UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 40168 (f rev)

________________________

UNITED STATES

Appellee

v.

Yasmeen M. LAKE

Senior Airman (E-4), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Upon Further Review

Decided 5 October 2023

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Military Judge: Bryon T. Gleisner; Dayle P. Percle (remand).

Sentence: Sentence adjudged on 21 April 2021 by GCM convened at Joint 

Base Langley-Eustis, Virginia. Sentence entered by military judge on 

20 May 2021: Bad-conduct discharge, $8,000.00 fine, and reduction to 

E-2.

For Appellant: Major David L. Bosner, USAF.

For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Morgan R. Christie, USAF; Major Deepa M. Patel, USAF; Major John P. 

Patera, USAF; Captain Jocelyn Q. Wright, USAF; Mary Ellen Payne, 

Esquire.

Before ANNEXSTAD, GRUEN, and KEARLEY, Appellate Military 

Judges.

Senior Judge ANNEXSTAD delivered the opinion of the court, in which 

Judge GRUEN and Judge KEARLEY joined.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________
United States v. Lake, No. ACM 40168 (f rev)

2

ANNEXSTAD, Senior Judge:

A panel of officer members sitting as a general court-martial convicted Appellant, contrary to her pleas, of 14 specifications

1 of fraudulent use of a credit 

card, debit card, or other access device, in violation of Article 121a, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 921a; and two specifications2 of 

larceny, in violation of Article 121, UCMJ, 10 U.S.C. § 921.

3 The panel sentenced Appellant to a bad-conduct discharge, an $8,000.00 fine, and reduction 

to the grade of E-2. The convening authority took no action on the findings or 

sentence. 

Appellant’s case is before this court for a second time. On 7 December 2022, 

we remanded this case and returned the record of trial to the Chief Trial Judge 

of the Air Force Trial Judiciary for correction under Rule for Courts-Martial 

(R.C.M.) 1112(d). United States v. Lake, No. ACM 40168, 2022 CCA LEXIS 

706, at *2 (A.F. Ct. Crim. App. 7 Dec. 2022) (order). Specifically, 13 prosecution 

exhibits in the record of trial were not viewable by this court or the parties

because proprietary software was needed to view the video evidence.

4 Id. at 

*1–2. This court returned the record of trial for correction to make the 13 prosecution exhibits viewable. On 24 January 2023, Appellant’s case was re-docketed with this court. All parties, to include the court, have been able to view

the 13 prosecution exhibits. Therefore, we find that the military judge has complied with our previous order, and the error has been corrected.

Appellant raises five issues, which we have reordered and reworded: (1)

whether the military judge abused his discretion by admitting evidence under 

Mil. R. Evid. 404(b); (2) whether Appellant’s convictions are legally and factually sufficient; (3) whether the findings of guilty should be set aside and dismissed because they represent an unreasonable multiplication of charges; (4) 

whether Appellant is entitled to relief for an unreasonable delay in docketing 

her case with this court; and (5) whether Appellant was deprived of her right 

to a unanimous verdict. We have carefully considered issues (3) and (5) and 

find they do not require further discussion or warrant relief. See United States 

v. Matias, 25 M.J. 356, 361 (C.M.A. 1987); see also United States v. Anderson, 

83 M.J. 291, 302 (C.A.A.F. 2023) (holding “[a]ppellant did not have a right to a 

1 There are seven specifications each under Charge I and Additional Charge I.

2 There is one specification each under Charge II and Additional Charge II. 

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

Evidence are to the Manual for Courts-Martial, United States (2019 ed.).

4 The exhibits contained surveillance video as discussed infra.
United States v. Lake, No. ACM 40168 (f rev)

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unanimous verdict at his court-martial under the Sixth Amendment, Fifth 

Amendment due process, or Fifth Amendment equal protection”5).

Finding no error that materially prejudiced a substantial right of Appellant, we affirm the findings and sentence.

I. BACKGROUND

On four days between 21 May 2019 and 14 June 2019, Appellant made 14

different fraudulent transactions at the Naval Exchange (NEX) in Little Creek, 

Virginia. In total, Appellant purchased over $16,000.00 of third-party gift cards

and high-value merchandise, using stolen credit card information from 11 different credit card holders. 

The scheme began in May 2019, after Appellant’s boyfriend AA and his 

friend CH put Appellant in contact with AP, a former military member, who 

they said could help Appellant make money by using her military status to 

purchase gift cards and electronics for AP at the NEX.6 The evidence presented 

at trial showed Appellant received fraudulent prepaid debit cards from AP that

contained stolen credit card account information on the magnetic strip, but did 

not contain a security chip. Appellant used these cards at the NEX multiple 

times before the credit card companies flagged the cards for fraud and denied 

transactions. The evidence showed that Appellant typically went to multiple 

different registers, making a few transactions at each register on the same day.

Appellant subsequently provided the gift cards and merchandise to AP after she purchased the items. In exchange for her efforts, AP paid Appellant 

with gift cards or with a portion of the sale proceeds if the merchandise was 

later sold. On the advice of AP, Appellant then took the gift cards to various 

grocery stores in the area and used the gift cards to purchase money orders. 

Documentary evidence admitted at trial showed Appellant typically purchased 

$500.00 money orders with $500.00 gift cards, and that most of the money orders were made payable to Appellant and deposited in her personal bank account. Other money orders were made out to AP or AA.

5 U.S. CONST. amends. V, VI.

6 Evidence introduced during trial detailed that in 2015 AP was detained by the loss 

prevention personnel at the NEX in Norfolk, Virginia, for attempting to purchase items 

using stolen credit card information. Additionally, the Government produced evidence 

that AP was subsequently convicted at a special court-martial for conspiracy and larceny which were related to fraudulent credit card purchases at the NEX. Also included 

in this evidence was information detailing that AP had converted some of his fraudulent purchases into money orders made payable to himself.
United States v. Lake, No. ACM 40168 (f rev)

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A few days after the transactions, the credit card account holders noticed

NEX purchases on their statements that they did not authorize and reported 

the unauthorized use to their credit card companies. In response, representatives from the various credit card companies notified the NEX sales audit team 

of the fraudulent purchases who in-turn notified Mr. BB, the NEX loss prevention (LP) officer. As a result, Mr. BB opened a formal investigation and testified 

about the results of his investigation. Mr. BB’s investigation revealed that Appellant mainly bought gift cards and electronics at the NEX with the debit 

cards that contained stolen credit card information. The Government presented evidence that Appellant specifically purchased, inter alia, approximately 22 gift cards, two laptop computers, a tablet computer, and a computer 

video game console.

Mr. BB testified at Appellant’s trial that the NEX was liable for any fraudulent charges an individual disputed on their credit card, not the credit card 

company, because the NEX did not have credit card chip readers installed.

Mr. BB testified that he used LP software to track all of the suspected fraudulent transactions made at the NEX. He explained the software provided him 

with a transaction snapshot for each suspected fraudulent transaction that

showed the NEX register where the items were purchased, the cost of each 

item, and the credit card account numbers associated with the purchases. He 

also stated that he used video surveillance footage from the NEX registers to 

connect Appellant to the purchases. Finally, Mr. BB stated that he used a third 

computer system to determine where gift cards purchased at the NEX were

eventually spent. The video and documentary evidence collected by Mr. BB was 

admitted at trial.

II. DISCUSSION

A. Mil. R. Evid. 404(b), Crimes, Wrongs, or Other Acts

Appellant argues that the military judge abused his discretion by allowing 

the Government to introduce evidence under Mil. R. Evid. 404(b) that Appellant engaged in a layered conspiracy with AA and CH to commit the offense of 

fraudulent use of access devices.7 Appellant asserts prejudice because the Government was later permitted to use the evidence during argument. Appellant 

asks that we set aside the findings and sentence. We find the military judge 

did not abuse his discretion and that no relief is warranted.

1. Additional Background

7 Appellant does not allege the military judge erred in allowing similar evidence relating to AP. 
United States v. Lake, No. ACM 40168 (f rev)

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On three separate occasions, the Government gave written notice to Appellant that it intended to offer evidence under Mil. R. Evid. 404(b) in her courtmartial. The Government generally gave notice that Appellant had engaged in 

a conspiracy with AP, AA, and CH to commit larceny and fraud. The specific

evidence the Government sought to admit included evidence that on 25 May 

2019 and 14 June 2019, Appellant used fraudulently obtained gift cards from 

the NEX to obtain money orders made payable to herself and AA. Additionally,

the Government sought to introduce evidence that Appellant and CH used the 

same stolen credit card number within 25 minutes of each other to purchase 

identical items at the NEX—two $500.00 gift cards each. The evidence also 

showed that on a different day Appellant purchased an Apple MacBook Pro 

while CH is seen on video surveillance standing behind Appellant in line at the 

NEX.

Finally, the Government sought to introduce evidence that on 25 May 2019,

AA and CH were detained by LP personnel at the NEX for fraudulently using 

stolen credit card information to obtain gift cards, cologne, and electronic devices in separate purchases. This evidence also showed Appellant called the LP 

office on three occasions, and subsequently physically came to the LP office,

while AA and CH were detained, and asked LP personnel questions regarding 

their detention.

In response to the Government’s notices, Defense filed several motions in 

limine with the military judge to exclude this evidence under Mil. R. Evid. 

404(b). Appellant, through her trial defense counsel, objected to the admission 

of this evidence for three reasons: (1) the Mil. R. Evid. 404(b) notice included 

evidence of incidents that occurred after the charged offenses; (2) there was “no 

evidence that [Appellant] was involved, knew of, planned, or acted in conjunction with [AA] or [CH]” except to give AA “a ride home on the day he was 

stopped and questioned;” and (3) Appellant was not facing a conspiracy charge 

at her court-martial. 

In its response, the Government laid out that the evidence would be used

to support the underlying facts of the misconduct which included: records from 

the NEX’s internal computer system showing transactions as suspected fraud;

a stipulation of expected testimony from Mr. BB stating Appellant was observed to be working in concert with AA and CH; transaction data from every 

item alleged to have been charged on the fraudulent accounts; and testimony 

about Appellant contacting Mr. BB after AA and CH were detained, inquiring 

about the reasons for their detainment. Trial counsel argued the evidence 

demonstrated that Appellant “entered into a conspiracy with [AA] and [CH],” 

and was admissible pursuant to Mil. R. Evid. 404(b) for showing “intent, plan, 

motive, knowledge, absence of mistake, and . . . consciousness of guilt by” Appellant. 
United States v. Lake, No. ACM 40168 (f rev)

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A motions hearing was held before the military judge addressing the Government’s requests to present Mil. R. Evid. 404(b) evidence at Appellant’s 

court-martial and Appellant’s response to exclude this evidence. At the motions 

hearing, and on behalf of the Government, Mr. BB testified to his observations 

of Appellant, AA, and CH engaging in the acts described in the Government’s 

notices. The military judge made the following findings of fact.8

First, the military judge found that on 25 May 2019 and 14 June 2019, 

Appellant allegedly fraudulently obtained gift cards from NEX stores in the 

Norfolk, Virginia area traceable to money orders paid to Appellant and paid to

AA. The money orders listed a shared address for Appellant and AA. Second, 

that within 25 minutes of each other, Appellant and CH used the same stolen 

credit card number at the NEX, and purchased identical items of two $500.00

gift cards for an identical total purchase for $1,009.90 on 25 May 2019. Third, 

On 14 June 2019, Appellant fraudulently purchased an Apple MacBook Pro 

using stolen credit card information while an individual identified as CH stood

behind Appellant. 

The military judge also found that AA, CH, and a third unidentified individual were observed arriving at the NEX on 25 June 2019. AA and CH each 

fraudulently used credit card information, in separate purchases, to obtain

electronics, gift cards, and cologne. AA and CH were detained trying to leave 

the NEX, and while they were detained Appellant called Mr. BB to ask about 

AA and CH, and how long they would be in the LP office. Appellant was identified by the caller identification function of Mr. BB’s work phone. Appellant 

called the LP office two more times, but eventually went to the LP office. Appellant later stated to another Airman that she got “caught” because the LP

officer knew she was tied to AA and CH.

The military judge denied the Defense’s motion and allowed evidence involving AA and CH. The Government was permitted to present the noticed 

evidence under Mil. R. Evid. 404(b) “to show intent, plan, motive, knowledge, 

absence of mistake, and consciousness of guilt.” Further, the military judge 

found that the evidence had a “weighty” probative value and the evidence involving AA and CH was “not substantially outweighed by the danger of unfair 

prejudice, confusing the issues, misleading the members, undue delay, wasting 

time, or cumulativeness.” The military judge stated that any prejudice could 

be mitigated with a limiting instruction.

The military judge gave the members the following instructions for using 

evidence of a conspiracy: 

8 The facts are contained within the military judge’s 13 April 2021 ruling. 
United States v. Lake, No. ACM 40168 (f rev)

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If you are convinced by a preponderance of the evidence that a 

conspiracy to commit larceny existed, you may consider evidence 

that [Appellant] may have engaged in a conspiracy with [AA], 

[AP], and [CH] for the limited purpose of its tendency, if any to: 

(1) Prove a plan or design of [Appellant] to commit larceny; (2) 

Prove knowledge on the part of [Appellant] that she used an access device, that is a [bank] account, without the authorization 

of a person whose authorization was required for such use; (3) 

Prove that [Appellant] intended to defraud the Navy Exchange 

Services Command through false pretense; (4) Show [Appellant]’s awareness of her guilt of the offenses charged; (5) Determine whether [Appellant] had a motive to commit the offenses; 

and; (6) Rebut the contention of [Appellant] that her participation in the offenses charged was the result of ignorance or mistake. You may not consider this evidence for any other purpose, 

and you may not conclude from this evidence that the accused is 

a bad person or has general criminal tendencies and that she 

therefore committed the offenses charged. A “preponderance of 

the evidence” means, the allegation is more likely true than not 

true.

2. Law

We review a military judge’s decision to exclude evidence for abuse of discretion. United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (citation 

omitted). An abuse of discretion occurs when the findings of fact are clearly 

erroneous or the conclusions of law are based on an erroneous view of the law. 

United States v. Hollis, 57 M.J. 74, 79 (C.A.A.F. 2002) (citation omitted). We 

thus “review findings of fact under the clearly erroneous standard and conclusions of law de novo.” United States v. Cote, 72 M.J. 41, 44 (C.A.A.F. 2013)

(citation omitted).

“The abuse of discretion standard is a strict one, calling for more than a 

mere difference of opinion. The challenged action must be ‘arbitrary, fanciful, 

clearly unreasonable, or clearly erroneous.’” United States v. White, 69 M.J. 

236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 

(C.A.A.F. 2010)). “[T]he abuse of discretion standard of review recognizes that 

a judge has a range of choices and [a military judge’s decision] will not be reversed so long as the decision remains within that range.” United States v. 

Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citation omitted).

If proffered evidence has any tendency to make a fact of consequence more 

or less probable, then the evidence is relevant. Mil. R. Evid. 401. Absent a rule 

requiring otherwise, relevant evidence is admissible. Mil. R. Evid. 402. Even 

when evidence is relevant, a military judge may prohibit its admission when 
United States v. Lake, No. ACM 40168 (f rev)

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the evidence’s probative value is substantially outweighed by such considerations as the dangers of unfair prejudice, confusing the issues, and wasting time. 

Mil. R. Evid. 403. Military judges have “wide discretion” in applying the Mil. 

R. Evid. 403 balancing test; however, military judges are afforded less deference when they do not explain their analysis on the record, and we give them 

no deference when they do not conduct the analysis at all. United States v. 

Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).

Mil. R. Evid. 404(b)(1) provides that evidence of a crime, wrong, or other 

act by a person is not admissible as evidence of a person’s character in order to 

show the person acted in conformity with that character on a particular occasion and cannot be used to show predisposition toward crime or criminal character. However, such evidence may be admissible for another purpose, including to show, inter alia, motive, intent, plan, absence of mistake, or lack of accident. Mil. R. Evid. 404(b)(2); United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 

2010) (citation omitted). The list of potential purposes in Mil. R. Evid. 404(b)(2) 

“is illustrative, not exhaustive.” United States v. Ferguson, 28 M.J. 104, 108 

(C.M.A. 1989) (footnote omitted).

On the question of admissibility of an appellant’s uncharged misconduct

under Mil. R. Evid. 404(b), we use the following three-part test: (1) Does the 

evidence reasonably support a finding by the factfinder that the appellant committed other crimes, wrongs, or acts? (2) Does the evidence of the other act 

make a fact of consequence to the instant offense more or less probable? (3) Is 

the probative value of the evidence of the other act substantially outweighed 

by the danger of unfair prejudice under Mil. R. Evid. 403? United States v. 

Reynolds, 29 M.J. 105, 109 (C.M.A. 1989) (citations omitted). “If the evidence 

fails to meet any one of these three standards, it is inadmissible.” Id.

3. Analysis

We begin our analysis by noting that neither party disputes the military 

judge’s findings of fact, and we find that the military judge’s findings of fact 

are supported by the record. Our review of the military judge’s ruling also supports the conclusion that the military judge used the correct law and legal 

framework to analyze the issues. Turning our attention to the question of 

whether the military judge’s conclusions of law were based on an erroneous 

application of the law, we find the military judge’s conclusions of law were not 

arbitrary, fanciful, clearly unreasonable, or clearly erroneous.

Appellant argues on appeal that the military judge incorrectly analyzed the 

proffered evidence under the Reynolds test. Specifically, Appellant takes issue 

with the military judge’s conclusions on the first and third prongs which she 

contends were not supported by the facts or evidence. 
United States v. Lake, No. ACM 40168 (f rev)

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The first prong of the Reynolds test simply requires the proponent to offer 

some evidence that the alleged prior acts actually occurred. Here, we find sufficient evidence in the record to support the conclusion that Appellant was engaged in a conspiracy with AA and CH to commit both fraud and larceny. This 

conclusion is supported in the record by both documentary evidence, and more 

specifically, through the direct testimony of Mr. BB. 

Appellant does not contest the military judge’s conclusions on the second 

prong. We find the military judge’s conclusion on the second prong to be supported by the record. Here, the proffered evidence speaks directly on the issue 

of Appellant’s knowledge, intent, lack of mistake, and consciousness of guilt. 

Finally, as to the third prong, we again find the military judge’s conclusion 

that the probative value of the evidence was not substantially outweighed by 

the danger of unfair prejudice under Mil. R. Evid. 403 to be well reasoned. As 

explained above, the military judge found the evidence to be highly probative

and found nothing particularly inflammatory about Appellant’s collusions with 

her co-actors. Contrary to Appellant’s assertion, we do not find the evidence to 

be “prejudicial” or “inflammatory.” Here, the evidence was simply the case facts 

necessary to give the factfinder a full understanding of what transpired. We 

also find admission of this evidence did not create a risk that the members 

would decide the case on an emotional or other improper basis, especially in 

light of the limiting instruction the military judge provided to the members on 

this evidence. See United States v. Tyndale, 56 M.J. 209, 216 (C.A.A.F. 2001) 

(“Court members are presumed to follow the military judge’s instructions.” (citing United States v. Holt, 33 M.J. 400, 408 (C.M.A. 1991)). The military judge 

did not abuse his discretion in finding the evidence met the third prong. 

We conclude that the military judge did not abuse his discretion in allowing 

the proffered evidence in this case. The military judge’s findings of fact were 

supported by the record and therefore were not clearly erroneous. Furthermore, we find the military judge applied the correct law and placed his findings 

and conclusions in writing. Finally, recognizing that the military judge had a 

range of choices, we find his decision to allow evidence tending to show Appellant was engaged in a conspiracy was within the range of reasonable choices 

and therefore not “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” White, 69 M.J. at 239. 

B. Legal and Factual Sufficiency

On appeal, Appellant contends her convictions for fraudulent use of a credit 

card, debit card, or other access device, and larceny are legally and factually 

insufficient. Specifically, Appellant argues the Government failed to prove the 

specific intent element for both sets of offenses. Appellant requests that we set 

aside the findings and sentence. We disagree and find no relief warranted.
United States v. Lake, No. ACM 40168 (f rev)

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1. Additional Background

At trial Appellant testified in her own defense. During her testimony she 

explained that she was dating AA in May 2019 and they had a child together. 

She stated AA told her that he knew someone, AP, who would pay her to go to 

the NEX and purchase things. She initially ignored the suggestion from AA, 

but later reconsidered after she was approached by CH, who also stated his 

friend AP would pay her to purchase gift cards and computers from the NEX. 

Subsequently, Appellant asked AA to arrange a meeting between her and AP. 

On 21 May 2019, Appellant met with AP in a parking lot near Little Creek 

Naval Base. During the meeting, AP asked Appellant to purchase items for 

him at the NEX with prepaid debit cards. The items she purchased that day 

included gift cards, video game consoles, and computer products. After she 

made the purchases, she gave the merchandise to AP, and AP gave her approximately $1,500.00 in gift cards for her efforts. According to Appellant, AP told 

her she would receive a portion of the sale price if she could help sell the computer products. Appellant then took the gift cards to a grocery store, converted 

the gift cards into a money order, and deposited the money order funds into 

her bank account. 

Four days later Appellant met with AP and again made purchases—mainly 

gift cards and electronics—at the NEX with prepaid debit cards. Appellant remembered AA was also with her this time. She explained that she would use 

the debit cards until they were declined, and then she would use another of the 

cards that AP had given her. In Appellant’s words at trial:

Okay. So for example, on May 25th I would go in there, I would 

purchase the Apple product. After purchasing the Apple product, 

if I needed to use both cards, and one of them declined I would 

just keep track of which one declined, and then I would return 

to the car, give [AP] the products and I would tell him, “Okay. 

This card declined.” So he would take the card that declined. And 

I could continue to use the card that did not decline. And then 

sometimes he would give me another card and say, “Here. Use 

this one, instead.” He’d give me another card, and then asked me 

do I want to go in there and purchase these items now. And each 

time I went in and purchased something I would get paid for it. 

So I didn’t mind.

Appellant confirmed she was paid “a thousand dollars” in gift cards by AP on 

25 May 2019 and 14 June 2019, which she exchanged for money orders and

deposited into her bank account. 
United States v. Lake, No. ACM 40168 (f rev)

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Appellant testified she never thought she was doing anything wrong and

she had no idea the prepaid debit cards which she used to make the NEX purchases had stolen credit card accounts associated with them. On cross-examination by trial counsel, Appellant explained:

Q. And you told us you didn’t think this was suspicious what you 

were doing, correct? 

A. Yes, sir. 

Q. So when you meet a guy that you don’t know for the first time 

in a parking lot at Little Creek, you don’t think that’s suspicious, 

correct? 

A. No, sir, since it was someone that I was in a relationship with 

introducing me to him and like -- I don’t know the right term but 

like, based off of [AA] asking me and his whatever he had with 

[AP], that’s why I was just like okay, you’re a friend of my significant other’s -- or you’re a person he knows. So I’m fine with 

meeting you. 

Q. So you didn’t think it was suspicious when you’re meeting a 

guy you don’t know, in a parking lot, down at Little Creek, to go 

make some purchases on base? 

A. No. And he also couldn’t get on base, so it’s not like we could 

have met at the parking lot in the NEX or anything like that. So 

that’s why it was in the parking lot across the street from Little 

Creek, because he couldn’t get on the base. 

Q. And you didn’t think it was suspicious when this guy you don’t 

know asks you to go and buy $1,400[.00] worth of gift cards and 

[e]lectronics at [a store], on May 21st, correct? 

A. Yes, sir. 

Q. And you didn’t think it was suspicious when four days later 

he asked you to go and buy -- we’ll call it $3,000[.00] worth of gift 

cards and -- we’ll start -- $3,000[.00] gift cards on May 25th, correct?

A. Yes, sir. 

Q. Yes, you thought it was suspicious or no, you didn’t think it 

was suspicious? 

A. No, I didn’t think it was suspicious. 
United States v. Lake, No. ACM 40168 (f rev)

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Q. Okay. You didn’t think it was suspicious when four days later, 

on May 29th, he asked you to go back to the exact same store 

and buy a $1,100[.00] iPad. Correct? 

A. Correct. 

Q. You didn’t think it was suspicious, on June 14th, when he 

asked you to go to the [NEX] and purchase $4,000[.00] worth of 

gift cards, correct? 

A. Correct. 

Q. You didn’t [think] it was suspicious when he asked you to buy 

a $2,639[.00] Apple Mac Pro [sic] on that same day, correct? 

A. Correct. 

Q. And you didn’t think it was suspicious when, in the course of 

all of that, he’s giving you thousands of dollars for making purchases, correct?

A. Correct.

2. Law

We review issues of legal and factual sufficiency de novo. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assessment of legal and factual sufficiency is limited to the evidence produced at 

trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) 

(citing United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)), rev. denied, 82 

M.J. 312 (C.A.A.F. 2022).

“The test for legal sufficiency is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” United 

States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States 

v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “[I]n resolving questions of legal 

sufficiency, we are bound to draw every reasonable inference from the evidence 

of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 

(C.A.A.F. 2001) (citations omitted). As a result, the “standard for legal sufficiency involves a very low threshold to sustain a conviction.” United States v. 

King, 78 M.J. 218, 221 (C.A.A.F. 2019) (internal quotation marks and citation 

omitted). The test for legal sufficiency “gives full play to the responsibility of 

the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” 

Unites States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1973)).
United States v. Lake, No. ACM 40168 (f rev)

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“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,’ [this] court is ‘convinced of the [appellant]’s guilt beyond a reasonable doubt.’” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting 

United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this 

unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying 

‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our] 

own independent determination as to whether the evidence constitutes proof 

of each required element beyond a reasonable doubt.’” United States v. Wheeler, 

76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting

Washington, 57 M.J. at 399) aff’d, 77 M.J. 289 (C.A.A.F. 2018). “The term reasonable doubt, however, does not mean that the evidence must be free from 

conflict.” Wheeler, 76 M.J. at 568 (citing United States v. Lips, 22 M.J. 679, 684 

(A.F.C.M.R. 1986)). This court’s review of the factual sufficiency of evidence 

for findings is limited to the evidence admitted at trial. See Article 66(d), 

UCMJ, 10 U.S.C. § 866(d); United States v. Beatty, 64 M.J. 456, 458 

(C.A.A.F. 2007) (citations omitted).

Appellant was convicted of 14 specifications of fraudulent use of a credit 

card, debit card, or other access device, in violation of Article 121a, UCMJ, 

which required the Government to prove three elements beyond a reasonable 

doubt: (1) Appellant knowingly used an access device “without the authorization of a person whose authorization was required for each use;” (2) “the use 

was to obtain money, property, services, or anything else of value;” and (3) “the 

use by [Appellant] was with the intent to defraud.” See Manual for CourtsMartial, United States (2019 ed.) (MCM), pt. IV, ¶ 65.b.(1), (3)–(5).

Article 121a, UCMJ, requires specific intent to defraud which is defined as 

“an intent to obtain, through a misrepresentation, an article or thing of value 

and to apply it to one’s own use and benefit or to the use and benefit of another, 

either permanently or temporarily.” MCM, pt. IV ¶ 70.c.(14). “[I]ntent to defraud may be proved by circumstantial evidence.” MCM, pt. IV ¶ 65.c.(3).

Access device as applied to Article 121a, UCMJ, is defined as:

any card, plate, code, account number, electronic serial number, 

mobile identification number, personal identification number, or 

other telecommunications service, equipment, or instrument 

identifier, or other means of account access that can be used, 

alone or in conjunction with another access device, to obtain 

money, goods, services, or any other thing of value, or that can 

be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).
United States v. Lake, No. ACM 40168 (f rev)

14

18 U.S.C. § 1029.9

Appellant was also convicted of two specifications of larceny, in violation of 

Article 121, UCMJ, which required the Government to prove four elements beyond a reasonable doubt: (1) “[Appellant] wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;”

(2) “the property belonged to a certain person;” (3) “the property was of a certain value, or of some value; and” (4) “the taking, obtaining, or withholding by 

[Appellant] was with the intent permanently to deprive or defraud another 

person of the use and benefit of the property or permanently to appropriate the 

property for the use of the accused or any other person other than the owner.”

MCM, pt. IV, ¶ 64.b.(1)(a)–(d). Article 121, UCMJ, states: 

The offense of larceny requires that the taking, obtaining, or 

withholding by the thief be accompanied by an intent permanently to deprive or defraud another of the use and benefit of 

property or permanently to appropriate the property to the 

thief’s own use or the use of any person other than the owner.

MCM, pt. IV, ¶ 64.c.(1)(f)(i). The MCM goes on to explain: “An intent to steal

may be proved by circumstantial evidence.” MCM, pt. IV ¶ 64.c.(1)(f)(ii).

“[I]t is a defense to an offense that the accused held, as a result of ignorance 

or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty 

of the offense.” R.C.M. 916(j)(1). “If the ignorance or mistake goes to an element 

requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the 

accused.” Id. It is the Government’s burden to prove beyond a reasonable doubt

that the defense did not exist. R.C.M. 916(b)(1).

3. Analysis

a. Fraudulent Use of an Access Device

As to Appellant’s fraudulent use of an access device, such as a debit card or 

credit card, we find the Government presented sufficient circumstantial evidence for a rational trier of fact to determine that Appellant possessed the required intent to defraud. In assessing legal sufficiency, we are limited to the 

evidence produced at trial and required to consider it in the light most favorable to the Prosecution. We note the bulk of the evidence produced at trial was 

free from conflict and included Appellant’s own testimony.

9 Article 121a, UCMJ, states that “the term ‘access device’ has the meaning given that 

term in section 1029 of title 18.” MCM, pt. IV ¶ 65.a.(b).
United States v. Lake, No. ACM 40168 (f rev)

15

Appellant essentially asserts that no rational trier of fact could conclude 

she intended to defraud because her self-serving testimony indicates otherwise. We reject this assertion. The evidence presented at trial established Appellant used prepaid debit cards containing stolen credit card information—

namely stolen account numbers from 11 separate individuals that she did not 

know—and misrepresented the stolen credit card information as legitimate 

prepaid debit cards when she swiped the cards at the NEX registers. Appellant 

then misrepresented the nature of the access device, using the fraudulent debit 

cards to obtain gift cards and other merchandise worth over $16,000.00. The 

evidence also showed she benefitted from these transactions, in that she was 

compensated in gift cards she fraudulently purchased. Considering the facts in 

the light most favorable to the Government, we find a rational trier of fact 

could have found that Appellant’s actions demonstrated her “intent to obtain, 

through a misrepresentation” gift cards and other merchandise and “to apply 

it to [her] own use and benefit or to the use and benefit of another, either permanently or temporarily.” MCM, pt. IV, ¶ 70.c.(14).

In her appeal, as she did at trial, Appellant raises seven arguments and 

generally contends that certain facts were overlooked by the members at her 

trial. She argues these facts negate any criminal intent she had to defraud the 

11 individuals. The majority of her arguments stem from her own testimony at 

trial, where she stated she had a mistaken belief that the debit cards were 

legitimate, and she did not believe she was doing anything illegal. We need not 

discuss each argument individually as we recognize the standard for legal sufficiency “gives full play to the responsibility of the trier of fact to fairly resolve 

conflicts in testimony, to weigh the evidence and to draw reasonable inferences

from the basic facts to ultimate facts.” Oliver, 70 M.J. at 68 (internal quotation 

marks omitted) (quoting Jackson, 443 U.S. at 319). Here, the members were 

free to discount and disbelieve Appellant’s testimony in reaching their ultimate 

findings. We find that there was sufficient circumstantial evidence presented 

to reach the conclusion that Appellant knew her actions were illegal and therefore possessed the required intent to defraud. We further find the same circumstantial evidence was sufficient for the Government to meet its burden to 

prove that Appellant did not have a mistake of fact as to her criminal behavior.

Appellant also contends that Specification 5 of Charge I (alleging fraudulent use of an access device) is legally insufficient because KT, the named victim, did not testify. We disagree. The Government presented a business record 

of the disputed charge at trial that sufficiently established KT did not authorize the transaction in question. Furthermore, we do not find Appellant’s right 

to confrontation was violated because the evidence presented by the Government was non-testimonial as it was not made in anticipation of trial. See 

United States v. Goldstein, 442 F.3d 777, 785 (2d Cir. 2006) (explaining documentary evidence of a disputed charge is non-testimonial because it was not 
United States v. Lake, No. ACM 40168 (f rev)

16

made in anticipation of trial and, therefore, not subject to the confrontation

clause).

b. Larceny 

As to Appellant’s larceny convictions, we find the Government presented 

sufficient circumstantial evidence for a rational trier of fact to determine Appellant possessed the required specific intent. Having already discussed Appellant’s intent to defraud, we focus our analysis here on Appellant’s contention the Government failed to prove that she had the specific intent to deprive 

the NEX of its use of the property she purchased. Again, we disagree with Appellant’s contention. 

Here the Government presented uncontested evidence that Appellant took 

electronics and gift cards from the NEX by using stolen credit card information 

on what appeared to be legitimate gift cards; moreover, she did not return the 

items she purchased, but instead deposited the proceeds into her bank account

through a multi-step process of converting some of the stolen merchandise into 

money orders. Additionally, she gave the remaining merchandise to AP, who 

she understood by her own admission was not going to return the items to the 

NEX. The evidence also established that the NEX suffered pecuniary harm as 

a result of the lost merchandise purchased by Appellant since the NEX was

responsible for refunding the individuals who had their credit card information 

stolen as part of Appellant’s fraudulent purchases at the NEX.

We conclude that, viewing the evidence introduced at trial in the light most 

favorable to the Prosecution, a rational trier of fact could have found the essential elements of the crimes of fraudulent use of a credit card, debit card, or 

access device and larceny beyond a reasonable doubt. See Robinson, 77 M.J. at 

297−98. Furthermore, after weighing all the evidence in the record of trial and

making allowances for not having personally observed the witnesses, we are 

ourselves convinced of Appellant’s guilt beyond a reasonable doubt. See Reed,

54 M.J. at 41.

C. Post-Trial Delay

Appellant contends she is entitled to relief for an unreasonable post-trial 

delay. Specifically, Appellant argues that 643 days had elapsed between the 

announcement of sentence and the date the completed record of trial was docketed with this court after our remand. Appellant asks we grant sentencing relief and only approve so much of the sentence that calls for reduction to the 

grade of E-2 and an $8,000.00 fine. We disagree and find no relief is warranted.

1. Additional Background

Appellant was sentenced on 21 April 2021. Appellant’s case was docketed 

with this court on 17 September 2021. Between her sentence and docketing 
United States v. Lake, No. ACM 40168 (f rev)

17

with this court, 149 days elapsed. After this case was docketed, Appellant requested 13 enlargements of time, and all but 3 were opposed by the Government. Appellate defense counsel notified appellate government counsel in midSeptember 2022, approximately 363 days since docketing, that he did not possess the software to watch the NEX surveillance videos that were identified in 

the record of trial as prosecution exhibits. The Government tried to assist with 

a solution. Subsequently, on 4 October 2022, appellate defense counsel notified 

this court that he was unable to view 13 prosecution exhibits with the software 

available to him on a government computer, and 382 days had elapsed since 

docketing. As a result, this court remanded this case for correction on 7 December 2022, 446 days since docketing. 

Technical Sergeant (TSgt) CW, the noncommissioned officer in charge of 

the military justice section of the office of the staff judge advocate at Joint Base 

Langley-Eustis, Virginia, provided a declaration explaining the steps his office 

took to remedy the unviewable prosecution exhibits after the case was remanded. The declaration explains that on 13 December 2022, his office was 

notified that the 13 prosecution exhibits needed to be converted to a readable 

file format. Two paralegals from the legal office determined the exhibits on the 

original discs were unreadable on Air Force computers. On 14 December 2022, 

the legal office engaged with communications experts on base, but they were 

unable to read the files using software they possessed. TSgt CW contacted the 

NEX the same day and on 19 December 2022, met with NEX personnel to use 

the NEX’s standalone computer which was installed with the software necessary to view the exhibits.

On 19 December 2022 from 0900 hours to 2330 hours, TSgt CW used the 

NEX’s computer to screen record the exhibits and he sent copies of the videos 

to the trial defense counsel of record for review on 20 December 2022. The same 

day, trial defense counsel stated he reviewed the exhibits and had no objections. The court reporter prepared the certificate of correction on 27 December 

2022. When the court reporter prepared the certificate of correction, she added 

signature blocks for the military judge, circuit trial counsel, trial defense counsel, and Appellant. However, in her email to the military judge she pointed out 

only the court reporter’s and military judge’s signatures were necessary. Another paralegal sent circuit trial counsel the certificate of correction on 27 December 2022, and circuit trial counsel returned it on 28 December 2022. 

TSgt CW sent the certificate of correction to trial defense counsel on 28 December 2022. Trial defense counsel returned the certificate of correction to the legal 

office on 4 January 2023, but he explained he could not reach Appellant for her 

review and signature. On 24 January 2023, this case was re-docketed with our 

court, 48 days after remand and 494 days after initial docketing. From the initial docketing date of 17 September 2021 over 18 months had elapsed.
United States v. Lake, No. ACM 40168 (f rev)

18

2. Law

“This court reviews de novo whether an appellant’s due process rights are 

violated because of post-trial delay.” United States v. Livak, 80 M.J. 631, 633 

(A.F. Ct. Crim. App. 2020) (citing United States v. Moreno, 63 M.J. 129, 135 

(C.A.A.F. 2006)). 

Moreno outlined thresholds for facially unreasonable delay during three 

portions of the post-trial and appellate process. 63 M.J at 141–43. Moreno established a presumption of facially unreasonable delay where: (1) the convening authority did not take action within 120 days of the completion of trial, (2) 

the record was not docketed with the Court of Criminal Appeals within 30 days 

of the convening authority’s action, or (3) the Court of Criminal Appeals did 

not render a decision within 18 months of docketing. Id. at 142.

In Livak, this court explained that “[d]epending on the length and complexity of the record involved, we can envision cases in which the court reporter is 

still transcribing the proceedings after the convening authority’s decision.” 80 

M.J. at 633. “As such, the prior 30-day period from action to docketing, which 

primarily involved transmitting an already-completed [record of trial] to the 

Court of Criminal Appeals, now overlays substantive actions such as completing the preparation of the record.” Id. Therefore, “the specific requirement in 

Moreno which called for docketing to occur within 30 days of action no longer 

helps us determine an unreasonable delay under the new procedural rules.” 

Id.

This court ultimately decided, consistent with the United States Court of 

Appeals for the Armed Forces (CAAF) threshold for facially unreasonable delay 

established by Moreno, we can apply the aggregate Moreno standard of 150 

days from the day an appellant was sentenced to docketing with this court, to 

determine whether an appellant’s case has been subject to a facially unreasonable delay. Id. Livak concluded the “150-day threshold appropriately protects 

an appellant’s due process right to timely post-trial and appellate review and 

is consistent with our superior court’s holding in Moreno.” Id.

If there is facially unreasonable post-trial delay, we apply a four-factor test 

to determine what relief, if any, an appellant should receive: (1) the length of 

the delay; (2) the reasons for the delay; (3) the appellant’s assertion of her right 

to a timely review; and (4) prejudice to the appellant. Moreno, 63 M.J. at 138–

40 (citations omitted).

The CAAF identified three types of cognizable prejudice for purposes of an 

appellant’s due process right to timely post-trial review: (1) oppressive incarceration; (2) “particularized” anxiety and concern “that is distinguishable from 

the normal anxiety experienced by prisoners awaiting an appellate decision;” 

and (3) impairment of the appellant’s grounds for appeal or ability to present 
United States v. Lake, No. ACM 40168 (f rev)

19

a defense at a rehearing. Id. (citations omitted). Where there is no qualifying 

prejudice from the delay, there is no due process violation unless the delay is 

so egregious as to “adversely affect the public’s perception of the fairness and 

integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 

362 (C.A.A.F. 2006).

Even in the absence of a due process violation, this court still considers 

whether relief for excessive post-trial delay is warranted consistent with this 

court’s authority under Article 66(d), UCMJ. See United States v. Tardif, 57 

M.J. 219, 225 (C.A.A.F. 2002); United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. 

Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).

This court considers the following factors relevant in considering whether 

Tardif relief is appropriate: 

(1) How long did the delay exceed the standards set forth in

[Moreno]; (2) What reasons, if any, has the [G]overnment set 

forth for the delay? Is there any evidence of bad faith or gross 

indifference to the overall post-trial processing of this case?; (3)

Keeping in mind that our goal under Tardif is not to analyze for 

prejudice, is there nonetheless some evidence of harm (either to 

the appellant or institutionally) caused by the delay?; (4) Has 

the delay lessened the disciplinary effect of any particular aspect 

of the sentence, and is relief consistent with the dual goals of 

justice and good order and discipline?; (5) Is there any evidence 

of institutional neglect concerning timely post-trial processing, 

either across the service or at a particular installation?; and (6)

Given the passage of time, can this court provide meaningful relief in this particular situation?

Gay, 74 M.J. at 744. 

3. Analysis

We decline, as Appellant suggests, to find that over 600 days had elapsed 

between announcement of the sentence and docketing of her case with this 

court. Here, the record establishes that Appellant’s case was docketed at 149 

days, which is one day under the 150-day Livak threshold. Therefore, we conclude that there was not a facially unreasonable delay in post-trial processing.

That said, we recognize that as of today’s date, over 18 months have elapsed 

since Appellant’s record of trial was originally docketed with this court. Assuming for purposes of our analysis that the 7 December 2022 remand and 24 

January 2023 re-docketing of the record did not “reset” the Moreno timeline, 

there is a facially unreasonable delay in the appellate proceedings. Accordingly, we have considered the Barker factors and find no violation of Appel-
United States v. Lake, No. ACM 40168 (f rev)

20

lant’s due process rights. Appellant has not specifically alleged cognizable prejudice, and we find none. In particular, Appellant was not sentenced to any 

confinement, has not expressed any particularized anxiety or concerns, and we 

have found no material prejudice to Appellant’s substantial rights and affirm 

her sentence. 

Furthermore, we find the delays involved in Appellant’s case have not been 

so egregious as to adversely affect the perception of the military justice system. 

Other than a relatively brief remand of approximately six weeks to ensure a 

complete record, the delays are largely the result of Appellant’s requests for 

enlargements of time. Accordingly, we find no violation of Appellant’s due process rights. Likewise, recognizing our authority under Article 66(d), UCMJ, we 

have also considered whether relief for excessive post-trial delay is appropriate 

in this case even in the absence of a due process violation. See Tardif, 57 M.J. 

at 225. After considering the factors enumerated in Gay, 74 M.J. at 742, we 

conclude no such relief is warranted.

III. CONCLUSION

The findings and sentence as entered are correct in law and fact, and no 

error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court