialist in the
U.S. Army who was convicted, in accordance with his
pleas, of attempted indecent visual recording, in
violation of Article 80 of the Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 880. Craig was sentenced
5
to a reduction in grade, to 20 days’ confinement, and
to a bad-conduct discharge. On appeal, an Army CCA
panel that included both Judges Herring and Burton
affirmed the conviction and sentence in all respects.
See Pet. App. 12a. That decision was dated May 10,
2016, even though Judges Herring and Burton had
both been confirmed by the Senate on April 28 to serve
as “additional judges” on the CMCR. As noted above,
Craig subsequently petitioned CAAF for review,
which was granted—and then, after and in light of
Dalmazzi, vacated and denied. See Pet. App. 14a.
Petitioner Andre K. Lewis is a Staff Sergeant in
the U.S. Air Force who was convicted, contrary to his
pleas, based upon his culpability in two separate
sexual misconduct incidents approximately 18 months
apart. He was sentenced to a dishonorable discharge,
confinement for six years, a reduction in grade, and
forfeiture of all pay and allowances. He appealed his
conviction to the Air Force CCA, a three-judge panel
of which generally affirmed his conviction and
sentence (with exceptions not her relevant) on March
29, 2016. See Pet. App. 15a. Lewis subsequently
moved the Air Force CCA for reconsideration. After
his motion was assigned to a “special panel” that
included Judge Mitchell, the panel denied the motion
for reconsideration on May 17, 2016, even though
Mitchell had been confirmed by the Senate on April 28
to serve as an appointed judge of the CMCR. See Pet.
App. 46a. On May 30, 2016, Lewis moved the special
panel for reconsideration of its ruling on the ground
that Mitchell’s appointment to the CMCR had
disqualified him from continuing to serve on the Air
Force CCA. It does not appear that the Air Force CCA
ever ruled on Lewis’s second motion for
reconsideration. As noted above, Lewis subsequently
6
petitioned CAAF for review, which was granted—and
then, after and in light of Dalmazzi, vacated and
denied. See Pet. App. 51a.
Petitioner Ian T. Miller is a Specialist in the U.S.
Army who was convicted, contrary to his pleas, of two
specifications of sexual assault of a child in violation
of Article 120b of the UCMJ, 10 U.S.C. § 920b. He was
sentenced to a reduction in grade, 20 months’
confinement, and a _ bad-conduct discharge. He
appealed his conviction and sentence to the Army
CCA, a three-judge panel of which affirmed on May 6,
2016. See Pet. App. 52a. The Army CCA panel
included Judge Celtnieks, who had been confirmed as
an “additional judge” of the CMCR on April 28, 2016.
As noted above, Miller subsequently petitioned CAAF
for review, which was granted—and then, after and in
light of Dalmazzi, vacated and denied. See Pet. App.
54a.
Petitioner Joseph D. Morchinek is a Senior Airman
in the U.S. Air Force who was convicted, contrary to
his plea, of misbehavior before the enemy in violation
of Article 99 of the Uniform Code of Military Justice,
10 U.S.C. § 899, and who pled guilty to a minor drug
offense. He was sentenced to a bad-conduct discharge,
confinement for two months, forfeiture of $1,021 pay
per month for two months, a reduction in grade, and a
reprimand. He appealed his Article 99 conviction to
the Air Force CCA, a three-judge panel of which
affirmed the conviction and sentence in all respects on
May 9, 2016. See Pet. App. 55a. The Air Force CCA
panel included Judge Mitchell—who had been
confirmed as an additional judge of the CMCR on
April 28, 2016. As noted above, Morchinek
subsequently petitioned CAAF for review, which was
granted—and then, after and in light of Dalmazzi,
vacated and denied. See Pet. App. 67a.
Petitioner Kelvin I.L. O'Shaughnessy is an Airman
First Class in the U.S. Air Force who was convicted,
contrary to his pleas, of ome charge and one
specification each of sexual assault and abusive
sexual contact, in violation of Article 120 of the UCMJ,
10 U.S.C. § 920. He was sentenced to a bad-conduct
discharge, confinement for 60 days, forfeiture of all
pay and allowances, and a reduction in grade. He
appealed to the Air Force CCA, a three-judge panel of
which affirmed the convictions and sentence in all
respects on May 5, 2016. See Pet. App. 68a. The Air
Force CCA panel included Judge Mitchell—who had
been confirmed as an additional judge of the CMCR on
April 28. As_ noted above, O’Shaughnessy
subsequently petitioned CAAF for review, which was
granted—and then, after and in light of Dalmazzi,
vacated and denied. See Pet. App. 78a.
REASONS FOR GRANTING THE PETITION
I. These Cases Raise the Same Questions as
Those Presented in Dalmazzi
In addition to the substantive dual-officeholding
questions presented in Dalmazzi and here (and over
100 additional cases now pending in the Court of
Appeals), the Petitioners’ cases raise the same
3. Ina terse order issued on February 9, 2017, the Court of
Appeals affirmed an Air Force CCA decision in a case raising the
same dual-officeholding questions, noting that “[t]he opinion of
the Court will be issued on a future date.” United States v. Ortiz,
No. 16-671, at 1 (C.A.A.F. Feb. 9, 2017) (mem.), reprinted at Pet.
App. 79a; see also United States v. Buford, No. 16-689, at 1
(C.A.A.F. Feb. 13, 2017) (mem.) (“[T]he granted assigned issues
are without merit in view of our holding in United States v.
Ortiz... .”), reprinted at Pet. App. 80a. If CAAF has indeed
8
“mootness” question as that raised by the Petition in
Dalmazzi. See Petition for a Writ of Certiorari at 10—
12, Dalmazzi, No. 16-961.
In Dalmazzi, the Court of Appeals held that a dual-
officeholding challenge to the continuing CCA service
by an “appointed judge” of the CMCR was “moot”
because the President had not yet signed the
challenged judge’s CMCR commission at the time the
relevant CCA decision was handed down. See
Dalmazzi, 76 M.J. at 3. As the Petition in Dalmazzi
explained, though, this analysis was “based upon a
factually and legally indefensible application of the
wrong doctrine.” Petition for a Writ of Certiorari at 10,
Dalmazzi, No. 16-961.
“As long as the parties have a_ concrete
interest . . . in the outcome of the litigation, the case is
not moot.” Chafin v. Chafin, 133 S. Ct. 1017, 1023
(2013) (internal quotation marks omitted).
Petitioners, whose sentences include substantial
punishment, unquestionably have such an interest in
pursuing the disqualification of judges from the CCA
panels that upheld their convictions and sentences.
Their appeals are emphatically not moot.
In our view, the Court of Appeals’ concerns more
properly sound in standing to challenge these judges’
dual participation, i.e., whether the Petitioners could
claim a concrete injury arising from their service on
the CMCR. See, e.g., Pashaian v. Eccelston Props.,
Ltd., 88 F.3d 77, 83 (2d Cir. 1996) (discussing standing
to seek a judge’s disqualification). But even viewed
through the proper doctrinal lens, the Court of
rejected these claims on the merits, that only bolsters the case
for this Court’s intervention both in Dalmazzi and here. See
Petition for a Writ of Certiorari at 13-17, Dalmazzi, No. 16-961.
9
Appeals’ analysis in Dalmazzi failed to account for the
plain text of the dual-officeholding ban, which applies
to military officers who “hold” or “exercise the
functions” of a civil office. See 10 U.S.C.
§ 973(b)(2)(A) Gi).
Whether or not Judges Burton, Celtnieks, Herring,
or Mitchell formally “held” the position of “additional
judge” of the CMCR before President Obama signed
their commissions, there is no question that they
“exercise[d] the functions” of that position at the same
time that they sat on Petitioners’ CCA panels—by
taking the oath of office as CMCR judges; by
participating in orders in pending CMCR cases; and
by handing down decisions in pending CMCR cases.
See Petition for a Writ of Certiorari at 11-12,
Dalmazzi, No. 16-961.
* * a”
Thus, if this Court grants the petition in Dalmazzi
and reverses or vacates the Court of Appeals’
“mootness” analysis, it should also vacate CAAF’s
orders in the Petitioners’ cases—and return these
cases to CAAF for further proceedings in light of
Dalmazzi.
10
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
STEPHEN I, VLADECK
Counsel of Record
727 East Dean Keeton St.
Austin TX 78705
(512) 475-9198
svindeck@law.utexas.ecdu
BRIAN L. MIZER
JOHNATHAN D. LEGG
LAUREN-ANN L. SHURE
Appellate Defense Counsel
Air Force Legal Operations Agency
United States Air Force
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD 20762
CHRISTOPHER D. COLEMAN
Defense Appellate Division
Army Legal Services Agency
9275 Gunston Road
Fort Belvoir, VA 22060
EUGENE R. FIDELL
127 Wall Street
New Haven, CT 06511
February 21, 2017 Counsel for Petitioners
ll
No, 16-
=
IN THE
Supreme Court of the Gnited States
—»
LAITH G. COX, ET AL.,
Petitioners,
Vv.
UNITED STATES,
Respondent.
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Armed Forces
APPENDIX TO THE PETITION
BRIAN L. MIZER STEPHEN I. VLADECK
JOHNATHAN D. LEGG Counsel of Record
LAU REN-ANN L. SHURE 727 East Dean Keeton St.
Appellate Defense Counsel Austin, TX 78705
Air Force Legal Operations Agency (512) 475-9198
United States Air Force stladeck law wihoxasved§a
1500 West Perimeter Road
Suite 1100 CHRISTOPHER D. COLEMAN
Joint Base Andrews, MD 20762 Defense Appellate Division
Army Legal Services Agency
EUGENE R. FIDELL 9275 Gunston Road
127 Wall Street Fort Belvoir, VA 22060
New Haven, CT 06511
Counsel for Petitioners
TABLE OF CONTENTS
United States v. Cox,
Army Ct. Crim. App.
Ee alee ne Saleen ee la
United States v. Cox,
U.S. Court of Appeals
for the Armed Forces
a a a al lla
United States v. Craig,
Army Ct. Crim. App.
Te:
United States v. Craig,
U.S. Court of Appeals
for the Armed Forces
gS ce ee Bee l4a
United States v. Lewis,
A.F. Ct. Crim. App.
REE ee Te RR RES Tle nee 15a
United States v. Lewis,
A.F. Ct. Crim. App.
ESE Ee ane one rer Caen 46a
United States v. Lewis,
U.S. Court of Appeals
for the Armed Forces
a 5la
United States v. Miller,
Army Ct. Crim. App.
es Se cis ticciiscicisnincnrnincntminernuntitinionmeen
United States v. Miller,
U.S. Court of Appeals
for the Armed Forces
Ee oe ne
United States v. Morchinek,
A.F. Ct. Crim. App.
ae EE oe
United States v. Morchinek,
U.S. Court of Appeals
for the Armed Forces
Se es A icieiietnetetncecenninasetesicesiniievenneann
United States v. O'Shaughnessy,
A.F. Ct. Crim. App.
dice
United States v. O'Shaughnessy,
U.S. Court of Appeals
for the Armed Forces
Gk ee
United States v. Ortiz,
U.S. Court of Appeals
for the Armed Forces
I
eee er eer wre ewe
United States v. Buford,
U.S. Court of Appeals
for the Armed Forces
eG hacedieliiditeictnccieincidndindadintiusniactieniniscansil
(ilia)
UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Captain LAITH G. COX
United States Army, Appellant
ARMY 20130923
Headquarters, U.S. Army Maneuver Support Center
of Excellence
Jeffrey R. Nance and Gregory A. Gross, Military
Judges
Colonel Robert F. Resnick, Staff Judge Advocate
For Appellant: Captain Jennifer K. Beerman, JA;
Mr. Frank J. Spinner, Esquire (on brief); Captain
Jennifer K. Beerman, JA; Mr. Frank J. Spinner, Es-
quire (on reply brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major
John K. Choike, JA (on brief).
29 April 2016
MEMORANDUM OPINION
(la)
This opinion is issued as an unpublished opinion
and, as such, does not serve as precedent.
BURTON, Judge:
An officer panel of sitting as a general court-
martial convicted appellant, contrary to his pleas, of
three specifications of aggravated sexual assault of a
child, two specifications of indecent liberties with a
child, three specifications of sodomy with a child who
had attained the age of 12 years but was under age of
sixteen years, one specification of conduct unbecoming
an officer, three specifications of indecent language to
a child, one specification of producing child pornogra-
phy, one specification of viewing child pornography,
and one specification of obstructing justice, in viola-
tion of Articles 120, 125, 133 and 134, Uniform Code
of Military Justice, 10 U.S.C. §§ 920, 925, 933, 934
(2006 & Supp. IV 2011) [hereinafter UCMJ]. The
panel sentenced appellant to a dismissal and confine-
ment for forty years. The convening authority ap-
proved the findings and sentence as adjudged and
credited appellant with nineteen days against the sen-
tence to confinement.
Appellant's case is before this court for review
under Article 66, UCMJ. Appellate defense counsel
raises four errors, one of which merits discussion and
(2a)
partial relief.1 After review of the entire record, we
find no evidence to support various specifications of
Charge III as being prejudicial to good order and dis-
cipline in the armed forces. We will provide relief in
our decretal paragraph.
FACTS
Appellant, a thirty-two year old, married man,
met Miss DS, a fourteen year old giri,? on an adult-
oriented website.? On that website, DS represented
herself as a nineteen year old woman.* Appellant con-
tacted DS through the website. They spoke several
——_-— --
| We have also reviewed those matters person-
ally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are
without merit.
2 DS testified she was born on 25 September
1996. Thus at the time of the incident on 11 Septem-
ber 2011, she was fourteen years old.
3 The adult-oriented website is for people who
would like to indulge in their sexual fantasies, and a
relationship site for people who want a fling, casual
dating, or sexual encounter with men, women, trans-
sexuals, and/or couples.
4The website does not allow guests under the
age of eighteen to register for the website. At the
time of trial DS was seventeen years old.
(3a)
times on the phone and communicated through elec-
tronic media to include text messages and email. On
11 September 2011, appellant set up a time to meet
DS in Norman, Oklahoma. On their first meeting ap-
pellant met DS in a parking lot across the street from
where she lived with her mother and younger sisters.
They engaged in sexual intercourse in appellant's ve-
hicle and appellant took photos of DS in various stages
of undress. Later that night, appellant met DS in the
same parking lot. They drove to a motel where appel-
lant engaged in anal, oral and vaginal intercourse
with DS. Appellant took photographs and video-rec-
orded the sexual acts with DS.
On 1 October 2011, appellant visited DS again.
He picked her up in a parking lot near her home and
drove to a motel. While at the motel, they again en-
gaged in various sexual acts to include anal, oral and,
vaginal intercourse. Appellant once again took photo-
graphs and video-recorded these sexual acts.
Appellant and DS discussed her age on several
occasions. DS testified that before they met, she was
on the telephone with appellant while she was attend-
ing a “kid's party.” When appellant inquired as to why
she was at a “kid's party,” she told him she was four-
teen years old and he replied, “[i]t doesn't really mat-
ter. I already like you anyway.” According to DS she
never told him any other age other than fourteen with
the exception of what he saw posted on the adult-ori-
ented website. On the video taken on 11 September
2011, prior to any sexual acts occurring, appellant
(4a)
asked DS to state her name and her age, and DS re-
sponded with her name and “fourteen.” DS was aware
that appellant was in the Army because he told her.
Law enforcement located appellant by contacting a
military installation.
LAW AND ANALYSIS
In accordance with Article 66(c), UCMd, we re-
view issues of legal and factual sufficiency de novo.
United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). The test for legal sufficiency is
“whether, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a
reasonable doubt.” United States v. Turner, 25 M.J.
324 (C.M.A. 1987); see also Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Humphreys, 57
M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reason-
able inference from the evidence of record in favor of
the prosecution.” United States v. Barner, 56 M.J. 131,
134 (C.A.A.F. 2001). The test for factual sufficiency is
“whether, after weighing the evidence in the record of
trial and making allowances for not having personally
observed the witnesses, [we] are [ourselves] convinced
of the accused's guilt beyond a reasonable doubt.”
Turner, 25 M.J. at 325.
Appellant claims there is no evidence that the
conduct alleged in Specifications 1, 2, 4 and 5 of
(5a)
Charge III was prejudicial to good order and disci-
pline.5 We have no dispute that appellant engaged in
such conduct, as photographs and videos were admit-
ted at trial of appellant engaging in the conduct
as charged. Appellant informed DS that he was in the
military and civilian law enforcement officials con-
tacted a military installation to obtain information
about appellant's location. The evidence is more than
sufficient to support a finding appellant's conduct was
service discrediting.
However, our review of the record discloses no
evidence to show that appellant's misconduct had any
impact on the good order and discipline of his unit. We
find the evidence to be less than minimal and insuffi-
cient to sustain a finding of guilty as to that language.
CONCLUSION
Having completed our review and in considera-
tion of the entire record, we AFFIRM only so much of
the Specifications 1, 2, 4 and 5 of Charge ITI as finds:
Specification 1: In that [appellant], did,
while on board the SS OAK HILL and/or
5 Appellant alleges that the evidence is factu-
ally insufficient to sustain a conviction of the specifi-
cations alleged in Charges I and III and the Additional
Charge. We only address the sufficiency of Charge III
and its specifications as they pertain to prejudice to
good order and discipline.
(6a)
assigned to Key West Naval Air Station,®
on or about 10 December 2011, in writing
communicate to Ms. [DS], a child under
the age of 16 years, certain indecent lan-
guage, to wit:
“I would wear a mask, so all she
would know is that I was hella old,
and then just to make my point |
would pull out of you and nut on her
face. Then as it dripped down cuz
she couldn't wipe it cuz her hands
are tied, I'd just fuck you again,”
“I was getting worried I wouldn't
get to pound your sexy ass again,”
“I need my little sluts pussy like
now,”
“you still want me to rape you,”
“I wish I could come over there and
fuck you all over her bed,”
6 In Specification 1 and 2 of Charge III, appel-
lant was charged with “while on board the SS OAK
HILLIsic]; he was found guilty except the words “SS
OAK HILL” substituting therefore the words “SS
OAK HILL and/or assigned to Key West Naval Air
Station.” We note the proper designation of this vessel
is "USS Oak Hill.” We hold the incorrect designation
harmless in Specifications 1, 2, and 5 of Charge III.
(7a)
“I could really use some pussy right
now, its been fucking months,”
or words to that effect, and that such con-
duct was of a nature to bring discredit
upon the armed forces.
Specification 2: In that [appellant], did,
while on board the SS OAK HILL and/or
assigned to Key West Naval Air Station
on about 24 December 2011, in writing
communicate to Ms. [DS], a child under
the age of 16 years, certain indecent lan-
guage, to wit:
“remember what I said that one
time about fucking you in front of
her and then bustin my nut all over
her face,”
“how about you just bring her alone
and she can watch me fuck you and
then we will see what she is up for,”
“who is [KW]? Well I'd like to fuck
around with her”
“I just want her to watch me fuck
you and
suck on my dick a little and video
me cumming on her, you think she
would come and play, and I promise
(8a)
I won't fuck her, thats what I want
for Christmas,”
or words to that effect, and that such con-
duct was of a nature to bring discredit
upon the armed forces.
Specification 4: In that [appellant], did at
or near Norman, Oklahoma, between on
and about 11 September 2011 to on or
about 2 October 2011, knowingly and
wrongfully produce child pornography to
wit: a video of sexually explicit conduct
between the said [appellant] and Ms.
[DS], a child under the age of 16, and
that such conduct was of a nature to
bring discredit upon the armed forces.
Speciation 5: In that [appellant], did
while on board the SS OAK HILL, be-
tween 20 December 2011 to on or about
24 December 2011, knowingly and
wrongfully view child pornography, to
wit: a video of sexually explicit conduct
between the said [appellant] and Ms.
[DS], a child under the age of 16, and
that such conduct was of a nature to
bring discredit upon the armed forces.
The remaining findings of guilty are AF-
FIRMED. We are able to reassess the sentence on the
basis of the error noted and do so after conducting a
(9a)
thorough analysis of the totality of circumstances pre-
sented by appellant's case and in accordance with the
principles articulated by our superior court in United
States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013) and United States v. Sales, 22 M.J. 305 (C.M.A.
1986). The maximum sentence appellant could have
received included confinement in excess of 100 years.
We are confident that based on the entire record and
appellant's course of conduct, the panel would have
imposed a sentence of at least that which was ad-
judged, and accordingly we AFFIRM the sentence. We
find this reassessed sentence is not only purged of any
error but is also appropriate. All rights, privileges,
and property, of which appellant has been deprived by
virtue of that portion of the findings set aside by our
decision, are ordered restored.
Senior Judge MULLIGAN and Judge HER-
RING concur.
FOR THE COURT:
[SIGNATURE]
MALCOLM H. SQUIRES, JR.
Clerk of Court
(10a)
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States, USCA Dkt. No. 16-
Appellee 0635/AR
v. Crim.App. No. 20130923
Laith G. Cox,
Appellant ORDER
On further consideration of the granted issues,
75 M.J. 457 (C._A.A.F. 2016), the facts that the United
States Army Court of Criminal Appeals issued its
judgment in Appellant’s case on April 29, 2016, and
Appellate Military Judges Paulette V. Burton and
James W. Herring were appointed by the President to
the United States Court of Military Commission Re-
view on May 25, 2016, and in light of United States v.
Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016), it is, by
the Court, this 17th day of January 2017,
ORDERED:
That the order issued October 3, 2016, grant-
ing review is hereby vacated; and
‘vhat Appellant’s petition for grant of review is
hereby denied.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
(11a)
UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist COURTNEY A. CRAIG
United States Army, Appellant
ARMY 20150272
Headquarters, Fort Riley
Charles L. Pritchard, Jr., Military Judge
Lieutenant Colonel Timothy A. Furin, Staff
Judge Advocate
For Appellant: Major Christopher D. Coleman, JA (ar-
gued); Lieutenant Colonel Charles D. Lozano, JA;
Lieutenant Colonel Jonathan F. Potter, JA; Major
Christopher D. Coleman, JA (on brief).
For Appellee: Captain Christopher A. Clausen, JA (ar-
gued); Colonel Mark H. Sydenham, JA; Lieutenant
Colonel A.G. Courie, III, JA; Major Danie] D. Demer,
JA; Captain Christopher A. Clausen, JA (on brief).
10 May 2016
DECISION
(12a)
Per Curiam:
On consideration of the entire record, we hold
the findings of guilty and the sentence as approved by
the convening authority correct in law and fact. Ac-
cordingly, those findings of guilty and the sentence are
AFFIRMED.. [sic]
FOR THE COURT:
[SIGNATURE]
MALCOLM H. SQUIRES, JR
Clerk of Court
(13a)
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States, USCA Dkt. No. 16-
Appellee 0650/AR
v. Crim.App. No. 20150272
Courtney A. Craig,
Appellant ORDER
On further consideration of the granted issues,
75 M.J. 470 (C.A.A.F. 2016), the facts that the United
States Army Court of Criminal Appeals issued its
judgment in Appellant’s case on May 10, 2016, and
Appellate Military Judges Paulette V. Burton and
James W. Herring were appointed by the President to
the United States Court of Military Commission Re-
view on May 25, 2016, and in light of United States v.
Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016), it is, by
the Court, this 17th day of January 2017,
ORDERED:
That the order issued October 20, 2016, grant-
ing review is hereby vacated; and
That Appellant’s petition for grant of review is
hereby denied.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
(14a)
****CORRECTED COPY -
DESTROY ALL OTHERS****
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
UNITED STATES
Vv.
Staff Sergeant ANDRE K. LEWIS
United States Air Force
ACM 38671
29 March 2016
Sentence adjudged 21 April 2014 by GCM convened at
Misawa Air Base, Japan. Military Judge: Matthew
Stoffel (sitting alone).
Approved Sentence: Dishonorable discharge, confine-
ment for 6 years, forfeiture of all pay and allowances,
and reduction to E-1.
Appellate Counsel for Appellant: Major Thomas A.
Smith.
Appellate Counsel for the United States: Captain Ty-
ler B. Musselman and Gerald R. Bruce, Esquire.
Before
ALLRED, TELLER, and ZIMMERMAN
Appellate Military Judges
(15a)
OPINION OF THE COURT
is Opinion is iss an ublished opinio
and, as 8 e e er
CA of Practice and dure
TELLER, Senior Judge:
907,-920,--928,-934. Appellant was convicted, contrary
to his pleas, by a military judge sitting alone of mak-
ing false official statements, aggravated sexual as-
sault, aggravated sexual contact, abusive sexual con-
tact, and assault consummated by a battery, in viola-
tion of Articles 107, 120, and 128, 10 U.S.C. §§ 907,
920, and 928.
The court sentenced him to a dishonorable dis-
charge, confinement for 6 years, reduction to E-1, and
forfeiture of all pay and allowances. The sentence was
approved, as adjudged, on 1 September 2014.
The court sentenced him to a dishonorable dis-
charge, confinement for 6 years, reduction to E-1, and
forfeiture of all pay and allowances. The sentence was
approved, as adjudged, on 1 September 2014.
(16a)
Appellant argues that (1) his conviction for ag-
gravated sexual assault of one victim is factually in-
sufficient; (2) his convictions for abusive sexual con-
tact, aggravated sexual contact, and assault consum-
mated by a battery of a second victim (and the related
false official statement conviction) are legally and fac-
tually insufficient; (3) the remaining conviction for
false official statement is legally and factually insuffi-
cient; and (4) he was prejudiced by the re-assignment
of a paralegal who assisted in his defense to the
base legal office that prosecuted his case.! We find
some merit in Appellant’s factual sufficiency
argument con-cerning the aggravated sexual contact
conviction and modify the findings and reassess the
sentence as de-scribed below. We affirm the
remainder of the find-ings.
Background
Appellant was convicted of misconduct related
to two separate incidents approximately 18 months
apart. The first incident, which occurred in November
2011 as Appellant was preparing to leave Ramstein
Air Base (AB), Germany, involved sexual acts with
Staff Sergeant (SSgt) HP while she was substantially
incapacitated. The second, which occurred on or about
13 April 2013 at Misawa AB, Japan, involved several
| The third and fourth assignmenis of error are
raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
(17a)
charges related to unwanted sexual contact and
battery of SSgt YM.?
Germany Offenses
There was substantial testimony about the in-
teraction between Appellant and SSgt HP during the
evening prior to the sexual misconduct in Germany.
SSet HP was part of a group of Airmen celebrating her
birthday and a colleague’s impending departure. Ap-
pellant had recently returned from a deployment. Ap-
pellant had originally planned to go out with a friend
of his, SSgt MS, and a friend of SSgt MS, Mr. RZ. Prior
to going out, Appellant parked his car at Mr. RZ’s
home. In an apparent coincidence, Appellant and SSgt
HP ran into each other at a dance club off-base.
The evidence is compelling that SSgt HP be-
came severely intoxicated while at the club. SSgt HP
testified that she recalled dancing with Appellant for
a few songs then going to sit down with a group of
friends. After that, with the exception of two brief
memories, she has no recollection of events until she
woke up with Appellant at Mr. RZ’s home. The two
brief memories both involve sexual acts with Appel-
lant which will be discussed in more detail below.
While there was no independent evidence of the
circumstances surrounding Appellant’s and SSgt HP’s
2 Although Appellant was charged with sexual
and other misconduct related to a third victim in 2012,
he was acquitted of all of those charges.
(18a)
departure from the club, Appellant gave a description
of the events to agents from the Air Force Office of
Special Investigations (AFOSI). The written tran-
script of the interview and Appellant’s written state-
ment were admitted into evidence by the Government.
Appellant told AFOSI that he noticed bouncers pre-
paring to escort SSgt HP from the club because of her
obvious intoxication and he decided to take her out-
side to get a taxi. Appellant could not find a taxi will-
ing to take SSgt HP because of her state of drunken-
ness. At some point, SSgt HP also began to vomit,
complicating efforts to convince a taxi to take her
home. After his initial efforts to find a taxi for SSgt
HP failed, Appellant went back into the club to per-
suade someone from SSgt HP’s group of friends to take
responsibility for her. According to Appellant, none of
the friends he could find were amenable. Other wit-
nesses who had accompanied SSgt HP to the club tes-
tified that they saw Appellant during this time and he
did not ask them to help SSgt HP get home. Appellant
told AFOSI that he then decided to get his belongings
and get a taxi himself to take SSgt HP home. When
Appellant left the club, SSgt HP was no longer in the
parking lot, and a bouncer suggested he check the
“drunk tent,” a small shelter in the parking area to
keep intoxicated patrons from being injured. Appel-
lant found SSgt HP passed out in the drunk tent, and
after about 40 minutes, finally found a taxi willing to
take them. Appellant described the ride as “a bit of a
ways from the club and told agents that the taxi had
to stop once during the trip for SSgt HP to step out to
vomit. When they arrived at SSgt HP’s home, Appel-
lant did not just drop her off, but rather paid for the
(19a)
taxi and got out with SSgt HP. Shortly thereafter, Ap-
pellant discovered that SSgt HP did not have her keys.
Although SSgt HP easily got in the next day through
a partially barred door, she was unable to do so that
night and Appellant had no way of getting SSgt HP
into the house. Appellant took SSgt HP to the par-
tially open garage and set out a tarp for her to lie down
on while he tried to arrange for a ride to Mr. RZ’s
house.
There is scant evidence of what time Appellant
and SSgt HP had left the club. One witness estimated
that she arrived with SSgt HP at 0115, stayed for two
or three hours, and saw Appellant picking up his coat
as she was leaving the club. By her estimate, that
would have been approximately 0415. Appellant’s cell
phone showed a text from Appellant to SSgt MS at
0458, apologizing for leaving the club without him, but
making no mention of needing to be picked up from
SSet HP’s home. Appellant sent another text message
to SSgt MS at 0502 describing SSgt HP as “almost
dead.” Less than 10 minutes later, Appellant sent a
text to SSgt MS, asking him to send a taxi to SSgt
HP’s home to pick him up. His cell phone memory also
indicated several phone calls and texts from 0506 to
at least 0600 that are consistent with Appellant’s ac-
count of the time he spent in the garage of SSgt HP’s
home.
Appellant was eventually successful in getting
his friends to pick them up from SSgt HP’s house.
Around 0600, SSgt MS and Mr. RZ arrived at SSgt
HP’s home in a taxi to take Appellant and SSgt HP to
(20a)
Mr. RZ’s house. While Appellant’s friends testified
that SSgt HP was lucid when she arrived at the house,
the evidence of bias and lack of candor with law en-
forcement render that testimony unworthy of belief.
The primary evidence relating to the charged
sexual acts comes from Appellant, although SSgt HP
testified about two “flashes” of memory. According to
Appellant, SSgt HP lay down on the guest room futon,
and rather than joining her, he lay down on the floor.
After about 30 minutes, he asserts, she verbally in-
vited him to have sex with her, but he demurred. After
10 minutes, he decided to check on her, and she pulled
him onto the futon by his belt. According to Appellant,
despite her intoxication to the point of passing out
when they left the club, SSgt HP had recovered
enough to become the sexual aggressor. His version of
events describing himself as reluctantly acceding to
her sexual advances was unconvincing in light of the
evidence of her state of intoxication just hours earlier.
SSegt HP testified that she had only two brief recollec-
tions between sitting down at the club and waking up
the next morning late for work. The first memory
started with her being “face down” on a bed with a per-
son who she later identified as Appellant penetrating
her from behind. When asked to describe her position
more fully, she testified,
[SSgt HP:] Um, I was, yeah I was face
down. Um, I came from my face up, up
from the bed, him, to look behind me [the
witness waived her left hand up]. Um,
my, um, my legs were hanging over the
(21a)
edge of the bed. Um, my knees, well, my
knees were at the edge of the bed.
[Trial Counsel:] And where were your
stomach and chest with respect to the
bed?
[SSgt HP:] [!'m not 100% sure. I pushed
up and looked back.
[Trial Counsel:] Did you—how long do
you—how long was this piece of memory
that you have?
[SSgt HP:] Seconds.
SSgt HP’s next recollection was being in the shower
with Appellant, but she did not recall any sexual acts
during that brief memory.
The next morning, Appellant took SSgt HP to work,
where the allegations came to light. Appellant woke
SSet HP up at approximately 1100 because he knew
she was scheduled to work. He drove her to her house,
where she entered through the partially barred door
and changed into her uniform. Appellant then drove
her to work. After contacting some friends who were
at the club with her, she spoke to her supervisor. She
told him that she had become intoxicated, that she re-
membered Appellant penetrating her, and that she
had not wanted that to happen. The incident was in-
vestigated by AFOSI. During the investigation Appel-
lant made specific statements of fact about interac-
tions he had with SSgt HP’s friends at the club that,
(22a)
according to the testimony of these individuals, did
not occur. No action was taken against Appellant at
that time.
Japan Offenses
The evidence surrounding Appellant’s offenses
in Japan is more complete. Unlike the offenses in Ger-
many, this victim’s intoxication did not impair her
memory, and she testified fully about Appellant’s con-
duct.
Appellant arrived at Misawa AB, Japan, in
March 2013 and soon became friends with the victim,
SSgt YM. SSgt YM served as Appellant’s informal
sponsor when he first arrived, and they worked to-
gether on the same shift in one of the base dining fa-
cilities. Although SSgt YM was in a relationship with
Sergeant First Class (SFC) JJ, she and Appellant
were good friends and often socialized together.
On 12 April 2013, after a night of drinks and
dancing, Appellant and SSgt YM got a suite in on-base
lodging. Originally, SSgt YM planned to go out with
SFC JJ and perhaps some others to have some drinks.
Ultimately SFC JJ was unable to go out because of his
duties. Appellant agreed to go out with SSgt YM, but
no one else wanted to join them. The two went to a few
different bars, ending up at the on-base club, where
Appellant tried to teach SSgt YM salsa dancing. While
both Appellant and SSgt YM were drinking, neither
was substantially intoxicated. A base curfew policy re-
quired Airmen in the rank of SSgt or below to be either
on base or in their residence by midnight. It was not
(23a)
unusuai for non-commissioned officers subject to the
curfew who lived off base to get a room at the on-base
lodging facility so they could spend the night on base
after going to the club. SSgt YM agreed to get a two-
room suite at lodging, planning for her to spend the
night in the bedroom and for Appellant to sleep on the
sofa in the living room.
The evidence conflicts concerning what hap-
pened after the two arrived at lodging. SSgt YM testi-
fied as to her recollection of events, and Appellant
made statements about the events which were later
admitted into evidence. According to both accounts,
SSgt YM was disappointed and angry that SFC JJ did
not make it a priority to come out with her that night.
SSgt YM testified that as soon as they got in the
elevator, Appellant unexpectedly put his arms around
her from behind with a “pretty firm grip.” Although
she testified that she did not want him to place his
arms around her and was hoping he would let go, she
did not say anything to him. After they got in the
room, Appellant removed his arms and SSgt YM sat
down in an upholstered chair. Appellant pulled a table
next to SSgt YM and began to aggressively ask her if
she would have sex with him. SSgt YM testified that
she told him no. SSgt YM described how Appellant
would use his hand to turn her face back towards him
whenever she looked away. SSgt YM testified that he
then began to ask her just to kiss him; “(hje grabbed
my, he grabbed my head along my jaw and chin, and
he pulled my face towards his and told me to kiss him,
(24a)
and he pressed my face up against his.” She testified
about her perception of the force used by Appellant.
[Trial Counsel:] What level of force was
he using at that particular point?
[SSgt YM:}] Um, he was very aggressive.
If I were to try to get away, I wouldn’t
have been able to.
[Trial Counsel:} What makes you say
that you wouldn’t have been able to get
away from him?
[SSgt YM:] I remember the grip on my
face being very tight. And if I tried to
turn my head, he would turn it back to-
wards his.
[Trial Counsel:] Did he actually succeed
in kissing you while he was doing this?
[SSgt YM:] Yes, ma’am.
[Trial Counsel:] What was your reaction
when he was doing this to you?
[SSgt YM:] I was scared.
[Trial Counsel:] Can you go into more de-
tail about why you were scared?
[SSgt YM:}] Um, I was in shock that it
was happening, and I didn’t know what
to do right at that moment. I was afraid
(25a)
that if I tried to get away, that something
was going to happen to me.
[Trial Counsel:] When you say something
was going to happen to you, what you
mean by that?
[SSgt YM:] Um, with the way he was be-
ing aggressive, I didn’t know what else
could happen. Not necessarily that he
was going to try to hit me, but I didn’t
know what was going to happen.
[Trial Counsel:] Did you kiss him back at
any point?
[SSgt YM:] Yes, ma’am. I did.
[Trial Counsel:] And why did you kiss
him back?
[SSgt YM:] I thought that if I kissed him
back, he would leave me alone.
SSgt YM testified that during this time Appel-
lant also touched her breasts. She testified that while
Appellant was kissing her, and she continued to pro-
test, Appellant placed his hands down the front of her
shirt and touched her breasts, although she could not
recall whether it was directly or through her clothing.
[Trial Counsel:} When he put his hands
down your shirt, what exactly did he
touch?
(26a)
[SSgt YM:] He touched my breasts.
[Trial Counsel:] Did he touch your
breasts through—did he actually touch
the skin of your breasts, or was he just
touching some article of clothing?
[SSgt YM:] I don’t remember.
[Trial Counsel:] Could you feel his hands
actually touching your breasts?
[SSgt YM:] I remember feeling them
touch the top of my chest, but I don’t re-
member if they touched my actual—the
lower part of my breasts.
[Trial Counsel:] Is it fair to say he was
touching the upper parts of your breasts?
[SSgt YM:]: Yes, ma’am.
She described the level of force used to touch
her breasts as “maybe a three or four” on a scale of one
to ten. She successfully pushed his hands away. She
also testified that Appellant removed his shirt and
“grabbed [her] hands and put them on his chest, and
he also made [her] kiss his chest.” She described the
level of force he used as a seven out of ten, and stated
that she was unable to pull her hands away. SSgt YM
testified that after he tried unsuccessfully to get her
(27a)
to kiss him, Appellant asked if he should get a sepa-
rate room. When she replied that he should, Appellant
left.
After Appellant left the room, SSgt YM ex-
changed a series of calls and instant messages with
SFC JJ. SSgt YM asked him to come to the room, but
SFC JJ initially declined. In one message, she told
SFC JJ, “I OBVIOUSLY NEED U [sic] HERE.” She
explained the lack of any specific reference to Appel-
lant’s conduct as an attempt to avoid making SFC JJ
upset before he arrived, but said she wanted him there
because she “was afraid” Appellant would come back.
The military judge later clarified with her that her
fear was not for her physical safety, but instead that
Appellant “could have been more aggressive with try-
ing to get [her] to have sex with him or kiss him.”
Appellant did in fact return to SSgt YM’s room
about 20 minutes after he left. He knocked on the
door, and SSgt YM, feeling “pretty sure” that it was
Appellant, opened the door. SSgt YM testified that
over the next three to four minutes Appellant resumed
his entreaties to have a relationship with him, again
using a force of about seven to bring her lips to his and
bring her hands to his chest. She also recounted how
he “in the same manner as before” placed his hands
down her shirt. She described this interaction as oc-
curring with her seated on the couch and Appellant
kneeling in front of her. She further testified that af-
ter getting up to leave, Appellant again tried to pull
her towards him to kiss him, and as she was trying to
pull away, her arm came free and she hit herself in
(28a)
the mouth with her phone. Specifically, she said that
he placed a hand around each of her wrists and tried
to pull her towards him using a force of nine out of ten.
She testified:
[Trial Counsel:] And so did he have one
hand around each wrist?
[SSgt YM:] Yes, ma’am.
[Trial Counsel:] Were you holding any-
thing in either of your hands?
[SSgt YM:] Yes, ma’am. I had my phone
in my right hand.
[Trial Counsel:] And so can you describe
how hard you were pulling away—trying
to pull away from him?
[SSgt YM:] It—I would have to put a lot
of force behind it.
[Trial Counsel:| How long would you say
that he was holding her [sic] hands in
that particular position?
[SSgt YM:] Just a few seconds.
[Trial Counsel:] How long did you have
to pull away before you were successful?
[SSgt YM:] I'd say maybe 2 to 3 seconds.
(29a)
[Trial Counsel:] Was it something—were
you able to pull away right away or did it
take some more effort?
[SSgt YM:] It took a little bit of effort.
(Trial Counsel:] What happened when—
after you were successful in pulling
away?
[SSgt YM:] I hit myself in the mouth with
my phone, and once I realized I was
bleeding, I went into the bathroom.
The military judge later followed up to attempt
to clarify the degree of force used.
[Military Judge:| There were several
times where trial counsel asked you how
much force it was that Sergeant Lewis
applied to you and you described it on a
scale of 1 to 10. Can you tell me what one
means and what 10 means?
[SSgt YM:] One would be if I could easily
just roughly take my hands away. Ten is
there is no way I could remove myself or
no way I could remove myself from his
grip.
{Military Judge:] So you had described
that when he had his hands on your
wrists trying to pull you towards him,
(30a)
you described that as about a force of a
nine?
[SSgt YM:] Yes; sir.
[Military Judge:] So were you able to pull
your hands away or did he let your hands
go?
[SSgt YM:] I think it was probably a com-
bination of the two. I remember still—I
remember having to put a lot of force be-
hind pulling my hands away, but I think
he may have let me go at the same time.
[Military Judge:] So if I understand it
you had to use a lot of force to pull away,
but you think that at some point when he
realized you were—really did not want
his hands on your wrists that he then let
go?
[SSgt YM:] Yes, sir.
[Military Judge:] And is that when your
hands came back toward your face?
[SSgt YM:] Yes, sir.
On cross-examination, SSgt YM agreed that
she never contended that Appellant intended for the
phone to hit her mouth, and agreed the contact was
accidental. SSgt YM testified that after she went to
the bathroom to check her injury, she and Appellant
(31a)
had a brief, heated conversation, and then Appellant
left the room. SFC JJ arrived shortly afterwards, and
after some discussion with SSgt YM, SFC JJ reported
the incident to security forces.
The investigation was referred to AFOSI, who
initiated a pretext phone call from SSgt YM to Appel-
lant and then called Appellant in for an interview. In
both the interview and the pretext phone call, Appel-
lant contended that there was no contact beyond mu-
tual kissing. He asserted that once they were in the
room, the space between them “closed up” and they
kissed. He told the agents that his hands were on SSgt
YM’s hips while they kissed. He told the agents that
they first kissed near the door, then had a conversa-
tion about relationships as they sat down in the living
area. He said SSgt YM got emotional talking about
SFC JJ and they hugged, which led to another kiss.
He stated after the kiss SSgt YM felt guilty, and he
brought up again that he should get his own room.
When asked if SSgt YM displayed any physical re-
sistance, Appellant said after the second kiss they just
stopped and that “there was no tug-of-war at all.” Ap-
pellant did volunteer that he returned to SSgt YM’s
room after getting his own, but at first stated that
they just talked during his second visit to the room.
As the interview progressed, Appellant’s account of
the second visit changed, and Appellant told AFOSI
that they kissed during the second visit as well. When
asked if anything else happened during that visit, he
told the agents that SSgt YM slipped off the arm of the
chair where he was sitting and hit her mouth on his
shoulder. The photos of the injury to SSgt YM’s mouth
(32a)
admitted into evidence clearly show an injury to SSgt
YM’s gums above her teeth. During the pretext phone
call, Appellant asked SSgt YM repeatedly not to tell
anyone about the night’s events.
Factual Sufficiency—Aggravated Sexual Assault
Appellant first argues that the evidence of ag-
gravated sexual assault of SSgt HP was factually in-
sufficient to sustain his conviction. We review issues
of factual sufficiency de novo. United States v. Beatty,
64 M.J. 456, 459 (C.A.A.F. 2007). The test for factual
sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not hav-
ing personally observed the witnesses, [we are] con-
vinced of the [appellant]’s guilt beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987), quoted in United States v. Reed, 54
M.J. 37, 41 (C.A.A.F. 2000). In conducting this unique
appellate role, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of inno-
cence nor a presumption of guilt” to “make [our] own
independent determination as to whether the evi-
dence constitutes proof of each required element be-
yond a reasonable doubt.” United States v. Washing-
ton, 57 M.J. 394, 399 (C.A.A.F. 2002). Our factual suf-
ficiency determination is limited to a review of the en-
tire record, meaning evidence presented at trial. Reed,
54 M.J. at 43; United States v. Bethea, 46 C.M.R. 223,
225 (C.M.A. 1973).
(33a)
We have reviewed the record of trial and evalu-
ated the arguments by Appellant and the Govern-
ment. We have weighed the entire record of trial and
have made allowances for not having heard and ob-
served the witnesses. Given the totality of the circum-
stances, and in light of all of the evidence in this case,
we are convinced beyond a reasonable doubt of Appel-
lant’s guilt of aggravated sexual assault of SSgt HP.
Factual and Legal Sufficiency—Offenses Relating to
SSgt YM
Appellant next asserts that the evidence is fac-
tually and legally insufficient to support the convic-
tions of the offenses relating to SSgt YM. Appellant
was convicted of four offenses related to SSgt YM.
First, he was convicted of making a false official state-
ment to AFOSI concerning the source of SSgt YM’s in-
jury to her mouth. Second, he was convicted of abusive
sexual contact3 for touching SSgt YM’s breast without
permission. Third, he was convicted of aggravated
sexual contact for causing SSgt YM to touch his chest
with her hands and lips by using unlawful force, spe-
cifically physical strength sufficient that she could not
avoid or escape the sexual contact. Finally, Appellant
was convicted of assault consummated by a battery for
unlawfully restraining her by her wrists. Appellant
contends that the evidence was legally insufficient as
to the abusive sexual contact offense because “there
was no evidence elicited at trial that Appellant
touched SSgt YM’s breast through her clothing.” He
also asserts that the evidence was factually insuffi-
cient with regard to the other offenses “because SSgt
(34a)
YM is not credible and had a motive to fabricate the
allegations against Appellant.” We apply the same
standard with regard to factual sufficiency as articu-
lated above. We review the legally sufficiency of the
evidence de novo. Beatty, 64 M.J. at 459.
“The test for legal sufficiency of the evidence is
‘whether, considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a
reasonable doubt.” United States v. Humpherys, 57
M.J. 83, 94 (C.A.A.F. 2002) (quoting Turner, 25 M.dJ.
at 324). The term reasonable doubt does not mean
that the evidence must be free from conflict. United
States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.1986).
“(I]n resolving questions of legal sufficiency, we are
bound to draw every reasonable inference from the ev-
idence of record in favor of the prosecution.” United
States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).
Our assessment of legal and factual sufficiency is lim-
ited to the evidence produced at trial. United States v.
Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
We find the evidence of abusive sexual contact
legally sufficient. Although SSgt YM did express un-
certainty about whether Appellant touched her di-
rectly or through some article of clothing, her testi-
mony was clear that Appellant touched her breast.
While her uncertainty raised an issue about whether
he touched all of her breast directly, or only some part
of it, it never contradicted her initial assertion that
Appellant touched her breast in some manner. View-
ing this testimony in the light most favorable to the
(35a)
prosecution, we conclude that a reasonable finder of
fact could have concluded beyond a reasonable doubt
that Appellant touched some part of SSgt YM’s breast
through her clothing. We ourselves, after making al-
lowances for not having seen the testimony, are also
convinced beyond a reasonable doubt of Appellant’s
guilt of abusive sexual contact.
We are similarly convinced of Appellant’s guilt
beyond a reasonable doubt of the offenses of false offi-
cial statement and assault consummated by a battery.
The injury depicted in the photographs admitted into
evidence is completely consistent with SSgt YM’s ac-
count of Appellant’s second visit to her room, and does
not support either of the versions Appellant provided
to AFOSI during his interview. SSgt YM testified that
Appellant grabbed her wrists with unlawful force, and
in the course of escaping from his grasp her cell phone
struck her mouth and caused the injury to her gums.
She also testified that she confronted Appellant, mak-
ing him aware of the injury. We find that evidence fac-
tually sufficient to sustain his convictions.
We are not convinced beyond a reasonable
doubt, however, of Appellant’s guilt of the charged of-
fense of aggravated sexual contact for causing SSgt
YM to touch his chest with her hands and lips by using
unlawful force. As alleged in Charge II, Specification
5, the Government was required to prove that Appel-
lant used sufficient strength that SSgt YM could not
avoid or escape touching Appellant’s chest with her
hands and lips. Several times during her testimony,
the prosecution asked SSgt YM to characterize the
(36a)
level of force used by Appellant. In describing the level
of force used to cause her to touch his chest, SSgt YM
characterized it as a seven on a scale of ten. She also
testified that she could not pull her hands away, but
we weigh that testimony in conjunction with her be-
havior that night, including her willingness to let Ap-
pellant back into her room after he had departed.
When the military judge later asked her how much
force Appellant used in grasping her wrists in the con-
text of the battery offense, she characterized the level
of force as nine out of ten, but testified that she was
able to pull away. In light of her conflicting testimony,
we are not convinced beyond a reasonable doubt that
Appellant did in fact use such strength that SSgt YM
could not have avoided or escaped the contact. Despite
determining the evidence was factually insufficient to
sustain the charged offense, we may nonetheless af-
firm so much of the finding that includes a lesser in-
cluded offense. Article 59(b), UCMJ, 10 U.S.C. §
859(b). We are convinced beyond a reasonable doubt
that Appellant caused SSgt YM to touch his chest with
her hands and lips without her consent, and accord-
ingly affirm the conviction to the lesser included of-
fense of abusive sexual contact.
Factual and Legal Sufficiency—
2011 False Official Statement
Appellant, pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), asserts that the
evidence was factually and legally insufficient to sus-
tain his conviction for the false official statement set
out in Charge I, Specification 2. Appellant specifically
(37a)
asserts that the evidence did not prove that he had the
intent to deceive in making the statement, and that
the evidence that the statement was false was unreli-
able. We apply the same standard for factual and legal
sufficiency as set out above.
The assertion at issue is Appellant’s statement
that “[he] ran into a coworker [, SSgt BH,] and [he]
asked [SSgt BH] to please help [him; SSgt BH] told
[Appellant] [SSgt HP] was grown],] going through a
divorce[,] just take her home” or words to that effect.
Appellant made this assertion both in his written
statement and his verbal statement to AFOSI. The
statement was made in the context of multiple asser-
tions to AFOSI that Appellant had no preconceived in-
tent to engage in sexual relations with SSgt HP, SSgt
HP initiated the sexual contact, and he reluctantly ac-
ceded to her advances.
First, we find that a reasonable fact finder
could have found beyond a reasonable doubt that no
such verbal exchange took place between Appellant
and the coworker, and we ourselves reach that conclu-
sion beyond a reasonable doubt. The coworker testi-
fied at trial and unequivocally stated that no such con-
versation took place. The coworker, who had no appar-
ent bias towards either party, recalled seeing Appel-
lant as he was leaving the club. He testified that, con-
trary to Appellant’s statement to AFOSI, Appellant
affirmatively took responsibility for taking SSgt HP
home. The coworker also recalled a brief exchange
about the fact that SSgt HP’s car was parked at the
coworker’s house, and that Appellant would make
sure that she got it the next day. In light of the level
(38a)
of detail of the coworker’s testimony and his lack of
bias, we find his testimony both legally and factually
sufficient to conclude that the verbal exchange as-
serted in Appellant’s statements did not occur.
Second, since we have no direct evidence of Ap-
pellant’s intent to deceive, we must determine
whether, in light of all the evidence, one could reason-
ably infer such intent from the surrounding circum-
stances. The charged statement was completely con-
sistent with Appellant’s other assertions that he only
reluctantly took SSgt HP home in the first place.
While his theme of being a reluctant partner may have
been of little relevance to the offense as ultimately
charged, our inquiry must focus on his intent at the
time of making the statement. Appellant’s verbal and
written statements contain numerous assertions that
SSgt HP initiated the sexual contact that night. In
light of his other statements, we are convinced beyond
a reasonable doubt that Appellant intended AFOSI to
believe that he tried to find an alternative to leaving
the club with SSgt HP to corroborate his other state-
ments that he did not initiate the sexual contact that
night. We also find the evidence sufficient to allow a
reasonable finder of fact to reach that conclusion be-
yond a reasonable doubt.
Viewing the evidence in the light most favora-
ble to the Government, we find a reasonable fact
finder could have found all the essential elements of
the offense beyond a reasonable doubt. Similarly, hav-
ing weighed the evidence in the record of trial, making
(39a)
allowances for not having personally observed the wit-
nesses, we ourselves are personally convinced of Ap-
pellant’s guilt beyond a reasonable doubt.
Reassignment of Defense Paralegal
Appellant's final assignment of error, also sub-
mitted pursuant to Grostefon, asserts that his sub-
stantial rights were prejudiced when SSgt TG, the de-
fense paralegal assigned to assist in his defense, was
reassigned to the base legal office that was prosecut-
ing him. In a declaration subject to penalty of perjury.
Appellant makes two specific claims: first, that
shortly after speaking with Appellant. SSgt TG “was
removed [from] his position at the [area defense coun-
sel’s office} and began working on the government|’|s
behalf’; and second, he “believe[d] information stem-
ming from [their] discussions [was] told to the Govern-
ment to bring about more false and [inaccurate]
charges.” Appellant alleges the sharing of privileged
information constituted prosecutorial misconduct and
that “the appearance of transferring SSgt [TG] to the
military justice section of the base legal office also
raises a legitimate question regarding the fairness of
Appellant’s trial.”
We review arguments of prosecutorial miscon-
duct raised for the first time on appeal for plain error.
See United States v. Akbar, 74 M.J. 364, 398 (C.A.A.F.
2015) (reviewing for plain error an allegation raised
for the first time on appeal that the government’s con-
trol over the defense counsels’ assignments consti-
(40a)
tuted prosecutorial misconduct and unlawful com-
mand influence). Appellant must show not only the
underlying facts alleged to constitute misconduct, but
also that it resulted in some “unfairness in the pro-
ceedings.” Id. at 399. In this case, Appellant makes
only the speculative claim that privileged material
was shared.? Appellant does not identify any infor-
mation that came out at trial that he believes was ob-
tained from privileged discussions. In fact, a plain
reading of the record indicates that all of the evidence
and the identity of witnesses related to the offenses of
which he was convicted were disclosed through the
course of a routine investigation. Both victims filed
complaints with law enforcement independently and
cooperated with the investigation. Appellant also
made statements to AFOSI. While we are cognizant of
the difficulty Appellant faces in proving the content of
conversations that may have occurred between SSgt
2 We find that a fact-finding hearing on this is-
sue pursuant to United States v. DuBay, 37 C.M.R.
411 (1967) is not necessary or appropriate. “[I|f [an]
affidavit does not set forth specific facts but consists
instead of speculative or conclusory observations, the
claim may be rejected on that basis.” United States v.
Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Since Appel-
lant did not specify any information he believed was
derived from privileged information, we find his claim
to be speculative and conclusory. Although this court
granted Appellee’s motion to attach affidavits from le-
gal office personnel pertaining to SSgt TG’s involve-
ment in the case, we did not consider them in reaching
this decision.
(41a)
TG and government personnel, we also recognize that
one purpose of the plain error rule is to encourage
such claims to be raised at trial so that the record can
be fully developed. We find that Appellant failed to
meet his burden to show any unfairness in the pro-
ceeding that resulted from SSgt TG’s reassignment,
and therefore find no plain error.
Sentence Reassessment
Because we have reduced Appellant’s degree of
guilt to one of the sexual contact offenses, we must de-
termine whether we can reassess the sentence, or
whether we must order a rehearing. This court has
“broad discretion” in deciding to reassess a sentence
to cure error and in arriving at the reassessed sen-
tence. United States v. Winckelmann, 73 M.J. 11, 12
(C.A.A.F. 2013). To reassess the sentence. we must be
able to reliably conclude that, in the absence of error.
the sentence “would have been at least of a certain
magnitude,” and the reassessed sentence must be “no
greater than that which would have been imposed if
the prejudicial error had not been committed.” United
States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). We
must be able to determine this to a “degree of cer-
tainty.” United States v. Eversole, 53 M.J. 132, 134
(C.A.A.F. 2000): see also United States v. Taylor, 51
M.J. 390, 391 (C.A.A.F. 1999) (holding we must be
able to reach this conclusion “with confidence”). “The
standard for reassessment is not what would be im-
posed at a rehearing but what would have been im-
posed at the original trial absent the error.” United
States v. Taylor, 47 M.J. 322. 325 (C.A.A.F. 1997); see
(42a)
also United States v. Davis, 48 M.J. 494, 495 (C.A.A.F.
1998) (holding no higher sentence than that which
would have been imposed by the trial forum may be
affirmed). A reassessed sentence “must be purged of
prejudicial error and also must be ‘appropriate’ for the
offense[s] involved” based on our sentence approval
obligation under Article 66(c), UCMJ, 10 U.S.C. §
866(c). Sales, 22 M.J. at 308.
In determining whether to reassess a sentence
or order a rehearing, we consider the totality of the
circumstances, including the following illustrative,
but not dispositive, factors: (1) dramatic changes in
the penalty landscape and exposure, (2) the forum, (3)
whether the remaining offenses capture the gravamen
of the criminal conduct included within the original
offenses, (4) whether significant or aggravating cir-
cumstances remain admissible and relevant, and (5)
whether the remaining offenses are the type with
which we as appellate judges have the experience and
familiarity to reliably determine what sentence would
have been imposed at trial by the sentencing author-
ity. Winckelmann, 73 M.J. at 15—16.
Our modification of the findings did not sub-
stantially change Appellant’s culpability in this case.
Appellant remains convicted of sexual assault against
a fellow Airman, two instances of abusive sexual con-
tact against a second Airman, two false statements to
investigators, and a battery that resulted in injury.
The sentencing landscape has not changed signifi-
cantly as a result of our decision, which generally
weighs in favor of our ability to reassess the sentence.
(43a)
See United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.
2003); Winckelman, 73 M.J. at 14. The remaining sex-
ual misconduct captures the gravamen of the offenses,
and the same conduct would have been before the mil-
itary judge in sentencing. The offenses are of the type
that we have experience and familiarity with as ap-
pellate judges, and the sentence was imposed by a mil-
itary judge rather than a panel. Considering the total-
ity of the circumstances of this case, including the fac-
tors enumerated in Winckelmann, we are confident we
can reassess the sentence.
Based on Appellant’s conviction for aggravated
sexual contact, as well as the offenses of which Appel-
lant remains guilty, the military judge sentenced Ap-
pellant to a dishonorable discharge, confinement for 6
years, forfeiture of all pay and allowances, and reduc-
tion to E-1. In light of the factors discussed above, we
conclude that we can reassess the sentence to the sen-
tence adjudged. We are convinced that the military
judge in this case imposed sentence based upon the
facts and circumstances of the offenses and not the le-
gal label associated with any one offense. We can con-
fidently and reliably determine that, absent the error,
the sentence adjudged by the military judge would
have been the same.
Conclusion
We find the conviction for aggravated sexual
contact alleged in Specification 5, Charge II, factually
insufficient and approve the finding of guilt only of the
lesser included offense of abusive sexual contact. We
(44a)
reassess the sentence to the sentence approved by the
convening authority. The findings, as modified, and
the sentence, as reassessed, are correct in law and
fact, and no error materially prejudicial to the sub-
stantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ. Accordingly, the findings, as modi-
fied, and the sentence, as reassessed, are AFFIRMED.
[SEAL] FOR THE COURT
[SIGNATURE]
LEAH M. CALAHAN
Clerk of the Court
(45a)
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
UNITED STATES, ) ACM 38671 (RECON)
Appellee
Vv.
ORDER
Staff Sergeant (E-5)
ANDRE K. LEWIS,
USAF,
Appellant ) Special Panel
i a a
It is by the Court on this 16th day of May, 2016,
ORDERED:
That the Record of Trial in the above styled
matter is withdrawn from Panel 2 and referred to a
Special Panel for appellate review, pursuant to United
States Air Force Court of Criminal Appeals Rule 19.2
(d).
The Special Panel in this matter shall be con-
stituted as follows:
ALLRED, MARK, L., Colonel,
Chief Appellate Military Judge
MITCHELL, \LARTIN, T., Colonel,
Senior Appellate Military Judge
ZIMMERMAN, LE, T., Colonel,
Appellate Military Judge
(46a)
[SEAL] FOR THE COURT
[SIGNATURE]
LAQUITTA J. SMITH
Appellate Paralegal Specialist
(47a)
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
UNITED STATES, ) ACM 38671 (RECON)
Appellee
Vv.
ORDER
ANDRE K. LEWIS,
USAF,
)
)
:
Staff Sergeant (E-5) )
)
)
Appellant )
Special Panel
Appellant was convicted, contrary to his pleas,
by a military judge sitting alone of making false offi-
cial statements, aggravated sexual assault, aggra-
vated sexual contact, abusive sexual contact, and as-
sault consummated by a battery. On 29 March 2016,
this Court issued our opinion, modifying the findings
in part and reassessing the sentence. In that opinion,
we incorrectly stated Appellant was convicted of adul-
tery, but then correctly stated in footnote 2 of the opin-
ion that Appellant was acquitted of that offense. At all
times relevant to our appellate review of Appellant's
case, the judges of this Court were cognizant of Appel-
lant’s acquittal on the charge of adultery.
On 9 May 2016, pursuant to Rule 19 of this
Court’s Rules of Practice and Procedure and United
(48a)
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
Appel-lant moved this court to reconsider our
decision.! In conjunction with the Motion for
Reconsideration, Appellant submitted a Motion to
File Appendix to Motion for Reconsideration under
Seal and a Motion to Attach Appellant’s declaration,
dated 24 April 2016. The Government opposed the
Motion for Reconsideration.
Accordingly, it is ORDERED this 17th day of
May, 2016:
1) Appellant’s Motion to Attach is GRANTED.
2) Appellant’s Motion to File Appendix to Mo-
tion for Reconsideration under Seal is GRANTED. Ap-
pellant’s declaration will be sealed and any copies in
the possession of appellate government counsel may
be retained solely for the purpose of fulfilling their ap-
pellate responsibilities and subsequently destroyed.
3) Appellant’s Motion for Reconsideration is
DENIED. Appellant fails to show that any grounds for
reconsideration exist. See United States Air Force
Court of Criminal Appeals Rules of Practice and Pro-
cedure, Rule 19.2. See also United States v. Bethea, 46
C.M.R. 223, 225 (C.M.A. 1973) (evidence not pre-
sented at trial cannot be used to support or reverse a
conviction).
1 This Court had granted an enlargement of
time to Appellant for filing of his motion to recon-
sider.
(49a)
4) This Court’s opinion, dated 29 March 2016,
shall be corrected by striking out the first sentence of
the opinion and replacing it with the following lan-
guage: Appellant was convicted, contrary to his pleas,
by a military judge sitting alone of making false offi-
cial statements, aggravated sexual assault, aggra-
vated sexual contact, abusive sexual contact, and as-
sault consummated by a battery, in violation of Arti-
cles 107, 120, and 128, 10 U.S.C. §§ 907, 920, and
928.2
[SEAL] FOR THE COURT
[SIGNATURE]
LAQUITTA J. SMITH
Appellate Paralegal Specialist
2 A corrected copy is attached to this Order.
(50a)
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States, USCA Dkt. No. 16-
Appellee 0660/AF
Vv. Crim.App. No. 38671
Andrew K. Lewis,
Appellant ORDER
On further consideration of the granted issue
(Daily Journal Dec. 19, 2016), the facts that the
United States Air Force Court of Criminal! Appeals is-
sued its judgment in Appellant’s case on May 17,
2016, and Colonel Martin T. Mitchell was appointed
by the President to the United States Court of Mili-
tary Commission Review on May 25, 2016, and in light
of United States v. Dalmazzi,__M.J._ (C.A.A.F. Dec.
15, 2016), it is, by the Court, this 27th day of Decem-
ber, 2016,
ORDERED:
That the order of December 19, 2016, granting
review is hereby vacated, and Appellant’s petition for
grant of review is denied.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
(51a)
UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist [AN T. MILLER
United States Army, Appellant
ARMY 20150170
Headquarters, United States Army
Maneuver Center of Excellence
Jeffery R. Nance and Charles A. Kuhfahl, Jr.,
Military Judges
Colonel Charles C. Poche, Staff Judge Advocate
For Appellant: Captain Heather L. Tregle, JA; Cap-
tain Michael A. Gold, JA.
For Appellee: Lieutenant Colonel A.G. Courie III, JA.
6 May 2016
DECISION
Per Curiam:
(52a)
On consideration of the entire record, including
consideration of the issues personally specified by the
appellant, we hold the findings of guilty and the sen-
tence as approved by the convening authority correct
in law and fact. Accordingly, those findings of guilty
and the sentence are AFFIRMED.
FOR THE COURT:
[SIGNATURE]
MALCOLM H. SQUIRES, JR.
Clerk of Court
(53a)
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States, USCA Dkt. No. 16-
Appellee 0641/AR
Vv. Crim.App. No. 20150170
lan T. Miller,
Appellant ORDER
On further consideration of the granted issues,
__M.J.__ (Daily Journal Nov. 30, 2016), the facts that
the United States Army Court of Criminal Appeals is-
sued its judgment in Appellant's case on May 6, 2016,
and Appellate Military Judge Larss G. Celtnieks was
appointed by the President to the United States Court
of Military Commission Review on May 25, 2016, and
in light of United States v. Dalmazzi, _ Md.
(C.A.A.F, Dee. 15, 2016), it is, by the Court, this 17th
day of January, 2017,
ORDERED:
That the order of November 30, 2016, granting
review is hereby vacated, and Appellant’s petition for
grant of review is denied.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
(54a)
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman JOSEPH D. MORCHINEK
United States Air Force
ACM 832291
9 May 2016
Sentence adjudged 28 September 2014 by SPCM con-
vened at Bagram Airfield, Afghanistan. Military
Judge: Christopher F. Leavey.
Approved Sentence: Bad-conduct discharge, confine-
ment for 2 months, forfeiture of $1,021.00 pay per
month for 2 months, reduction to E-1, and a repri-
mand.
Appellate Counsel for the Appellant: Captain Lauren
A. Shure.
Appellate Counsel for the United States: Captain Ty-
ler B. Musselman and Gerald R. Bruce, Esquire.
Before
ALLRED, MITCHELL, and ZIMMERMAN
Appellate Military Judges
(55a)
OPINION OF THE COURT
This opinion is issued un lished opinion
and uch, d not 3 en er
AFC e of ctice and P re 18.4.
ZIMMERMAN, Judge:
Appellant was convicted, contrary to his plea,
by a panel of officer members of misbehavior before
the enemy in violation of Article 99, UCMJ, 10 U.S.C.
§ 899. Appellant was convicted by the military judge,
in accordance with his plea, of use, distribution and
possession of hashish while receiving special pay in vi-
olation of Article 112a, UCMJ, 10 U.S.C. § 912a. The
court sentenced him to a bad-conduct discharge, con-
finement for two months, forfeiture of $1,021 pay per
month for two months, reduction to the grade of E-1,
and a reprimand.! The sentence was approved, as ad-
judged, on 2 February 2015.
1 The court-martial order incorrectly states
that the sentence was adjudged by the military judge,
rather than members. We direct the promulgation of
a corrected order. We also note that a reprimand was
adjudged and approved, but not included on the con-
vening authority’s action, as required by Air Force In-
struction 51-201, Administration of Military Justice (6
June 2013). Since the omission of the reprimand does
not prejudice a material right of Appellant, we direct
no further action in that regard. See Article 59(a),
UCMJ, 10 U.S.C. § 859(a).
(56a)
Appellant argues that: (1) the evidence was fac-
tually insufficient to establish that Appellant was “be-
fore the enemy” and endangered the safety of Bagram
Airfield; (2) that the Government was required to
prove that Appellant had a duty to defend Bagram
Airfield, and that it failed to do so; (3) the military
judge erred in instructing the members prior to delib-
eration on findings; and (4) the court-martial lacked
jurisdiction over the charge of misbehavior before the
enemy because it alleged a capital offense yet was re-
ferred without consent of the general court-martial
convening authority. Finding no error that materially
prejudices a substantial right of Appellant, we affirm
the findings and sentence.
Background
Appellant used, distributed, and possessed
hashish both on and off-duty as a security forces mem-
ber deployed to Bagram Airfield, Afghanistan. He pled
guilty to the controlled substance offenses, but con-
tested the charge that his use constituted misbehavior
before the enemy. He argued that under the circum-
stances, his drug offenses did not endanger the safety
of the installation. He further contended that, based
upon the state of hostilities, he was not before the en-
emy at the time of his misconduct. Appellant stipu-
lated that on one occasion he used hashish while
posted to a perimeter response team which had imme-
diate-action responsibilities in the event of an attack
on the installation. In that capacity, he was the senior
member of a three-person crew of a tactical vehicle
armed with a crew-served machine gun mounted in a
(57a)
turret. During that time, he both used hashish and
distributed it to the other members of his crew. He
also stipulated that on another occasion he used hash-
ish while responsible for the search and inspection of
personnel coming onto the installation. His com-
mander testified during the trial that both postings
were part of a “defense in depth” strategy to defend
the installation. The commander also testified that
the installation came under indirect fire attacks dur-
ing the charged timeframe.
Factual and Legal Sufficiency
Appellant first argues that the evidence was
factually insufficient to sustain his conviction for mis-
behavior before the enemy because the Government
failed to prove that his misconduct was actually before
the enemy and that it endangered the installation. We
review issues of factual sufficiency de novo. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for factual sufficiency is “whether, af-
ter weighing the evidence in the record of trial and
making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s
guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in
United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000).
In conducting this unique appellate role, we take “a
fresh, impartial look at the evidence,” applying “nei-
ther a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination
as to whether the evidence constitutes proof of each
(58a)
required element beyond a reasonable doubt.” Wash-
ington, 57 M.J. at 399.
The Manual for Courts-Martial provides an ex-
planation for the term “before the enemy.”
Whether a person is “before the enemy”
is a question of tactical relation, not dis-
tance. For example, a member of an
antiaircraft gun crew charged with op-
posing anticipated attack from the air, or
a member of a unit about to move into
combat may be before the enemy alt-
hough miles from the enemy lines. On
the other hand, an organization some
distance from the front or immediate
area of combat which is not a part of a
tactical operation then going on or in im-
mediate prospect is not “before or in the
presence of the enemy” within the mean-
ing of this article.
Manual for Courts-Martial, United States, pt. IV, {
23.c.(1)(c) (2012 ed.). Our superior court has also ex-
amined the issue, holding that “if an organization is
in position ready to participate in either an offensive
or defensive battle, and, its weapons are capable of de-
livering fire on the enemy and in turn are so situated
that they are within effective range of the enemy
weapons, then that unit is before the enemy.” United
States v. Sperland, 5 C.M.R. 89, 91 (C.M.A. 1952).
(59a)
Appellant contends that “[n]o evidence was pre-
sented that Appellant was tactically engaged with the
enemy.” Neither Sperland nor the definition in the
Manual focuses on individual engagement, however.
The Manual references, by way of illustration, those
before the enemy as a “member of an antiaircraft gun
crew’ and “a member of a unit about to move into com-
bat.” Since one form of misbehavior before the enemy
is wrongful failure to engage in combat, we find this
unit-based analysis significant. See United States v.
Payne, 40 C.M.R. 516, 519-20 (A.B.R. 1969). Appel-
lant’s commander affirmatively testified that the unit
was tactically engaged in the defense of Bagram Air-
field. We find Appellant’s contention that Bagram Air-
field was “some distance from the front or immediate
area of combat” unconvincing in light of the uncon-
tested evidence in the record that the installation did,
in fact, come under indirect-fire attack during the
charged time-frame. Nor are we convinced by Appel-
lant’s argument that his misconduct did not actually
endanger the base. After making allowances for not
having personally observed the witnesses, and based
upon our independent review of the record, we are con-
vinced beyond a reasonable doubt that Appellant was
before the enemy and that his conduct endangered
Bagram Airfield.
Appellant separately argues that, although not
explicitly stated in the statute, the specification as al-
leged incorporated as an element that Appellant had
a duty to defend Bagram Airfield. More importantly,
Appellant argues that the Government failed to prove
(60a)
such an element beyond a reasonable doubt. We con-
strue this assignment of error as an assertion that the
evidence was factually and legally insufficient to sup-
port his conviction because it did not show that Appel-
lant had a duty to defend Bagram Airfield.
We review legal sufficiency of the evidence de
novo. Washington, 57 M.J. at 399. “The test for legal
sufficiency of the evidence is ‘whether, considering the
evidence in the light most favorable to the prosecu-
tion, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.”
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F.
2002) (quoting Turner, 25 M.J. at 324). The term rea-
sonable doubt does not mean that the evidence must
be free from conflict. United States v. Lips, 22 M.J.
679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions
of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor
of the prosecution.” United States v. Barner, 56 M.JJ.
131, 134 (C.A.A.F. 2001). Our assessment of legal and
factual sufficiency is limited to the evidence produced
at trial. United States v. Dykes, 38 M.J. 270, 272
(C.M.A. 1993). We review the factual sufficiency com-
ponent of Appellant’s assertion using the same stand-
ard of review and legal test articulated above.
Appellant first sets out a statutory and due pro-
cess argument to establish, as an element, that Appel-
lant had a duty to defend Bagram Airfield. We agree
with Appellant’s interpretation that the specification
alleged in this case established an element that Ap-
pellant had a duty to defend Bagram Airfield.
(61a)
We find, however, that the evidence was factu-
ally and legally sufficient to show that Appellant had
such a duty. Appellant’s commander testified both
about the general duty of Airmen assigned to his unit
and about the specific duties Appellant performed. He
testified that all members of his unit had a duty to de-
fend Bagram Airfield. He also testified about the lay-
ered defenses he employed, including searches of in-
coming and outgoing traffic as well as perimeter re-
sponse teams with additional weapons. Other mem-
bers of the unit also testified that Airmen assigned to
the unit had a duty to defend Bagram Airfield, even
during rest periods, or while “off-shift.” Appellant also
stipulated that he “was assigned to perform base de-
fense duties.” More specifically, Appellant stipulated
that he used hashish while on-shift assigned to both
search duties and perimeter response team duties. We
find this evidence was sufficient when viewed in the
light most favorable to the prosecution for a reasona-
ble finder of fact to conclude that Appellant had a duty
to defend Bagram Airfield at all times relevant to the
charged offense. We ourselves, after making allow-
ances for not having personally observed the wit-
nesses, and based upon our independent review of the
record, also conclude beyond a reasonable doubt that
Appellant was guilty of the offense alleged.
Reasonable Doubt Instruction
Appellant also argues that the military judge
erred in instructing the members prior to deliberation
on findings, particularly as it relates to reasonable
(62a)
doubt. We review de novo the military judge’s instruc-
tions to ensure that they correctly address the issues
raised by the evidence. United States v. Maxweil, 45
M.J. 406, 424 (C.A.A.F. 1996). When, as in this case,
trial defense counsel] made no challenge to the instruc-
tion now contested on appeal, the matter has been
forfeited absent plain error.2 See Rule for Courts-
Martial (R.C.M.) 920(f). If we find error, we must
then determine whether the error was harmless
beyond a rea-sonable doubt. United States v. Medina,
69 M.J. 462, 465 (C.A.A.F. 2011).
The language used by the military judge in Ap-
pellant’s case is—and has been for many years—an
accepted reasonable doubt instruction used in Air
Force courts-martial. See, eg., United States v.
Sanchez, 50 M.J. 506, 509-10 (A.F. Ct. Crim. App.
1999); see also United States v. Gibson, 726 F.2d 869,
873-74 (1st Cir. 1984) (upholding similar language).
It was also offered by our superior court as a suggested
instruction. See United States v. Meeks, 41 M.J. 150,
157—58 n.2 (C.M.A. 1994) (citing Fed«-ral Judicial Cen-
ter, Pattern Criminal Jury Instruction 17-18 (1987)).
As such, we cannot say the military judge committed
error, plain or otherwise, in giving the challenged in-
struction in Appellant’s case.
Jurisdiction over Capital Offense
2 Although we recognize that the rule speaks °f
“waiver,” this is in fact forfeiture. United States. v.
Sousa, 72 M.J. 643 (A.F. Ct. Crim. App. 2013).
(63a)
Appellant raises for the first time on appeal
that the convening authority who referred his case to
a special court-martial lacked the consent of the gen-
eral court-martial convening authority, thereby de-
priving the court of jurisdiction to hear the case. See
R.C.M. 201(f)(2)(C); United States v. Henderson, 59
M.J. 350, 353 (C.A.A.F. 2004). We disagree with Ap-
pellant’s contention.
“The jurisdiction of a special court-martial over
a non-mandatory capital offense is a legal question we
review de novo.” Henderson, 59 M.J. at 351-52.
“Misbehavior before the enemy” under Article
99, UCMJ, is a non-mandatory capital offense, pun-
ishable by “[djeath or such other punishments as a
court-martial may direct.” Manual for Courts-Martial,
United States, pt. IV, 4 23.e. (2012 ed.). When read
to-gether, Article 19, UCMJ, and R.C.M. 201(f)(2)(C)
(ii)? allow a special court-martial convening authority
(SPCMCA) to refer a non-mandatory capital offense to
trial by special court-martial, when permitted by “[a]n
officer exercising general court-martial jurisdiction
over the command which includes the accused.” Ap-
pellant did not raise this jurisdictional issue at trial,
and the record of trial is devoid of any indication that
the general court-martial convening authority
(GCMCA) granted authority to the convening author-
ity. Hence, the Government filed affidavits in support
3 Although we recognize that the rule speaks of
“waiver,” this is in fact forfeiture. United States. v.
Sousa, 72 M.J. 643 (A.F. Ct. Crim. App. 2013).
(64a)
of its argument that the convening authority actually
exercised proper jurisdiction under the R.C.M.
201(f)(2)(C)(ii) exception, which affidavits were not
contested by Appellant.‘
The Government supplied an affidavit from the
GCMCA and one from the SPCMCA who convened
this court-martial. Both affiants unequivocally at-
tested to discussing this case with one another on mul-
tiple occasions, and to the GCMCA’s granting of ap-
proval to the SPCMCA to refer the Article 99 offense
to a special court-martial. We find the statements in
the affidavits were relevant; the GCMCA granted per-
mission to the convening authority to refer the of-
fenses to trial by a special court-martial; and there-
fore, the special court-martial had jurisdiction to con-
vict and sentence Appellant.®
* The Government filed a motion to attach
documents with its response to Appellant’s supple-
mental filings, which motion was uncontested and
granted by this court. We considered the affidavits in
our review of Appellant’s claim of jurisdictional error.
See United States v. Ginn, 47 M.J. 236, 242 (C.A.A.F.
1997); United States v. Averell, 2014 CCA LEXIS 841
(N.M. Ct .Crim. App. 6 November 2014), pet. rev. de-
nied, 74 M.J. 354 (C.A.A.F. 2015) (where appellant
did not raise jurisdictional issue at trial and did not
dispute contents of post-trial affidavit, court relied on
post-trial affidavit to find proper referral of charges
to court-martial).
5 Although neither required by law nor regula-
tion, where the GCMCA permits a non-mandatory
(65a)
Conclusion
The approved findings and sentence are correct
in law and fact, and no error materially prejudicial to
the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Ac-
cordingly, the approved findings and sentence are AF-
FIRMED.
[SEAL] FOR THE COURT
[SIGNATURE]
LEAH M. CALAHAN
Clerk of the Court
capital offense to be referred to a special court-mar-
tial, such approval could be expressly stated on the
charge sheet, DD Form 458, Section V.
(66a)
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States, USCA Dkt. No. 16-
Appellee 0671/AF
Vv. Crim.App. No. $32291
Joseph D. Morchinek,
Appellant ORDER
On further consideration of the granted issue
(Daily Journal Oct. 18, 2016), the facts that the
United States Air Force Court of Criminal Appeals is-
sued its judgment in Appellant’s case on May 9, 2016,
and Colonel Martin T. Mitchell was appointed by the
President to the United States Court of Military Com-
mission Review on May 25, 2016, and in light of
United States v. Dalmazzi, _. M.J. __ (C.A.A.F. Dec.
15, 2016), it is, by the Court, this 27th day of Decem-
ber, 2016,
ORDERED:
That the order of October 18, 2016, granting re-
view is hereby vacated, and Appellant’s petition for
grant of review is denied.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
(67a)
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
UNITED STATES
Vv.
Airman First Class
KELVIN I. L. OSHAUGHNESSY
United States Air Force
ACM 38732
5 May 2016
Sentence adjudged 21 August 2014 by GCM convened
at Ellsworth Air Force Base, South Dakota. Military
Judge: Gregory O. Friedland (arraignment) and
Vance H. Spath.
Approved Sentence: Bad-conduct discharge, confine-
ment for 60 days, forfeiture of all pay and allowances,
and reduction to E-1.
Appellate Counsel for the Appellant: Captain Lauren
A. Shure.
Appellate Counsel for the United States: Colonel
Katherine E. Oler; Captain Tyler B. Musselman; and
Gerald R. Bruce, Esquire.
Before
MITCHELL, MAYBERRY, and BROWN
Appellate Military Judges
(68a)
OPINION OF THE COURT
This opinion is issued as an unpublished opinion
and, as such, does not serve nt under
AFCCA Rule of Practice and Procedure 18.4.
MAYBERRY, Judge:
At a general court-martial composed of officer
and enlisted members Appellant was convicted, con-
trary to his pleas, of one charge and one specification
each of sexual assault and abusive sexual contact, in
violation of Article 120 UCMJ, 10 U.S.C. § 920. Appel-
lant was acquitted of one specification of abusive sex-
ual contact. The court sentenced Appellant to a bad-
conduct discharge, confinement for 60 days, forfeiture
of all pay and allowances, and reduction to E-1. The
convening authority approved the sentence as ad-
judged but deferred the adjudged forfeitures from 14
days after sentence was announced until action.
On appeal, Appellant contends that the mental
health records of RS, Appellate Exhibit VII, are in-
complete thereby render the record of trial incom-
plete. Accordingly, Appellant asserts that he was de-
nied due process under the Fifth Amendment! when
this court failed to examine the entire record of trial
and that he was further denied due process under the
Fifth Amendment due to appellate counsel’s inability
1 U.S. CONST. amend. V.
(69a)
to review the complete mental health records, result-
ing in counsel’s inability to provide effective assis-
tance of counsel. We disagree and affirm the findings
and sentence.
Prior to filing his assignment of errors, Appel-
lant moved this court to compel the production of “the
entirety of the mental health records for Ms. RS.” Ap-
pellant asserted that the presence of an arrow in the
margins of one page of the records contained in the
mental health records “indicates there is more infor-
mation contained on the back side or additional
pages.” Appellant’s position is that facially it appears
the mental health records as provided to the Govern-
ment, and eventually the military judge, were incom-
plete. Appellant maintained that the incomplete rec-
ord prohibited his counsel from determining whether
there was some prejudice or harm to Appellant and
this court was unable to conduct its review pursuant
to Article 66, UCMJ.
This court denied the motion to compel, apply-
ing the four-prong standard for post-trial discovery set
out in United States v. Campbell, 57 M.J. 134, 138
(C.A.A.F. 2002). This court held that Appellant had
failed to meet his threshold burden of demonstrating
some measure of appellate inquiry was warranted in
this matter. First, he had not demonstrated that the
claimed “additional” records exist. Appellate Exhibit
VII was reviewed in camera by the military judge at
trial, and later provided to both trial and trial defense
(70a)
counsel. Additionally, their respective expert consult-
ants were authorized to review the documents. RS
was interviewed by trial defense counsel and testified
in findings and sentencing but there was no showing
that trial defense counsel inquired about the hand-
written arrow or questioned the completeness of the
record at trial. Finally, since Appellant had not filed
an assignment of errors at the time of his motion, he
had not provided a sufficient showing of relevance to
a claim of error or defense and this court was unable
to determine whether there was a reasonable proba-
bility that the result of the proceeding would have
been different if this information had been disclosed
(assuming it exists). Additional facts necessary to re-
solve this issue are discussed below.
The sole error now claimed by Appellant is that
the record of trial is incomplete as a result of the ex-
istence of this extraneous mark contained on one page
of the sealed mental health records. Appellant’s re-
quested relief is that either the conviction be set aside
or the bad-conduct discharge be disapproved.
Record of Trial—Is it Complete?
The issues of whether a record of trial is com-
plete and a transcript is verbatim are questions of law
that we review de novo. United States v. Davenport,
73 M.J. 373, 376 (C.A.A.F. 2014). The lack of a verba-
tim transcript and an incomplete record are two sepa-
rate and distinct errors. United States v. Gaskins, 72
M.J. 225, 230 (C.A.A.F. 2013).
(71a)
We first address the issue of whether the tran-
script is verbatim; it is. Article 54(c)(1), UCM, 10
U.S.C. § 854(c)(1), requires a “complete” record of the
proceedings and testimony to be prepared for any gen-
eral court-martial resulting in a punitive discharge. A
“complete” record must include the exhibits that were
received in evidence, along with any appellate exhib-
its. Rule for Courts-Martial (R.C.M.) 1103(b)(2)(D)(v).
The “missing” appellate exhibit page(s) solely raise
the issue of whether the record is complete. The
threshold question is whether the missing exhibits are
substantial, either qualitatively or quantitatively.
Davenport, 73 M.J. at 377. Omissions may be quanti-
tatively insubstantial when in light of the entire rec-
ord the omission is “so unimportant and so uninfluen-
tial. . . that it approaches nothingness.” Jd. (quoting
United States v. Nelson, 13 C.M.R. 38, 43 (C.M.A.
1953)).
Where a record is missing an exhibit, this court
evaluates whether the omission is substantial. United
States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2000). “In-
substantial omissions from a record of trial do not
raise a presumption of prejudice or affect that record’s
characterization as a complete one.” Jd. Whether an
omission is insubstantial is a “case-by-case,” fact
based inquiry.” United States v. Abrams, 50 M.J. 361,
363 (C.A.A.F. 1999). If the omission is substantial,
thereby raising a presumption of prejudice, the Gov-
ernment may rebut the presumption by reconstruct-
ing the missing material. United States v. Lovely, 73
M.J. 658, 676 (A.F. Ct. Crim. App. 2014).
(72a)
Based upon the evidence in the record of trial,
Appellate Exhibit VII includes every page provided to
the military judge for his in camera review. We note
that the record of trial is silent as to the number of
pages provided to the judge.? We also note that the
mental health records were not sealed at the time they
were provided to the military judge. However, there
was no objection or comment of any kind made by any
party when this fact was announced in open court by
the Special Victim’s Counsel (SVC). Additionally,
while the trial counsel indicated on the record that
they had procured the mental health records, it was
the SVC who provided them to the military judge,
stating on the record that his client had them in her
possession. The military judge took possession of the
documents and indicated that he would “identify page
numbers later.” After his in camera review of the doc-
uments, the military judge held that there was noth-
ing material or necessary to the defense and did not
provide the records to either party; they remained
sealed. The military judge forewarned the SVC that if
there was victim impact evidence presented during
the sentencing phase, assuming there was a sentenc-
ing phase, this issue would likely resurface. The SVC
2 The only estimate as to the number of pages
is offered by the trial counsel during the closed hear-
ing on the Defense Motion to Compel Mil. R. Evid.
513 records. Trial counsel indicates that the records
have been secured, and indicates the number of
pages is “bordering [on] maybe 100 or so.”
(73a)
acknowledged that possibility and advised that he had
discussed it with his client.
In the sentencing phase of the trial, the SVC re-
quested that RS be allowed to make an unsworn state-
ment. Again, the military judge discussed the possi-
bility of this allowing access by counsel to the mental
health records. The record of trial references that over
the evening recess, the military judge decided to pro-
vide access to the mental health records and sent an
email to the parties notifying them of his decision. On
the record the next day the military judge states
“both sides have a copy.”? RS provided an unsworn
state-ment to the court. In rebuttal, the defense
offered a single page from those records as Defense
Exhibit R, without objection from the SVC or the
Government. This document was admitted and
sealed. The page of-fered was neither the page
containing the arrow, nor the other pages of the
mental health records contain-ing information on
this same subject matter.4 The Government did not
call RS or offer any surrebuttal.
3 The record of trial does not contain the email,
and the transcript contains no additional explanation
as to how the sealed matters were provided to the
counsel. We consider this to be analogous to a Rule for
Courts-Martial 802 session and remind military
judges and counsel that such matters should be in-
cluded in the record orally or in writing.
4 To avoid unnecessarily disclosing the content
of privileged mental health records, this court deliber-
ately confines our description of the narrative on that
(74a)
The record of trial contains no further discus-
sion regarding the content of the mental health rec-
ords in Appellate Exhibit VII. The Master Index for
the record of trial does not indicate the number of
pages contained in Appellate Exhibit VII, nor does the
cover sheet of the envelope containing the exhibit. The
only quantitative description of the records was by the
trial counsel, when he opined that they bordered on
100 pages. There are in fact 12 pages. However, in so
far as the mental health records were in the posses-
sion of the SVC and trial counsel had not seen them,
his assessment can best be characterized as an esti-
mate designed to guide the military judge’s decision
as to how long it would take him to review the mate-
rial.
Appellate Exhibit VII contains a “Release of
Confidential Information Authorization Form” signed
by RS on 12 August 2014, authorizing release of the
entire contents of her mental health records to her
SVC. There is no evidence before us to support that
the mental health records provided to the military
judge differ in any way from the documents contained
in Appellate Exhibit VII. Both Appellant’s counsel and
this court have access to the entire original record of
trial. The record of trial in this case is complete.
Assuming arguendo the presence of an arrow in
the margin signifies that additional pages of mental
page to be administrative in nature. Furthermore, the
same subject matter is present on two other pages.
(75a)
health records exist, this court must determine
whether the omission is substantial. Lovely, 73 M.dJ.
at 676. These records only affect the sentencing phase
of the trial because they only became relevant after
RS provided victim impact evidence. Appellant subse-
quently offered a portion of one page of the records.
Having examined the contents of the page with the ar-
row, even if that arrow refers to additional matters
found on the back of the same page or an additional
page, we are convinced those matters would be insub-
stantial with respect to sentencing. We find that if ad-
ditional records exist related to the subject matter
proximate to the arrow, their omission is insubstan-
tial. In this case the omission was insubstantial both
qualitatively, because the substance of the omitted
testimony presumably relates directly to the subject
matter proximate to the arrow, and quantitatively,
since the subject matter is addressed in other portions
of the mental health records. That information is not
relevant to the subject matter of RS’s victim impact
evidence.
Finally, we reevaluate the propriety of post-
trial discovery using the Campbell factors. Campbell,
57 M.J. at 138. Our assessment is unchanged regard-
ing the factors that Appellant has not made a colora-
ble showing that the evidence exists or that the evi-
dence, if it exists, was discoverable at the time of trial
had the trial defense counsel raised the issue with the
military judge, the individual who provided the copies,
or RS herself. Given that Appellant has not asserted
any error other than the speculation that the record of
(76a)
trial is incomplete, this court finds that any potential
additional information is not relevant to an articu-
lated claim or defense and there is no reasonable prob-
ability that the result of the proceeding would have
been different if the putative information had been
disclosed.
The record of trial is complete. Appellant’s
counsel had the benefit of reviewing the entire record
of trial and was able to provide effective assistance.
We are able to conduct a thorough and detailed appel-
late review of this case and have done so.
Conclusion
The approved findings and sentence are correct
in law and fact, and no error materially prejudicial to
the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Ac-
cordingly, the approved findings and sentence are AF -
FIRMED.
[SEAL] FOR THE COURT
[SIGNATURE]
LEAH M. CALAHAN
Clerk of the Court
(77a)
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States, USCA Dkt. No. 16-
Appellee 0616/AF
v. Crim.App. No. 38732
Kelvin L. O’Shaugh-
nessy, ORDER
Appellant
On further consideration of the granted issue
(Daily Journal Nov. 29, 2016), the facts that the
United States Air Force Court of Criminal Appeals is-
sued its judgment in Appellant’s case on May 5, 2016,
and Colonel Martin T. Mitchell was appointed by the
President to the United States Court of Military Com-
mission Review on May 25, 2016, and in light of
United States v. Dalmazzi, MJ. (C.AA.F. Dec.
15, 2016), it is, by the Court, this 27th day of Decem-
ber, 2016,
ORDERED:
That the order of November 29, 2016, granting
review is hereby vacated, and Appellant’s petition for
grant of review is denied.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
(78a)
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States, USCA Dkt. No. 16-
Appellee 0671/AF
v. Crim.App. No. 38839
Keanu D.W. Ortiz,
Appellant ORDER AND
JUDGEMENT
On consideration of the briefs of the parties, the
briefs of amici curiae, and oral argument, it is, by the
Court, this 9th day of February, 2017,
ORDERED:
That the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed. The
opinion of the Court will be issued on a future date.
C.A.A.F. R. 43(b). A petition for reconsideration may
be filed no later than 10 days after the date of the is-
suance of said opinion.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
(79a)
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States, USCA Dkt. No. 16-
Appellee 0689/AF
v. Crim.App. No. 2016-04
Charles D. Buford,
Appellant ORDER
On further consideration of the petition for
grant of review of the decision of the United States Air
Force Court of Criminal Appeals on appeal by the
United States under Article 62, Uniform Code of Mil-
itary Justice, 10 U.S.C. § 862, and the granted speci-
fied issue, it is noted that the court below has neither
affirmed nor reversed the ruling of the military judge
and instead has vacated the ruling at the court-mar-
tial and remanded the case to the military judge.
There is, at present, no extant ruling which excludes
evidence, and if the ruling below is effectuated, the
judgment of the Court of Criminal Appeals would re-
sume, not terminate, the proceedings. Additionally,
the granted assigned issues are without merit in view
of our holding in United States v. Ortiz, _ M.J. __
(C.A.A.F. 2017). Accordingly, it is, by the Court, this
13th day of February, 2017,
ORDERED:
That the order granting the petition for grant of
review is hereby vacated and the case is returned to
(80a)
the Judge Advocate General of the Air Force for exe-
cution of the remand and further consideration or-
dered by the Court of Criminal Appeals in accordance
with United States v. Kosek, 41 M.J. 60, 64-65 (C.M.A.
1994).
For the Court,
/s/ William A. DeCicco
Clerk of the Court
(81a)
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