UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39618

________________________

UNITED STATES

Appellee

v.

James S. SILVERNAIL, Jr.

Technical Sergeant (E-6), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 25 August 20211

________________________

Military Judge: Mark F. Rosenow.

Approved sentence: Confinement for 2 years, forfeiture of all pay and 

allowances for 24 months, and reduction to E-1. Sentence adjudged 15 

September 2018 by GCM convened at Joint Base Elmendorf-Richardson, 

Alaska. 

For Appellant: Robert Feldmeier, Esquire (argued); Major Mark J. 

Schwartz, USAF.

For Appellee: Major Peter F. Kellett, USAF (argued); Colonel Shaun S. 

Speranza, USAF; Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel Brian C. Mason, USAF; Major Rachel S. Lyons, USAF; Mary 

Ellen Payne, Esquire; Kelsey MacLeod (legal intern).

2

Before MINK, LEWIS, and ANNEXSTAD, Appellate Military Judges.

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

Judge LEWIS and Judge ANNEXSTAD joined.

________________________

 

1 We heard oral argument in this case on 21 July 2020. Judge D. Johnson sat for oral 

argument but did not participate in or vote on this opinion due to her retirement from 

the United States Air Force.

2 Ms. MacLeod was supervised by an attorney admitted to practice before this court.
United States v. Silvernail, No. ACM 39618

2

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

MINK, Senior Judge:

A general court-martial comprised of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of dereliction of 

duty, in violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 892 (Charge I); four specifications of assault consummated by a battery and two specifications of aggravated assault, in violation of Article 128, 

UCMJ, 10 U.S.C. § 928 (Charge III); and one specification of unlawful possession of a firearm as assimilated under 18 U.S.C. § 922(g)(9), in violation of 

Article 134, UCMJ, 10 U.S.C. § 934 (Charge IV).

3,4 The court-martial sentenced 

Appellant to confinement for two years, forfeiture of all pay and allowances,5

and reduction to the grade of E-1. 

 

3 All references in this opinion to the UCMJ, Rules for Courts-Martial (R.C.M.), and 

Mil. R. Evid. are to the Manual for Courts-Martial, United States (2016 ed.). 

4 One specification of assault consummated by a battery of which Appellant was found 

guilty was originally charged as a specification of aggravated assault in violation of 

Article 128, UCMJ. The court members found Appellant guilty of the lesser-included 

offense. In addition, the military judge directed a finding of not guilty to one specification of assault consummated by a battery, in violation of Article 128, UCMJ, after trial 

defense counsel filed a motion for a finding of not guilty in accordance with R.C.M. 917. 

Appellant also pleaded not guilty to two specifications of making a false official statement in violation of Article 107, UCMJ, 10 U.S.C. § 907 (Charge II). The military judge 

directed a finding of not guilty as to certain language in one of the Article 107, UCMJ, 

specifications after trial defense counsel filed a motion for a finding of not guilty in 

accordance with R.C.M. 917. The court members found Appellant not guilty of the remainder of that specification and not guilty of the second specification of making a 

false official statement. 

5 Appellant has not raised as error the fact that the court-martial did not specify a time 

limit for the adjudged forfeitures of all pay and allowances. We note that for any period 

of time Appellant remained in a duty status, but was not confined, the maximum 

amount of allowed forfeitures was two-thirds pay per month. See United States v. York, 

53 M.J. 553, 554 (A.F. Ct. Crim. App. 2000). However, where a sentence to forfeiture 

of all pay and allowances is adjudged such sentence “shall run until such time as the 

servicemember is discharged or returns to a duty status, whichever comes first, unless 

the sentencing authority expressly provides for partial forfeitures post-confinement.” 

United States v. Stewart, 62 M.J. 291, 293–94 (C.A.A.F. 2006).
United States v. Silvernail, No. ACM 39618

3

The convening authority approved the sentence as adjudged except as to 

the forfeiture of all pay and allowances. Upon taking action, the convening authority suspended the forfeiture of pay and allowances for three months, at 

which time that portion of the forfeitures would be remitted and the collection 

of the “remaining” 21 months of forfeitures would begin.

6 The convening authority also deferred all of the adjudged and mandatory forfeitures until the 

date of action, and waived the mandatory forfeiture of Appellant’s pay and allowances for the benefit of Appellant’s dependent child for a period of six 

months, release from confinement, or expiration of term of service, whichever 

was sooner, with the waiver commencing 14 days after announcement of sentence on 29 September 2018.

Appellant raises eight issues on appeal, which we reordered in this opinion: 

(1) whether the evidence is legally and factually sufficient to sustain Appellant’s convictions as to Charges I, III, and IV; (2) whether the military judge 

erred by denying the defense motion to sever; (3) whether Charge I was barred 

by the statute of limitations; (4) whether Charges I and IV are constitutional 

as applied to Appellant;7(5) whether the military judge abused his discretion 

when he refused to grant a mistrial; (6) whether Appellant received ineffective 

assistance of counsel from his civilian defense counsel when he failed to object 

to the testimony of the Government’s expert witness; (7) whether the military 

judge abused his discretion when he refused to allow the defense expert to testify as an expert witness; and (8) whether the military judge erred by denying 

the defense motion to compel discovery of social media communications between two of the witnesses in the case.8 We also considered whether Appellant 

is entitled to relief for facially unreasonable appellate delay. During our review, we noted that the convening authority’s action omitted language ordering Appellant’s sentence executed. We find no error that materially prejudiced 

Appellant’s substantial rights, and we affirm the findings and the sentence.

I. BACKGROUND

Appellant was stationed at Little Rock Air Force Base (AFB), Arkansas, 

when he first met DS, a civilian woman, in 2009. They married later that same 

year and their daughter was born in 2010. Due to permanent change of station 

 

6 Appellant raised no issue regarding the convening authority’s approval of the forfeiture of pay and allowances, and we find no prejudicial error.

7 We heard oral argument on issues (3) and (4).

8 Appellant personally raised issues (6), (7), and (8) pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982). We have carefully considered these issues and 

find they warrant neither further discussion nor relief. See United States v. Matias, 25 

M.J. 356, 361 (C.M.A. 1987).
United States v. Silvernail, No. ACM 39618

4

(PCS) orders, Appellant, DS, and their daughter moved to Joint Base Elmendorf-Richardson (JBER), Alaska, in May 2013. 

While living in Alaska, DS became friends with LM, a retired military 

member, who was married to PM, a civilian. In 2017, PM contacted one of his 

friends who worked as a detective for the security forces (SF) investigations 

office at JBER and reported that LM had information about alleged acts of 

domestic violence by Appellant against DS. As a result, SF initiated an investigation of Appellant. While performing a background check on Appellant, one

of the SF investigators discovered Appellant had been convicted of domestic 

battery in Arkansas in 2008. Further investigation discovered Appellant had 

been convicted of domestic battery in the third degree, a Class A misdemeanor, 

in violation of Section 5-26.305 of the Arkansas Code, against a former girlfriend, EA.

II. DISCUSSION

A. Legal and Factual Sufficiency

Appellant contends that his convictions on the charges and specifications 

are both legally and factually insufficient.9 With respect to the dereliction of 

duty offense (Charge I and its specification), Appellant argues the conviction 

is factually insufficient because the evidence shows he disclosed the fact that 

he had been convicted in an Arkansas state court of a qualifying domestic violence offense. Similarly, for the Article 134, UCMJ, offense (Charge IV and its 

specification), Appellant argues that the Government failed to prove that he 

possessed any of the firearms “in or affecting” interstate commerce as alleged. 

With respect to the specifications Appellant was convicted of relating to the 

various domestic violence offenses against DS (Specifications 1 through 4, 7, 

and 8 of Charge III), Appellant’s argument is two-fold: (1) DS fabricated the 

allegations of domestic violence by Appellant to cover up her inappropriate relationship with Detective DB, and (2) no evidence directly corroborates DS’s 

testimony. We disagree with Appellant’s contentions and find his convictions 

both legally and factually sufficient. 

1. Law

We only affirm findings of guilty that are correct in law and fact and, “on 

the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 

U.S.C. § 866(c). 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 

 

9 For the most part, Appellant’s specific arguments address factual insufficiency. Our 

later analysis will address both legal and factual sufficiency.
United States v. Silvernail, No. ACM 39618

5

produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).

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

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

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

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

v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, however, does not mean that the evidence must be free from conflict.” United States 

v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. 

Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018). 

Circumstantial evidence may suffice. See United States v. Kearns, 73 M.J. 177, 

182 (C.A.A.F. 2014) (citing Brooks v. United States, 309 F.2d 580, 583 (10th 

Cir. 1962)). “[I]n resolving questions of legal sufficiency, we are bound to draw 

every reasonable inference from the evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). As a result, “[t]he standard for legal sufficiency involves a very low threshold to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 

2019) (alteration in original) (citation omitted).

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 [appellant]’s guilt beyond a 

reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In 

conducting this unique appellate role, we take ‘a fresh, impartial look at the 

evidence,’ applying ‘neither a presumption of innocence nor a presumption of 

guilt’ to ‘make [our] own independent determination as to whether the evidence 

constitutes proof of each required element beyond a reasonable doubt.’” 

Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J. 

at 399).

The Gun Control Act of 1968 established a ban on firearms possession for 

certain individuals including persons convicted of a crime punishable by imprisonment for a term exceeding one year. See Pub. L. 90-618 § 102, 82 Stat. 

1213, 1220 (22 Oct. 1968); 18 U.S.C. § 922(g)(1). In 1996, the 104th Congress 

enacted the “Gun Ban for Individuals Convicted of a Misdemeanor Crime of 

Domestic Violence,” which bans access to firearms by persons convicted of a 

misdemeanor crime of domestic violence. See Omnibus Consolidated Appropriations Act of 1997, Pub. L. 104-208, § 658, 10 Stat. 3009-37 (30 Sep. 1996). 

Provisions of the Domestic Violence Offender Gun Ban, enumerated in 18 

U.S.C § 922(g)(9) and known as the “Lautenberg Amendment,” provide, in pertinent part, that “it shall be unlawful for any person . . . who has been convicted 

in any court of a misdemeanor crime of domestic violence, to ship or transport 

in interstate or foreign commerce, or possess in or affecting commerce, any 
United States v. Silvernail, No. ACM 39618

6

firearm or ammunition . . . .” The Department of Defense imposes an “affirmative, continuing obligation” upon servicemembers “to inform commanders or 

supervisors if they have, or later obtain, a qualifying conviction.” See Department of Defense Instruction (DoDI) 6400.06, Domestic Abuse Involving DoD 

Military and Certain Affiliated Personnel, ¶ 6.1.4.5.1.1 (21 Aug. 2007, Change 

4 dtd 26 May 2017). “For purposes of this instruction . . . the term ‘qualifying 

conviction’ applies to . . . [a] State or Federal conviction for a misdemeanor 

crime of domestic violence.” Id. at ¶ E2.24.

2. Analysis

a. Dereliction of Duty (Charge I)

In order to find Appellant guilty of willful dereliction of duty, as charged, 

the Government was required to prove beyond a reasonable doubt: (1) that Appellant had a certain duty, that is to refrain from possessing Government-issued firearms without informing his supervisors of his qualifying domestic violence conviction under 18 U.S.C. § 922(g)(9); (2) that Appellant knew or reasonably should have known of the duty; (3) that the duty was affirmative and 

continuing; and (4) that within the United States, on divers occasions, between 

on or about 9 January 2013 and on or about 19 September 2017, Appellant was 

willfully derelict in the performance of the duty by willfully possessing Government-issued firearms without informing his supervisors of his qualifying 

domestic violence conviction under 18 U.S.C. § 922(g)(9). See Manual for 

Courts-Martial, United States (MCM), pt. IV, ¶ 16.b.(3). “A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.” MCM, pt. IV, ¶ 16.c.(3)(a). “Actual knowledge 

of duties may be proved by circumstantial evidence. Actual knowledge need 

not be shown if the individual reasonably should have known of the duties.” 

MCM, pt. IV, ¶ 16.c.(3)(b). A “person is derelict in the performance of duties 

when that person willfully or negligently fails to perform that person’s duties 

or when that person performs them in a culpably inefficient manner.” MCM,

pt. IV, ¶ 16.c.(3)(c). “Willful” is defined as “intentional.” MCM, pt. IV, 

¶ 16.c.(3)(c).

The evidence at trial shows that while in Arkansas in 2008, Appellant was 

convicted of domestic battery which qualified as a domestic violence conviction 

under the Lautenberg Amendment. The Department of Defense imposes an 

“affirmative, continuing obligation” upon servicemembers “to inform commanders or supervisors if they have, or later obtain, a qualifying conviction” 

under the Lautenberg Amendment. The Department of Defense (DD) Form 

2760, Qualification to Possess Firearms or Ammunition, “shall be made available for use by those personnel who come forward to report a qualifying conviction in compliance with their obligation to do so.” DoDI 6400.06 at 

¶ 6.1.4.5.1.4.1. Witnesses from Appellant’s current and prior units testified as 
United States v. Silvernail, No. ACM 39618

7

to their knowledge of unit requirements to recertify annually10 the absence of 

any such qualifying conviction. The witnesses identified DD Form 2760 as the 

form on which they accomplished the annual recertification. A blank copy of 

the form was admitted into evidence as a prosecution exhibit. The DD Form 

2760 states that a servicemember has “a continuing obligation” to inform leadership of any qualifying conviction. SSgt JC, one of Appellant’s co-workers at 

JBER, testified that a “Lautenberg Notice” stating the requirement to disclose 

any such qualifying conviction that would prevent the use or possession of a 

firearm was posted on the door of the armory in Appellant’s duty location. Photographs of the “Lautenberg Notice” posted on the armory door were admitted 

into evidence as a prosecution exhibit. 

Appellant handled Government-issued firearms as evidenced by his training record, which documented Appellant completed three separate tasks that 

involved training with weapons at the JBER armory. Appellant asserts that 

he complied with the requirement of disclosing his qualifying conviction as evidenced by the fact that his conviction was referenced in his enlisted performance report that closed out on 6 December 2008 at Little Rock AFB. Appellant asserts that he had no “continuing” duty to report. Even in the absence of 

a DD Form 2760 signed by Appellant during the charged timeframe, the testimony of Appellant’s co-workers indicated that it was a standard operating procedure of the unit to recertify annually the absence of a Lautenberg qualifying 

conviction.

We conclude that Appellant clearly knew or should have known of this 

duty as evidenced by the posted “Lautenberg Notice” on the armory door of his 

duty location. Appellant’s training records further establish that he possessed 

Government-issued firearms during the charged timeframe. Appellant’s training records dated June 2016 reflecting the tasks on which Appellant was 

trained were admitted into evidence as a prosecution exhibit. SSgt JC testified 

that the “aircrew armory” training tasks that Appellant completed included, 

“arms room and clearing barrel attendant responsibilities, weapons issue, load 

clearing receipt, turn-in and formal weapons inspection.” 

After considering the evidence in the light most favorable to the Government, we conclude that a rational factfinder could find all of the elements of 

 

10 DoDI 6400.06, ¶ 6.1.4.5.1, states, “Military personnel shall be periodically informed 

of the Domestic Violence Amendment to the Gun Control Act . . .” and the DoD’s implementing procedures. A witness from Appellant’s unit at Little Rock AFB testified 

that the annual requirement to sign the DD Form 2760 coincided with a firearms training requirement. The witness explained “we have to keep current on M-9s because we 

issue them.” 
United States v. Silvernail, No. ACM 39618

8

willful dereliction of duty beyond a reasonable doubt. Therefore, we find Appellant’s conviction of dereliction of duty legally sufficient. Similarly, after 

weighing all the evidence in the record of trial and making allowances for not 

having personally observed the witnesses, we ourselves are convinced of Appellant’s guilt of willful dereliction of duty beyond a reasonable doubt and 

therefore find his conviction factually sufficient. 

b. Unlawful Possession of a Firearm (Charge IV)

In order to find Appellant guilty of unlawful possession of a firearm to the 

prejudice of good order and discipline, the Government was required to prove 

beyond a reasonable doubt: (1) that within the United States on divers occasions, between on or about 9 January 2013 and on or about 30 November 2017, 

Appellant unlawfully possessed a firearm, in or affecting interstate commerce, 

in violation of 18 U.S.C. § 922(g)(9); and (2) that under the circumstances the 

conduct of Appellant was to the prejudice of good order and discipline in the 

Armed Forces. See MCM, pt. IV, ¶ 60.b.(1); 18 U.S.C. § 922(g)(9). Conduct that 

is prejudicial to good order and discipline is described as those “acts directly 

prejudicial to good order and discipline and not to acts which are prejudicial 

only in a remote or indirect sense. . . . It is confined to cases in which the prejudice is reasonably direct and palpable.” MCM, pt. IV, ¶ 60.c.(2)(a). The military judge defined interstate commerce for the court members as “commerce 

between any place in a state and any place outside of that state; but, such term 

does not include commerce between places within the same state; but, through 

any place outside of that state.” 

As noted above, Appellant was convicted of domestic battery in Arkansas 

in 2008. In accordance with 18 U.S.C. § 922(g)(9), Appellant was prohibited 

from possessing firearms. The evidence produced at trial included two bills of 

sale from Arkansas establishing that Appellant purchased one firearm each 

from two civilian individuals, GP and MH. Both of the civilians testified that 

they sold a firearm to Appellant in Arkansas. Each bill of sale identified the 

firearm by its serial number. DS testified that when moving pursuant to PCS 

orders from Arkansas to Alaska, all of Appellant’s guns were packed and 

shipped to Alaska by the Government-contracted movers. The household goods 

inventory created by the movers reflected 15 firearms owned and shipped by 

Appellant. Two of those firearms were identified by serial number as the firearms Appellant had purchased from GP and MH. One of the sellers, MH, testified that Appellant identified himself as a military member by providing MH 
United States v. Silvernail, No. ACM 39618

9

with his military identification card when purchasing the firearm from him.11

In addition, each bill of sale required the buyer to certify that he had not been 

convicted of misdemeanor domestic battery.

Appellant challenges his conviction on this offense primarily on factual sufficiency grounds. Specifically, Appellant contends that the Government failed 

to prove that he possessed a firearm “in or affecting” interstate commerce. He 

argues that Government-contracted movers took possession of his firearms and 

transported them from Arkansas to Alaska, and that he did not have possession of the firearms during the period when they were moving in interstate 

commerce. We disagree with Appellant’s contention that he did not have possession of the firearms during their transport from Arkansas to Alaska. While 

the firearms may not have been in Appellant’s physical custody during the 

transport,12 the firearms were in his physical possession in both Arkansas and 

Alaska and in his constructive possession during transit. Appellant availed 

himself of a Government-paid move pursuant to PCS orders. Appellant placed 

his firearms in the physical custody of the movers but never relinquished ownership or any expectation that the firearms were his property or that he would 

not retake physical possession in Alaska. In addition, the evidence at trial established that Appellant possessed the firearms on divers occasions, in both 

Arkansas and Alaska.

We conclude that a rational factfinder could find all of the elements of unlawful possession of a firearm in or affecting interstate commerce to the prejudice of good order and discipline by Appellant beyond a reasonable doubt. 

Therefore, we find Appellant’s conviction to be legally sufficient. After carefully 

considering the evidence presented at trial in a light most favorable to the Government, we ourselves are convinced of Appellant’s guilt of unlawful possession 

of a firearm and find his conviction of this offense factually sufficient.

c. Assault Offenses against DS (Charge III)

Appellant was convicted of four specifications of assault consummated by a 

battery and two specifications of aggravated assault.

 

11 This firearm bill of sale lists Appellant’s name and bears his signature but it does 

not include his address, driver’s license number, or phone number. MH explained in 

his testimony that some of these sections of the form were blank because Appellant 

presented his military identification card instead of his driver’s license.

12 See United States v. Dolen, 7 C.M.R. 666, 671 (A.F.B.R. 1952) (applying the ordinary 

legal significance of the term bailment as the delivery of personal property to another 

for a specific purpose and stating after creation of a bailment, the bailor retains title 

to, and ownership of, the property) (citations omitted).
United States v. Silvernail, No. ACM 39618

10

In order to find Appellant guilty of assault consummated by a battery, the 

Government was required to prove beyond a reasonable doubt: (1) that Appellant did bodily harm to a particular person, and (2) that the bodily harm was 

done with unlawful force or violence in the manner alleged. See MCM, pt. IV, 

¶ 54.b.(2). “Bodily harm” is defined as “any offensive touching of another, however slight,” and the act “must be done without legal justification or excuse and 

without the lawful consent of the person affected.” MCM, pt. IV, ¶ 54.c.(1)(a). 

“Unlawful force or violence” is demonstrated if an accused “wrongfully caused 

the contact, in that no legally cognizable reason existed that would excuse or 

justify the contact.” United States v. Bonner, 70 M.J. 1, 3 (C.A.A.F. 2011) (citation omitted).

In order to find Appellant guilty of aggravated assault, the Government 

was required to prove beyond a reasonable doubt: (1) that Appellant did bodily 

harm to a particular person; (2) that Appellant did so with a certain force; (3) 

that the bodily harm was done with unlawful force or violence in the manner 

alleged; and (4) that the force was used in a manner likely to produce death or 

grievous bodily harm. See MCM, pt. IV, ¶ 54.b.(4). “Other means or force” is 

described as including “any means or instrumentality not normally considered 

a weapon. When the natural and probable consequence of a particular use of 

any means or force would be death or grievous bodily harm, it may be inferred 

that the means or force is ‘likely’ to produce that result.” MCM, pt. IV, 

¶ 54.c.(4)(a)(ii). “Grievous bodily harm” is defined as “serious bodily injury.” 

MCM, pt. IV, ¶ 54.c.(4)(a)(iii). 

Appellant was convicted of one specification of assault consummated by a 

battery for unlawfully spitting on DS’s face on divers occasions between 9 January 2013 and 19 August 2017. At trial, DS testified that she was apprehensive 

about the family’s move to Alaska in 2013 because it was far from home for her

and a place where she had no family or friends. She explained that this caused 

tension between her and Appellant after the move as they worked to get the 

family settled in Alaska. Eventually, DS began work as an optician in Eagle 

River, Alaska. DS testified that throughout their marriage, Appellant “spit on 

[her] many, many times.” DS stated Appellant “would just be angry about 

something and . . . as he’s walking away or walking out the door, he would just 

spit in [her] face.” She testified that it was not accidental, and she could not 

estimate the number of times he had done so during the time they had lived in 

Alaska. 

Appellant was convicted of one specification of assault consummated by 

battery and one specification of aggravated assault arising out of an incident 

that occurred on or about 20 July 2013. The assault consummated by a battery

specification alleged that on or about 20 July 2013 in Alaska, Appellant struck 

DS in the stomach with his fist. The aggravated assault specification alleged 
United States v. Silvernail, No. ACM 39618

11

that on that same date and in the same place, Appellant strangled DS’s neck 

with his hands with a force likely to produce death or grievous bodily harm. At 

trial, DS testified about an incident that occurred in the kitchen of their house 

in Anchorage, Alaska, around 20 July 2013. DS stated that following a “heated” 

argument between her and Appellant, Appellant “punched [her] a few times in 

the stomach and choked [her] twice.” She described doubling “over a bit in 

pain.” She also described the “choking” as “[she] couldn’t breathe and he knew 

that [she] was about to pass out, and then, he would let [her] breathe for a 

second and then, he would choke [her] again.” DS also described the “choking” 

as Appellant having both hands around her neck. She testified that she experienced a “lot of pain” and could not “breathe or talk.” DS also stated that she 

had pain when swallowing for approximately a week after the incident.13

Appellant was convicted of another assault consummated by a battery—

originally charged as an aggravated assault but resulted in a conviction for the 

lesser-included offense of assault consummated by a battery—for strangling 

DS’s neck with his hand on or about 15 December 2015. DS testified that one 

morning in December 2015 in Alaska, DS asked Appellant to take their daughter to school since he had the day off. An argument ensued and continued from 

inside their house into their garage. During the argument, their daughter was 

inside Appellant’s truck which blocked DS’s car inside the garage. DS testified 

that Appellant pinned her against the back door of her car, with one hand 

around her neck and was pointing at her with the other hand while yelling at 

her. She distinguished this event in severity from the “choking” previously described, stating, “I mean, he was choking me but it wasn’t as bad as normal. I 

mean, I could still form words. It’s almost like he was just pinning me there 

instead of trying to suffocate me.” DS testified that she was able to get away 

from Appellant, retrieve their daughter from Appellant’s truck, and move to 

another part of the garage, where Appellant pursued her. DS described their 

daughter as intervening, and saying “no, daddy, no.” DS testified that she told 

several co-workers about this incident and moved out of the house soon after. 

One of DS’s co-workers testified that DS told her in August 2013 and again in 

December 2015 that Appellant had physically abused DS. Approximately six 

months after the December 2015 incident, DS moved back into the home with 

Appellant.

Appellant was convicted of one specification of assault consummated by 

battery and one specification of aggravated assault arising out of an incident 

that occurred on or about 19 August 2017. The assault consummated by a battery specification alleged that on or about 19 August 2017 in Alaska, Appellant 

 

13 The military judge granted the defense motion to merge the specifications related to 

the July 2013 incident for purposes of sentencing.
United States v. Silvernail, No. ACM 39618

12

struck DS in the body with his fist on divers occasions. The aggravated assault 

specification alleged that on the same date and at the same place, Appellant 

strangled DS’s neck with his hands with a force likely to produce death or 

grievous bodily harm. DS testified that she and Appellant had an argument in 

August 2017 when she asked Appellant to help put away groceries. DS testified 

that Appellant punched her in the stomach “several times” while in the garage 

of their home. DS described feeling afraid because she felt like Appellant 

“couldn’t control anything about himself.” She called out to her daughter and 

screamed loudly in an effort to attract the attention of the neighbors. She testified that she tried to fight back, but her actions only seemed to make Appellant angrier. DS stated that Appellant “choked” her twice, using “both hands.” 

DS remembered everything “kind of fading and going limp,” and then Appellant let her go and after she was able to take a breath, he “start[ed] choking 

[her] again.” She described what she experienced while Appellant choked her. 

DS said that she felt pressure, was unable to breathe or talk, heard a 

“womping” sound in her ears, and her vision went black for a second or two. 

The following day, on 20 August 2017, DS sent Appellant a text message, a 

copy of which was admitted into evidence as a prosecution exhibit. The message from DS to Appellant stated, “Btw, I’m sore from yesterday but luckily for 

you there are no marks on my face or stomach, my throat is a little bruised but 

no one will notice.” DS testified that she had “fingerprint” bruises on her neck, 

pain swallowing, and a feeling like Appellant’s “hands were still around [her] 

neck even three days later.”14

On appeal, as at trial, the Defense attempts to impeach DS’s credibility 

through several lines of attack. The Defense argues that despite DS’s ability to 

be financially independent from Appellant and provide for herself and her 

daughter, she moved back in with Appellant following one or more of the alleged assaults. The Defense points to social media posts and other statements 

by DS that were very positive about Appellant. The Defense argues that there 

were no photographs of any injuries, that DS made no police reports, and no 

witnesses, including DS’s friends and co-workers, saw marks or bruising following the assaults. The Defense also argues that DS and Appellant were in 

the midst of divorce proceedings at the time of trial and that custody of their 

daughter was a contentious issue. The Defense points to DS’s repeated requests to Detective DL for information regarding the domestic violence investigation. The Defense also suggests that DS was involved in some form of inappropriate relationship with Detective DB, who at the time of trial was the 

subject of a commander’s investigation regarding his role as a supervisor in the 

investigation of Appellant. Detective DL testified that he was “uncomfortable” 

 

14 The military judge granted a defense motion to merge the specifications related to 

the August 2017 incident for purposes of sentencing. 
United States v. Silvernail, No. ACM 39618

13

with the relationship between Detective DB and DS and felt that it was “inappropriate.” However, both Detective DB and DS testified that they were only 

friends, and the Defense presented no evidence to the contrary.

Despite the Defense suggestions regarding DS’s divorce and child-custody 

proceedings, it is undisputed that DS did not initially bring the evidence of 

domestic violence by Appellant to the attention of authorities. The evidence 

showed that she had been confiding in her friends, LM and PM, about the assaults since 2015, when they helped her move out of her house the first time. 

It was not until after the incident in August 2017 that PM reported the alleged 

assault to authorities. At trial, Detective DL confirmed that it was someone 

other than DS that made the initial report. He testified that when he first met 

with DS, his perception was that she did not want to talk to investigators or be 

involved in the investigation.

Appellant exposed all of these concerns during the trial. The court members 

were able to assess DS’s credibility and observe her demeanor in court, including during the cross-examination by trial defense counsel. Based upon her testimony alone, a rational factfinder could conclude beyond a reasonable doubt 

that each of these assaults occurred.

In assessing legal sufficiency, we are limited to the evidence produced at 

trial and are required to consider it in the light most favorable to the Prosecution. The bulk of the evidence produced at trial supporting these offenses was 

provided by DS’s testimony. While not all the evidence was free from conflict, 

it did not have to be. See Wheeler, 76 M.J. at 568 (citation omitted). We conclude 

that a rational factfinder could have found beyond a reasonable doubt all the 

elements to support Appellant’s convictions on the four specifications of assault 

consummated by a battery and on the two specifications of aggravated assault. 

Furthermore, in assessing factual sufficiency, after weighing all the evidence 

in the record of trial and having made allowances for not having personally 

observed the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt. See Turner, 25 M.J. at 325. Therefore, we find Appellant’s convictions both legally and factually sufficient.

B. Appellant’s Motion to Sever 

Appellant contends that the military judge abused his discretion by deciding not to sever the domestic violence offenses from the other offenses charged 

in Appellant’s case because of the likelihood of impermissible spillover. We disagree.

1. Additional Background

As noted above, the charges and specifications originally preferred against 

Appellant included allegations of dereliction of duty, making false official 
United States v. Silvernail, No. ACM 39618

14

statements, unlawfully possessing a firearm, and eight specifications of aggravated assault and assault consummated by a battery against his spouse, DS. 

Prior to trial, the Defense moved to sever all of the specifications pertaining to 

dereliction of duty, false official statement, and unlawfully possessing a firearm from the specifications pertaining to the domestic violence offenses. In the 

alternative, the Defense asked the military judge to require the Government 

to give separate opening statements, presentation of the evidence, and closing 

arguments; that there be separate findings instructions and separate worksheets for the domestic violence offenses and the other offenses; and for the 

military judge to give a “tailored spillover instruction to guard against ‘manifest injustice.’” The Government opposed the motion.

After conducting an Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing and 

receiving additional evidence and argument from counsel, the military judge 

denied the motion to sever. In a written ruling issued prior to authentication 

of the record of trial, he analyzed the three factors identified in United States 

v. Curtis, 44 M.J. 106, 128 (C.A.A.F. 1996), rev’d as to sentence on recon, 46 

M.J. 129 (C.A.A.F. 1997) (per curiam), and articulated in United States v. 

Southworth, 50 M.J. 74, 76 (C.A.A.F. 1999): “(1) whether the evidence of one 

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

has provided a proper limiting instruction; and (3) whether the findings reflect 

an impermissible crossover.” 

While acknowledging that the Government had not conceded the first factor, the military judge assumed this factor favored the Defense “for the purpose 

of resolving the motion.” However, the military judge did not find this factor 

dispositive and instead found that the remaining two factors weighed against 

severance. The military judge concluded that “no manifest injustice” would result if all of the alleged offenses were tried together. See R.C.M. 906(b)(10). 

However, as part of this ruling, the military judge directed the Government “to 

frame its opening statement, closing argument and cross examination of the 

accused – in the event he elects to testify – so as to maintain separation” between the domestic violence specifications and the other specifications. The 

military judge further required the Government:

[T]o specifically identify the complete scope of the anticipated 

testimony and evidence intended to be offered to prove the accused’s “qualifying domestic violence conviction” in support of 

the allegations [of dereliction of duty and unlawfully possessing 

a firearm as conduct prejudicial to good order and discipline] in 

a session outside the presence of the court members so that any 

additional objections may be raised and ruled upon.

During the presentation of evidence during the findings case, Detective DL 

stated that during his background investigation of Appellant, he discovered 
United States v. Silvernail, No. ACM 39618

15

that Appellant had a “conviction from 2008 in Arkansas for a . . . qualifying 

domestic violence conviction for Lautenberg.” Trial defense counsel immediately objected, and the military judge sustained the objection, instructing the 

court members:

Members, you’ll disregard that portion of the witness’s response. 

Let me be plain, no witness can testify that they believe any 

other witness or that any other witness’s account is credible or 

true, or whether a crime occurred. To the extent that you believe 

that this witness has so testified, you’ll disregard that portion of 

his testimony. You can consider his response that he found a database revealing a conviction from 2008 in Arkansas. You’ll disregard the portion of his response characterizing it as a qualifying domestic violence conviction. This instruction will be included, at least in broad strokes, in my written instructions at 

the end of the case. Additionally, this rule applies to the earlier 

testimony that you’ve received from [DS] on this point, where at 

various times, she sponsored what another witness may or may 

not have believed about her account. You are going to get that 

instruction at the end, but since I’m giving it to you now, I figured I would surface that concern as well. So, again, one more 

time to be clear, no witness can testify that they believe another 

witness’s account is true or that a crime occurred. It’s for you to 

make those determinations. Witnesses tell you what the evidence is. I tell you what the law is. And, then, you make your 

determination on the findings in this case. Does every member 

understand and can you follow along with the court’s instruction? 

The court members responded that they could do so, and the Defense requested no further instructions at that point. Later, when instructing the court 

members with respect to findings, the military judge stated, inter alia: 

An accused may be convicted based only on evidence before the 

court and not on evidence of a general criminal disposition. Each 

offense must stand on its own and you must keep the evidence 

of each offense separate. Stated differently, if you find or believe 

that the accused is guilty of one offense, you may not use that 

finding or belief as a basis for inferring, assuming, or proving 

that he committed any other offense. 

If evidence has been presented which is relevant to more than 

one offense, you may consider that evidence with respect to each 

offense to which it is relevant. . . .
United States v. Silvernail, No. ACM 39618

16

The burden is on the prosecution to prove each and every element of each offense, beyond a reasonable doubt. Proof of one 

offense carries with it no inference that the accused is guilty of 

any other offense.

I just instructed you that you may not infer the accused is guilty 

of one offense because his guilt may have been proven on another 

offense, and that you must keep the evidence with respect to 

each offense separate. However, there is an exception to this prohibition. Evidence of the accused’s knowledge of his assigned 

duty, if any, may be considered as part of your deliberations on 

the specification of Charge I.[

15] It may also be considered for its 

bearing on whether, under the circumstances, the conduct of the 

accused was to the prejudice of good order and discipline in the 

Armed Forces as alleged in the specification of Charge IV.

You have received evidence that the accused may have been previously convicted for an offense [of domestic battery]. You may 

consider this evidence, whether from those exhibits or any other 

evidence and testimony admitted, in determining the weight and 

significance, if any, to be given to the other evidence and testimony in this case. You may not consider this evidence, however, 

in determining the accused’s guilt of any of the allegations in 

Charge III and its specifications.[

16] The fact that the accused 

may have been previously convicted for an offense will have no 

bearing on the allegations of aggravated assault and assault consummated by a battery. Further, you may not conclude from this 

evidence that the accused is a bad person or has general criminal 

tendencies and that he therefore committed any of the offenses 

charged.

The military judge also provided additional tailored instructions to the 

court members as to how they could properly use evidence of Appellant’s uncharged misconduct.

17

 

15 Charge I and its specification was the alleged dereliction of duty offense. 

16 Charge III and its specifications were the alleged domestic violence offenses. 

17 After cross-examination of DS, the military judge admitted limited purpose testimony under Mil. R. Evid. 404(b) that Appellant “may have physically and emotionally 

abused” DS prior to 9 January 2013, a time period outside of the five-year statute of 

limitations. 
United States v. Silvernail, No. ACM 39618

17

2. Law

We review a military judge’s ruling on a motion to sever for an abuse of 

discretion. United States v. Giles, 59 M.J. 374, 378 (C.A.A.F. 2004) (citation 

omitted). “A military judge abuses his discretion when his findings of fact are 

clearly erroneous, when he is incorrect about the applicable law, or when he 

improperly applies the law.” United States v. Roberts, 59 M.J. 323, 326 

(C.A.A.F. 2004).

“Under R.C.M. 906(b)(10), a military judge is required to grant a severance 

motion when necessary to avoid a ‘manifest injustice.’” Giles, 59 M.J. at 378. 

On appeal, “the appellant must demonstrate more than the fact that separate 

trials would have provided a better opportunity for an acquittal[;]” he must 

demonstrate “the ruling caused actual prejudice by preventing the appellant 

from receiving a fair trial.” Id. (citations omitted). Appellate courts review such 

rulings by applying the following factors: “(1) Do the findings reveal an impermissible crossover of evidence? (2) Would the evidence of one offense be admissible proof of the other? (3) Did the military judge provide a proper limiting 

instruction?” Id. (citing Curtis, 44 M.J. at 128).

Court members are presumed to follow the military judge’s instructions in 

the absence of evidence to the contrary. United States v. Taylor, 53 M.J. 195, 

198 (C.A.A.F. 2000) (citations omitted).

3. Analysis

The military judge did not abuse his discretion in concluding severance was 

not required in order to prevent manifest injustice to Appellant. Anticipating 

the evidence that would be presented in this case, the military judge acknowledged the importance placed on the presumption of innocence and the obligation of court members to follow the law in general voir dire would be of “particular emphasis” in Appellant’s case. The military judge reasonably anticipated 

that he would give a “tailored instruction explaining the permitted uses – if 

any – of the evidence admitted to prove one offense with respect to another if 

[Appellant] maintains his election to be tried by members,” which Appellant 

did. The military judge also found that the clear legal and factual distinctions

between the alleged offenses pertaining to domestic violence and all of the 

other offenses made the risk of “impermissible crossover unlikely.”

As noted above, the military judge did give appropriate limiting instructions, and the Government generally adhered to his directions to present its 

opening statement and closing argument in a manner that maintained separation between the offenses. The military judge also required the Government 

to “specifically identify the complete scope of the anticipated testimony and 

evidence intended to be offered to prove [Appellant]’s ‘qualifying domestic violence conviction’ . . . in a session outside the presence of the court members so 
United States v. Silvernail, No. ACM 39618

18

that any additional objections may be raised and ruled upon.” Reviewing the 

record as a whole, we find no indication the court members failed to follow the 

military judge’s instruction or impermissibly relied on evidence of any other 

offense in order to find Appellant guilty of the domestic violence offenses.

Despite Appellant’s argument to the contrary, we find that the military 

judge’s limiting instruction was tailored to address the specific evidence in this 

case. The military judge clearly recognized the potential impact of the evidence 

of Appellant’s prior domestic violence conviction and tailored his instruction to 

caution the court members about the permissible and impermissible uses of 

that evidence. As the Government points out, the court members’ findings of 

not guilty as to some of the domestic violence offenses supports the conclusion 

that the court members followed the military judge’s instructions. We do not 

agree with Appellant’s contention that the evidence supporting the domestic 

violence offenses was weak, and that there was a “high likelihood of impermissible crossover when weak evidence supports a charge.” See Curtis, 44 M.J. at 

128. The sufficiency of the evidence as to each of the offenses of which Appellant was convicted is discussed above, and we find that the joinder of the offenses in this case did not create an impermissible risk of spillover or any other 

manifest injustice. We find that the military judge’s findings of fact were supported by the evidence in the record, and that he correctly applied the law to 

the facts. Accordingly, we conclude the military judge did not abuse his discretion.

C. Statute of Limitations

Appellant asserts that his conviction of dereliction of duty, alleging he possessed Government-issued firearms without informing his supervisors of his 

prior domestic violence conviction, was barred by the statute of limitations. 

Appellant argues that the act or omission giving rise to the duty for which he 

was allegedly derelict arose more than five years prior to receipt of the charge 

and its specification by the summary court-martial convening authority. We 

disagree.

1. Additional Background

As noted above, in 2008 Appellant was convicted in Arkansas for domestic 

battery against his girlfriend at that time, EA.

The summary court-martial convening authority receipted for the sworn 

charges in Appellant’s case on 9 January 2018. At his court-martial, on 15 September 2018, Appellant was convicted for being derelict in the performance of 

his duties by willfully possessing Government-issued firearms on divers occasions between on or about 9 January 2013 and on or about 19 September 2017 

without informing his supervisors of his qualifying domestic violence conviction “as it was his continuing, affirmative duty to do.”
United States v. Silvernail, No. ACM 39618

19

2. Law

The statute of limitations applicable to a particular offense is a question of 

law, which appellate courts review de novo. United States v. Lopez de Victoria, 

66 M.J. 67, 73 (C.A.A.F. 2008) (citation omitted).

Article 43(b)(1), UCMJ, 10 U.S.C. § 843(b)(1), provides in pertinent part 

that “[a] person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of 

sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.”

3. Analysis

On appeal, Appellant argues that his failure to report his qualifying domestic violence misdemeanor offense occurred at the time of his conviction in Arkansas in 2008 and was completed at that time. Consequently, Appellant concludes, the statute of limitations had run by 2013, several years prior to the 

receipt of court-martial charges by the summary court-martial convening authority in 2018 in this case. Appellant relies on the United States Supreme 

Court opinion in Toussie v. United States, 397 U.S. 112 (1970), in support of 

his argument that the failure to report the qualifying offense was not a “continuing offense” and therefore, was completed in 2008. In Toussie, the Supreme 

Court held that the obligation to register for the Selective Service Act within 

five days of the appellant’s eighteenth birthday was not a “continuing offense,” 

relying on Congress’s silence on whether it intended the failure to register to 

be a continuing offense. Id. at 120–21.

The Government acknowledges some similarities between the duties imposed to register in Toussie and to report in this case, but argues that Toussie

is not dispositive on the issue of whether the obligation to report the qualifying 

domestic violence conviction is a continuing offense. The Government points to 

the language of paragraph 6.1.4.5.1.1 of DoDI 6400.06 as “unambiguously” imposing an “affirmative, continuous obligation” to report the conviction. 

We agree that Toussie is not dispositive on the issue of whether the statute 

of limitations lapsed in this case. While 18 U.S.C. § 922(g)(9) may not have 

specified by its terms that it was a continuing offense, Appellant was charged 

and convicted with being derelict in the performance of his duties on divers 

occasions. The duty of which Appellant was convicted was imposed by DoDI 

6400.06, which clearly described the duty as an “affirmative, continuing” one. 

As a result, Appellant had an ongoing duty to inform his supervisors of the 

qualifying conviction during the charged timeframe. The evidence established 

that Appellant was provided Government-issued firearms within the statute 

of limitations and willfully failed to report his qualifying conviction as he was 
United States v. Silvernail, No. ACM 39618

20

required to do at the time he received the Government-issued firearms. In addition, DoDI 6400.06 contains no provision that would have relieved Appellant 

from reporting his qualifying conviction at a new duty station even if he had 

reported it at a prior duty station. Therefore, the dereliction of duty offense for 

which Appellant was convicted was not barred by the statute of limitations.

D. Constitutional Challenges 

On appeal, for the first time Appellant asserts as a single assignment of 

error that Charge IV, alleging that he unlawfully possessed a firearm in or 

affecting interstate commerce in violation of Article 134, UCMJ, is unconstitutional as applied to him. Appellant also asserts that if he was subject to a “continuing” duty to report a Lautenberg qualifying offense to his supervisors as 

alleged in Charge I, that charge is also unconstitutional as applied to him. Specifically, Appellant contends these charges deprive him of his Second Amendment18 right to keep and bear arms. We are not persuaded that either offense 

is unconstitutional as applied to Appellant.

1. Additional Background

As noted above, Appellant was convicted of being willfully derelict in the 

performance of his duty on divers occasions by possessing a Government-issued firearm without informing his supervisors of his qualifying conviction under the Lautenberg Amendment. Appellant was also convicted of unlawfully 

possessing a firearm in or affecting interstate commerce on divers occasions, 

in violation of 18 U.S.C. § 922(g)(9), such conduct being to the prejudice of good 

order and discipline.

2. Law

We review the constitutionality of a statute de novo. United States v. Ali, 

71 M.J. 256, 265 (C.A.A.F. 2012) (citing United States v. Disney, 62 M.J. 46, 48 

(C.A.A.F. 2005)).

The Second Amendment to the United States Constitution states that: “A 

well regulated Militia, being necessary to the security of a free State, the right 

of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the Second 

Amendment confers upon an individual the right to keep and bear arms. Later, 

in McDonald v. City of Chicago, 561 U.S, 742 (2010), the Supreme Court held 

that the Second Amendment’s individual right to keep and bear arms applies

to the states through the Due Process Clause of the Fourteenth Amendment.19

 

18 U.S. CONST. amend. II.

19 U.S. CONST. amend. XIV.
United States v. Silvernail, No. ACM 39618

21

In United States v. Smith, 56 M.J. 711, 716 (A.F. Ct. Crim. App. 2001), rev. 

denied, 56 M.J. 477 (C.A.A.F. 2002), this court addressed the issue of whether 

the Lautenberg Amendment was constitutional as applied to an individual in 

possession of a firearm after having been convicted of a misdemeanor crime of 

domestic violence. In Smith, the appellant was charged with violating 18 

U.S.C. § 922(g)(9) by possessing a firearm after being convicted of a misdemeanor domestic violence offense under Ohio state law. Id. at 712. The appellant argued that 18 U.S.C. § 922(g)(9) unconstitutionally denied him the right 

to keep and bear arms under the Second Amendment. Id. at 716. Without deciding the appropriate standard of constitutional scrutiny, this court found “no 

merit in this argument,” holding that “[r]egardless of whether the right conferred by the Second Amendment is ‘individual’ or ‘collective’ . . . . Congress 

has the power to regulate the interstate trade in firearms, and may act to stem 

the flow of guns to those whose convictions for domestic violence offenses reflect a propensity to inflict bodily harm upon others.” Id. (citing Gillespie v. 

City of Indianapolis, 185 F.3d 693, 706 (7th Cir. 1999)).

3. Analysis

Relying on Heller, Appellant claims the Lautenberg Amendment is unconstitutional as applied to him. Specifically, Appellant argues that he cannot be 

deprived, for life, of his right to keep and bear arms based on a misdemeanor 

conviction. He further argues that statutes—such as the Lautenberg Amendment—restricting “core Second Amendment” protections are subject to “strict 

scrutiny.” Consequently, Appellant contends that if he was under a “continuing” duty to report the Lautenberg qualifying offense, it is unconstitutional as 

applied to him because the Lautenberg Amendment “fails” under a strict scrutiny analysis. 

At the outset we note that the “right of law-abiding, responsible citizens to 

use arms in defense of home and hearth,” as recognized in Heller was not implicated by the dereliction of duty offense of which Appellant was convicted. 

See Heller, 554 U.S. at 635. As the Government correctly points out, the dereliction of duty offense of which Appellant was convicted related to his possession of Government-issued firearms. 

Appellant argues that because Smith was decided before Heller’s recognition of an “individual” right to keep and bear arms, we should hold that Smith

is no longer controlling and overrule it. We decline to do so. In Smith, this court 

recognized that Congress has the power to regulate the Second Amendment 

“regardless of whether the right conferred by the Second Amendment is ‘individual’ or ‘collective.’” 56 M.J at 716. The Supreme Court’s decision in Heller

did not affect Smith’s conclusion that Congress “may act to stem the flow of 

guns to those whose convictions for domestic violence offenses reflect a propensity to inflict bodily harm upon others.” See 56 M.J. at 716 (citation omitted).
United States v. Silvernail, No. ACM 39618

22

In the years following the Supreme Court’s decision in Heller, federal circuits that have considered a Second Amendment challenge to the Lautenberg 

Amendment, specifically Section 922(g)(9) of Title 18, have similarly upheld 

this statute, though “under varying frameworks and rationales.” Stimmel v. 

Sessions, 879 F.3d 198, 203 (6th Cir. 2018) (citations omitted). 

In Stimmel, the United States Court of Appeals for the Sixth Circuit analyzed a constitutional challenge to the Lautenberg Amendment under a twopart inquiry, considering whether the challenged statute burdens a Second 

Amendment guarantee, and if so, whether the statute satisfies “the appropriate level of heightened means-end scrutiny.” Id. at 204 (citations omitted). The 

court assumed, without deciding, that “a domestic violence misdemeanant’s 

Second Amendment rights remain intact to some degree.” Id. at 206 (citations 

omitted). Turning next to the level of scrutiny, the Sixth Circuit applied intermediate scrutiny, requiring the Government to advance a “significant, substantial, or important” objective that “reasonabl[y] fit” between the challenged 

statute and the objective. Id. at 207 (citations omitted). The court ultimately 

held “it is reasonable to conclude that domestic abusers have high recidivism 

rates, pose a continued risk to their families, as well as law enforcement, are 

more likely to kill their victims when armed, and should be disarmed[,]” and 

in accordance with “the unanimous view of those circuits that have addressed 

the question” concluded the “fit” is “reasonable” and Section 922(g)(9) survives 

intermediate scrutiny. Id. at 211; see also United States v. Chovan, 735 F.3d 

1129, 1139 (9th Cir. 2013), cert. denied, 574 U.S. 878 (2014); United States v. 

Booker, 644 F.3d 12, 22–26 (1st Cir. 2011), cert. denied, 565 U.S. 1204 (2012); 

United States v. Skoien, 614 F.3d 638, 639–45 (7th Cir. 2010) (en banc), cert. 

denied, 562 U.S. 1303 (2011); cf. United States v. White, 593 F.3d 1199, 1205–

06 (11th Cir. 2010) (holding the statute “presumptively lawful”).

We find nothing in the Supreme Court’s decision in Heller or in the decisions 

by other federal circuits that would cause us to adopt a strict scrutiny framework for reviewing Appellant’s challenge to the Lautenberg Amendment or to 

overrule this court’s decision in Smith. Accordingly, we reject Appellant’s asapplied challenges to both Charge I and Charge IV, and we find no constitutional infirmity with either conviction.

E. Denial of Motion for Mistrial

During the Government’s findings case and following testimony by LM, 

who was one of DS’s friends, Appellant made a motion to strike LM’s testimony 

or, in the alternative, that the military judge declare a mistrial. The military 

judge granted Appellant’s motion to strike the testimony of LM and denied the 

motion for a mistrial. Appellant contends the military judge abused his discretion by denying the motion for mistrial based on the “unique circumstances” of 

this case. Appellant points to the high risk of spillover from the non-domestic 
United States v. Silvernail, No. ACM 39618

23

violence offenses and that the military judge ordered the testimony of LM 

“stricken from the record.”

20 Appellant asserts that this combination of factors 

was so prejudicial to Appellant that it could not be cured by an instruction to 

the court-members. We disagree.

1. Additional Background

Appellant first made a motion for mistrial during DS’s testimony after DS 

made mention of Appellant’s prior conviction for domestic violence. During her 

testimony during the Government’s case-in-chief, DS stated that one of the detectives told her about Appellant’s prior misdemeanor conviction for domestic 

violence in Arkansas and DS added Appellant “does have that previous conviction.” The military judge sustained in part an objection by the trial defense 

counsel and then provided a limiting instruction to the court members advising 

them that they could only consider that information as to the effect it had on 

DS hearing that information and not as to whether the information was true. 

A short time later, the military judge sustained another objection by trial defense counsel after DS testified that Appellant was “no longer allowed to be at 

his job and around guns and everything.” The military judge provided another 

limiting instruction to the court members that they could only consider that 

information as to the effect that it had on DS to decide to move out of the family 

home. 

DS further testified that she moved in with friends the day after receiving 

the phone call from law enforcement because they were planning to bring Appellant in for questioning and were concerned for her safety at home. The military judge then took a break in the proceedings. Trial defense counsel requested an Article 39(a), UCMJ, session during which the Defense then requested a mistrial based on the failure to sever the domestic assault offenses 

involving DS from the other offenses (Charges I, II, and IV), and DS’s testimony referencing uncharged misconduct and Appellant’s prior conviction.

Trial defense counsel stated the basis for the motion for a mistrial was the 

testimony of DS referencing three incidents prior to the charged timeframe. 

Trial defense counsel also stated he was renewing his motion to sever the domestic violence offenses from the other offenses, arguing that Appellant could 

not receive a fair trial under the circumstances. After hearing the argument of 

counsel for both sides, the military judge denied the defense motion for a mistrial, stating,

 

20 The military judge instructed the court members to “wholly, completely, and without 

exception disregard the entirety of [LM’s] testimony, and it must have no bearing, 

whatsoever, on [their] deliberations.” 
United States v. Silvernail, No. ACM 39618

24

Under [R.C.M.] 915, mistrial is required when such action is 

manifest and necessary in the interest of justice because of the 

circumstances arising during the proceedings which casts [sic] 

substantial doubt upon the fairness of the proceedings. . . . I 

have inquired into the views of the parties as required by 

[R.C.M.] 915(b); and, based on 915(a), as well as the [D]iscussion 

section, which enjoins military judges to exercise this power with 

great caution, under urgent circumstances only and for plain 

and obvious reasons. Taking into account that this is not the 

kind of information or material that is so prejudicial that a curative instruction would be inadequate, I don’t find that a mistrial would be appropriate in these proceedings. 

The denial of the motion for mistrial discussed above is not the one challenged by Appellant on appeal. Later, during the testimony of LM, trial defense 

counsel moved for a mistrial in the alternative to a motion to strike the testimony of LM. It is the denial of the second motion for a mistrial that Appellant 

raises as error on appeal. 

The motion to strike the testimony of LM originated from a discovery issue 

raised by trial defense counsel before the court-martial. Prior to trial, the military judge denied a defense motion to compel discovery or abate the proceedings as a result of the Government’s loss of discoverable material. Specifically, 

the pretrial interview of LM by SF investigators, as well as those of other witnesses, was recorded but the recording was not saved. According to the military 

judge’s findings of fact, while the investigators routinely saved the recordings 

of any subject interview, the preservation of witness interview recordings was 

discretionary on the part of investigators under the local “internal recording 

policy.” Seven witness-interview recordings were not saved in this case. When 

the recording of a witness interview was not saved, investigators captured the 

substance of a witness interview in writing on a witness interview form. LM’s 

witness statement, as well as those of other witnesses in this case, were preserved in this way. The military judge denied the defense motion to compel 

discovery or abate the proceedings after determining that the Defense (1) was 

“able to obtain comparable evidence” through other reasonably available 

means; (2) failed to demonstrate the exculpatory value was apparent before 

the destruction; and (3) failed to demonstrate bad faith by the Government. 

The military judge acknowledged the destroyed recordings would have provided additional information but concluded that it was entirely speculative 

that the additional information would be of central importance to an issue as 

to be essential to a fair trial. 
United States v. Silvernail, No. ACM 39618

25

Later, after DS testified, but prior to LM being called to testify, trial defense counsel requested an Article 39(a), UCMJ, session to discuss LM’s expected testimony. Acknowledging that the issue was not ripe until LM testified, trial defense counsel provided notice to the court as to concerns regarding 

the application of the Jencks Act21 with respect to the destroyed recording of 

LM’s interview with investigators. LM was then called as a witness and testified. She described prior statements by DS that were mostly consistent with 

DS’s testimony regarding the assault in December 2015. LM became emotional 

at times during her testimony. She also stated that DS did not want to tell 

anyone else about the assaults. LM additionally testified that when she and 

PM helped Appellant and his family move, they helped them move a gun safe 

that she believed contained guns. After trial counsel completed the direct examination of LM, trial defense counsel requested an Article 39(a), UCMJ, session. 

LM then testified during the Article 39(a) session about her interview with 

Detective DL in October 2017. While she could not remember specific details, 

she estimated that she was at the SF investigations office for one to two hours 

for her interview. She confirmed that she wrote a statement that was approximately half of a page that only captured the “meat and potatoes,” as opposed 

to the more detailed statement she had given verbally to Detective DL. She 

had difficulty recalling the details of what she discussed during her interview 

with Detective DL.

After LM’s Article 39(a) session testimony concluded, trial defense counsel 

asked the military judge to strike LM’s prior testimony that she had given on 

the merits. The military judge asked trial defense counsel whether he wanted 

LM’s testimony struck or if he was requesting a mistrial. Trial defense counsel 

stated he was requesting LM’s testimony be struck. The military judge then 

again asked whether trial defense counsel was requesting a mistrial. Trial defense counsel said that he was requesting a mistrial in the alternative to LM’s 

testimony being struck. After hearing arguments from counsel for both sides, 

the military judge took a break, during which he considered the arguments 

presented, reviewed the evidence and “voluminous materials” that had been 

provided during the course of the court-martial to that point, and reviewed the 

applicable case law. The military judge concluded that R.C.M. 914 and the 

Jencks Act had been violated and that the good-faith loss exception argued by 

the Government did not apply. The military judge then discussed his conclusions regarding the options available to him—to either strike LM’s testimony 

or grant a mistrial.

 

21 18 U.S.C. § 3500.
United States v. Silvernail, No. ACM 39618

26

The military judge then granted the defense request to strike LM’s testimony and denied the motion for mistrial. The military judge explained his rationale on the record. He noted that the corroborating evidence provided by LM 

was not the only available evidence. He noted that the court members had 

demonstrated that they could follow his instructions as he had previously instructed them to disregard other information in the court-martial. The military 

judge stated that he considered the fact that LM became somewhat emotional 

at times during her testimony. He also noted that LM’s testimony was not the 

kind of information that was “so salacious or distracting” that the members 

would not be able to disregard.

The military judge then provided the following instruction to the court 

members regarding LM’s testimony:

Members, I have an instruction for you. As with all my instructions, I’d ask you to pay close attention to what I’m about to read 

to you; and, then, I’m going to have some individualized questions for each of you. 

Members, based on legal issues that were raised to my attention 

yesterday, following the direct examination of Mrs. [LM], the

court has determined that the Rules for Courts-Martial do not 

permit you to consider her testimony. Accordingly, you are instructed to wholly, completely, and without exception disregard 

the entirety of her testimony, and it must have no bearing, whatsoever, on your deliberations in this case. It is as if it were never 

given and you will draw no inference favorable or unfavorable to 

either side based on this order. I specifically note you were not 

afforded the opportunity to observe her cross-examination from 

the defense, or the chance to pose her questions yourselves and 

have thereby not been provided a full account of what her testimony might have been once it was subjected to challenge. As a 

consequence of that, you have similarly not been provided sufficient information to determine her credibility. Nonetheless, because the court has determined her testimony during direct examination is inadmissible, any additional questioning by the defense or the court members, or me derived therefrom would be 

similarly inadmissible. For that reason, it will not be developed. 

Can every member follow this instruction?

In response to questioning by the military judge, each court member individually affirmed he or she could follow the military judge’s instruction. The 

military judge also noted that each court member either lined out material or 

folded up paper and provided it to the bailiff to shred after he instructed them 

to destroy any notes they had taken regarding LM’s testimony. The military 
United States v. Silvernail, No. ACM 39618

27

judge again provided the above-quoted instruction to disregard LM’s testimony 

in its entirety during findings instructions. 

2. Law

We review a military judge’s ruling on a motion for mistrial for a clear 

abuse of discretion. United States v. Coleman, 72 M.J. 184, 186 (C.A.A.F. 2013) 

(citing United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009)). “The military 

judge may, as a matter of discretion, declare a mistrial when such action is 

manifestly necessary in the interest of justice because of circumstances arising 

during the proceeding which casts substantial doubt upon the fairness of the 

proceedings.” R.C.M. 915(a). “Declaration of a mistrial is a drastic remedy, and 

such relief will be granted only to prevent a manifest injustice against the accused.” United States v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990) (citation omitted). “Because of the extraordinary nature of a mistrial, military judges should 

explore the option of taking other remedial action, such as giving curative instructions.” Ashby, 68 M.J. at 122 (citations omitted). A mistrial should only 

be granted “when ‘inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members.’” United 

States v. McFadden, 74 M.J. 87, 89–90 (C.A.A.F. 2015) (quoting United States 

v. Diaz, 59 M.J. 79, 92 (C.A.A.F. 2003)).

3. Analysis

We find the military judge did not abuse his discretion by denying the motion for a mistrial. Declaration of a mistrial is a drastic and disfavored remedy, 

and is not appropriate when curative instructions are adequate. See McFadden, 74 M.J. at 89–90 (citations omitted). In this case, the military judge not 

only sustained timely objections to inadmissible testimony, but also gave 

strong and specific instructions describing how, if at all, the court members 

could properly consider the evidence before them.

We addressed Appellant’s contention regarding the risk of impermissible 

spillover in the discussion of the motion to sever above. The military judge 

granted the relief requested by the trial defense counsel by striking LM’s testimony. We are not persuaded by Appellant’s attempt to combine these two 

contentions to form “unique circumstances” warranting a mistrial. The effect 

of the military judge’s ruling with respect to LM’s testimony prevented the testimony of at least three additional government witnesses, which certainly did 

not work to the prejudice of Appellant. Other witnesses, JL and AS, also described prior consistent statements of domestic abuse by DS, similar to the 

testimony provided by LM. As the military judge noted, while LM’s testimony 

was sometimes emotional, it was not to such a degree that the court members 

would not be able to disregard it. Each of the military judge’s rulings were fully 
United States v. Silvernail, No. ACM 39618

28

supported by the evidence in the record and reflected the correct application of 

the law.

We presume the court members followed the military judge’s instructions 

absent evidence to the contrary. See United States v. Stewart, 71 M.J. 38, 42 

(C.A.A.F. 2012) (citing United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 

2000)). We conclude the military judge did not clearly abuse his discretion in 

finding the favored remedy of curative instructions was adequate, and concluding that the disfavored remedy of mistrial was not “manifestly necessary in the 

interest of justice.” See R.C.M. 915(a); Coleman, 72 M.J. at 186 (citation omitted). 

F. Timeliness of Appellate Review

1. Additional Background

Appellant’s case was originally docketed with this court on 30 January 

2019. The delay in rendering this decision within 18 months of docketing is 

presumptively unreasonable. However, we determine there has been no violation of Appellant’s right to due process and a speedy post-trial review and appeal. 

2. Law

“We review de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal.” United States v. Moreno, 

63 M.J. 129, 135 (C.A.A.F. 2006) (citing United States v. Rodriguez, 60 M.J. 

239, 246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 

2003)). In Moreno, the United States Court of Appeals for the Armed Forces 

(CAAF) established a presumption of facially unreasonable delay when the 

Court of Criminal Appeals does not render a decision within 18 months of docketing. Id. at 142. Where there is such a delay, we examine the four factors set 

forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; 

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

review and appeal; and (4) prejudice [to the appellant].” Moreno, 63 M.J. at 135 

(citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United 

States, 60 M.J. 100, 102 (C.A.A.F. 2004) (per curiam)). “No single factor is required for a finding of a due process violation and the absence of a given factor

will not prevent such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533. 

However, where an appellant has not shown prejudice from the delay, there 

is no due process violation unless the delay is so egregious as to “adversely 

affect the public’s perception of the fairness and integrity of the military justice 

system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In Moreno,

the CAAF identified three types of cognizable prejudice arising from post-trial 

processing delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) 
United States v. Silvernail, No. ACM 39618

29

impairment of ability to present a defense at a rehearing. 63 M.J. at 138–39 

(citations omitted).

3. Analysis 

The court is affirming the findings and sentence in this case. We find no 

oppressive incarceration because Appellant is no longer in confinement and his 

appeal has not resulted in a finding warranting sentencing relief. As for anxiety and concern, the CAAF has explained that “the appropriate test for the 

military justice system is to require an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by 

prisoners awaiting an appellate decision.” Id. at 140. Appellant has made no 

claim of such particularized anxiety, and we discern none in his case. Lastly, 

where the appeal does not result in a rehearing on findings or sentence, as in 

this case, an appellant’s ability to present a defense at a rehearing is not impaired. Id. Because we conclude that Appellant suffered no prejudice from the 

delay, we do not address the first three Barker factors.

Where, as here, 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.” 

Toohey, 63 M.J. at 362. This is a lengthy and complicated case. The record of 

trial includes 10 volumes. The proceedings took place over eight days, and the 

transcript is almost 2,000 pages long. Appellant filed his brief with this court 

almost seven months after docketing, the Government filed its brief more than 

two months later, and Appellant then filed a reply brief a month later. Appellant raised significant issues for our consideration, including those about 

which we heard oral argument. We originally granted Appellant’s motion for 

oral argument on 8 January 2020 and the oral argument was scheduled for 24 

April 2020. However, due to the imposition of federal COVID-19 social distancing guidelines and travel restrictions—all in response to a global pandemic—

the oral argument was delayed with Appellant’s consent until 21 July 2020.

On 6 July 2021, counsel for Appellant submitted a motion for leave to file 

a notice of Appellant’s demand for speedy appellate processing. We denied Appellant’s motion, but nevertheless recognized Appellant’s demand for speedy 

appellate review. The delay in issuing the court’s opinion exceeded the 18-

month Moreno standard by approximately 12 months. Under the particular circumstances in this case, we do not find the delay so egregious as to adversely 

affect the perceived fairness and integrity of the military justice system. See

Toohey, 63 M.J. at 362.

Recognizing our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we 

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

even in the absence of a due process violation. See United States v. Tardif, 57 
United States v. Silvernail, No. ACM 39618

30

M.J. 219, 225 (C.A.A.F. 2002). After considering the factors enumerated in 

United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 

264 (C.A.A.F. 2016), we conclude it is not. 

III. CONCLUSION

The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred.22 Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED. 

FOR THE COURT

NATALIA A. ESCOBAR, Capt, USAF

Deputy Clerk of the Court

 

22 Our review of the record reveals the convening authority ordered no portion of Appellant’s sentence executed in the initial court-martial order. The term of confinement 

already having been served, we note that if the other elements of the sentence are not 

ordered executed in the final court-martial order, any reduction in grade and forfeiture 

of pay and allowances imposed upon Appellant pursuant to the adjudged sentence 

must be restored to Appellant. See United States v. Bridges, 65 M.J. 531, 534–35 (C.G. 

Ct. Crim. App. 2007), aff’d, 66 M.J. 246 (C.A.A.F. 2008).