UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman JAMES M. KMET

United States Air Force

ACM 38755

2 June 2016

Sentence adjudged 10 October 2014 by GCM convened at Schriever Air 

Force Base, Colorado. Military Judge: Brendon K. Tukey.

Approved Sentence: Bad-conduct discharge, confinement for 120 days, 

forfeiture of all pay and allowances during confinement and forfeiture of 

$1031.00 pay per month thereafter until the bad-conduct discharge is 

executed, and reduction to E-1.

Appellate Counsel for Appellant: Lieutenant Colonel Lucy H. Carrillo, and 

Captain Johnathan D. Legg.

Appellate Counsel for the United States: Captain Tyler B. Musselman and 

Gerald R. Bruce, Esquire.

Before

ALLRED, TELLER, and ZIMMERMAN1

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

ALLRED, Chief Judge:

Appellant was tried at a general court-martial composed of officer members.2 

Contrary to his pleas, he was found guilty of an indecent act and abusive sexual contact, in 

 

1 Senior Judge Teller and Judge Zimmerman participated in this decision prior to their retirements. 

2 After discussing with Appellant his forum rights, the military judge prematurely announced that the court was 

assembled. Later, after the members were called and sworn, the judge properly announced assembly of the court. 
2 ACM 38755

violation of Article 120, UCMJ, 10 U.S.C. § 920. Appellant was found not guilty of 

indecent visual recording of another, in violation of Article 120c, UCMJ, 10 U.S.C. § 920c. 

The adjudged sentence was a bad-conduct discharge, confinement for 120 days, forfeiture 

of all pay and allowances, and reduction to E-1. The convening authority approved the 

adjudged sentence except that he reduced the forfeiture of all pay and allowances to 

“forfeiture of all pay and allowances during confinement and forfeiture of $1,031.00 pay 

per month thereafter until the bad conduct discharge is executed.”

Before us, Appellant contends: (1) the military judge erred when he conducted trial 

proceedings in the absence of detailed court members; (2) the trial judge abused his 

discretion in admitting statements Appellant made to the victim; (3) the convening 

authority improperly considered statements made by the victim during the clemency 

process; and (4) the military judge erred in instructing the panel members. We disagree 

and affirm the findings and sentence.3

Background

While attending technical school in 2010, Appellant and the victim met and became 

good friends. By early 2011, both were assigned to the same permanent duty station. 

According to the victim, their relationship was never romantic, but they were very close—

like “brother and sister.” Eventually, they moved into a house, which they shared with 

others and in which they kept separate bedrooms. While they were living in the house, 

Appellant, at times, took photos of the victim without her permission while she was 

sleeping. The photos included a brief video in which Appellant, having pulled down her 

shorts in her darkened bedroom, touches and kisses the victim’s exposed buttocks. Further 

facts necessary to address the assignments of error are discussed below. 

 

See Rule for Courts-Martial (R.C.M) 911, Discussion (“When trial is by a court-martial with members, the courtmartial is ordinarily assembled immediately after the members are sworn.”) To the degree that the trial judge erred in 

announcing assembly, we find such error to be harmless.

3 At trial, the Defense made a written motion under Mil. R. Evid 412 (Appellate Exhibit XII), the Government 

responded in writing (Appellate Exhibit XIII), and the military judge addressed these matters in a closed hearing. The 

military judge ordered the transcript of the closed hearing sealed, and pages165–206 were properly sealed. See Mil 

R. Evid. 412(c)(3) (stating that when a court-martial addresses matters under Mil R. Evid. 412, the “motion, related 

papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.”). The 

written motion and response were, however, not sealed. We hereby order that Appellate Exhibits XII and XIII be 

sealed. We order record of trial pages 222–225, wherein the military judge addresses the Mil. R. Evid. 412 motion, 

be sealed. We also order that the Government remove these exhibits and pages from all other copies of the record of 

trial, as required by Air Force Manual 51-203, Records of Trial, ¶ 6.3.4 (27 June 2013). 

Additionally, we note that Prosecution Exhibits 1, 2, 3, 5, and 6, and Appellate Exhibits VII, XV, XIX and 

XL involve sensitive victim images. We order that these exhibits be sealed and removed from all but the original 

copy of the record of trial. See Air Force Manual 51-203, Records of Trial, ¶ 6.3 (27 June 2013).
3 ACM 38755

I. Presence of Court Members

After challenges and excusals, trial in this case began with five court members. 

Government counsel made an opening statement and in doing so played the video clip in 

which Appellant touched and kissed the victim’s exposed buttocks. The video was 38 

seconds in length and had been previously admitted without objection. The Defense made 

its opening statement. Then, as the Government was calling its first witness, one court 

member disclosed that her husband had worked for the Defense Computer Forensics 

Laboratory (DCFL). This led to individual voir dire of the member, a Defense challenge 

for cause against her, and a Defense motion for mistrial based on grounds that the court 

member might have tainted the remaining panel. The military judge denied the motion for 

mistrial, but granted the Defense challenge for cause and excused the member. The 

Defense then moved again for mistrial, on grounds that obtaining new members and 

proceeding in accordance with Article 29(b), UCMJ, 10 U.S.C. § 829(b) and Rule for 

Courts-Martial (R.C.M.) 805(d)(1) would result in “manifest injustice.” The military judge 

denied this motion for mistrial.

The next day, trial resumed with four new members properly detailed by the 

convening authority. In the absence of the original panel members, the new members 

received preliminary instructions and voir dire. Upon challenge, one of the four new 

members was excused. The opening statements of both parties to the original panel had 

been recorded, and these were played to the three new members, along with the 38-second 

video clip. The original members were then called, and trial proceeded to its conclusion 

with a panel of seven. Appellant argues before us now that his right to due process was 

violated when the military judge conducted trial sessions with new panel members in the 

absence of the four original members.

“The constitutionality of an act of Congress is a question of law that we review de 

novo.” United States v. Vasquez, 72 M.J. 13, 17 (C.A.A.F. 2013) (quoting United States 

v. Ali, 71 M.J. 256, 265 (C.A.A.F. 2012)). To determine if “a statute is ‘unconstitutional 

as applied,’ we conduct a fact-specific inquiry.” Id.

Article 29(b), UCMJ, sets forth the procedure for addressing the loss of quorum at 

a general court-martial.

Whenever a general court-martial, other than a general courtmartial composed of a military judge only, is reduced below 

five members, the trial may not proceed unless the convening 

authority details new members sufficient in number to provide 

not less than five members. The trial may proceed with the 

new members present after the recorded evidence previously 

introduced before the members of the court has been read to 
4 ACM 38755

the court in the presence of the military judge, the accused, and 

counsel for both sides.

R.C.M. 805(d)(1) implements this statute as follows:

Members. When after presentation of evidence on the merits 

has begun, a new member is detailed under R.C.M. 

505(c)(2)(B), trial may not proceed unless the testimony and 

evidence previously admitted on the merits, if recorded 

verbatim, is read to the new member, or, if not recorded 

verbatim, and in the absence of a stipulation as to such 

testimony and evidence, the trial proceeds as if no evidence has 

been presented.

In arguing that the military judge erred by conducting sessions in the absence of 

previously detailed members, Appellant neither cites nor attempts to distinguish his case 

from Vasquez—the decision which is in our view controlling. As in the present case, 

Vasquez involved a general court-martial where the panel fell below five members after 

trial was underway, and where the trial judge, without the original members, impaneled 

new members and presented them with opening statements and evidence received by the 

original members. 72 M.J. at 16. As does Appellant now, Vasquez argued that the military 

judge violated his rights by proceeding in accordance with Article 29(b), UCMJ, and 

R.C.M. 805(d)(1). 

The facts supporting Vasquez were more compelling than those favoring Appellant 

now. The Vasquez members were deep into the trial—having heard from five of the 

government’s six witnesses—when their numbers fell below quorum. 72 M.J. at 16. Even

so, our superior court upheld the conviction, finding no violation of the appellant’s rights. 

Id. at 21. Observing that the military judge had “scrupulously followed the procedures 

established by Congress in Article 29(b), UCMJ, as implemented by the President under 

R.C.M. 805(d)(1),” the court held that the military judge did not abuse his discretion in 

declining to declare a mistrial. Id. at 17, 19. Rejecting any suggestion that “the statutory 

scheme is unconstitutional on its face,” the court also found that Vasquez had not met his 

burden of showing that Article 29(b), UCMJ, was unconstitutional as applied to him. Id.

at 17, 21. 

Appellant’s present assignment of error includes an argument that the trial judge 

violated R.C.M. 805(b)—which states that, absent certain exceptions, “no court-martial 

proceeding may take place in the absence of any detailed member.” We disagree. Among 

the exceptions specified by R.C.M. 805(b) are instances in which any “member has been 

excused under R.C.M. 505 or 912(f).” Rule for Courts-Martial 505 addresses changes of 

court members, military judge, and counsel in general; and speaks directly to the 

replacement of court members when, as a result of challenges, the panel is reduced below 
5 ACM 38755

a quorum. Rule for Courts-Martial 912(f) involves challenges and removal of court 

members for cause. We read those provisions to allow for the absence of court members 

under the circumstances of Appellant’s court-martial. In doing so, we note that our 

superior court has pointedly rejected Appellant’s implied argument that an accused has the 

“right to have all members be presented with all evidence in the same way.” Vasquez, 72 

M.J. at 20.

We find the present case to be distinguishable from Vasquez in no respect favorable 

to Appellant. We find that, either directly or by necessary implication, Vazquez rejects all 

of Appellant’s arguments before us. We find that the military judge did not abuse his 

discretion in denying the motions for mistrial, and we find that he “scrupulously followed 

the procedures” established by Congress and by the President. See Vasquez, 72 M.J. at 17. 

In so doing, he committed no error, plain or otherwise.

II. Admission of Statements by Appellant

In about November 2012, the victim discovered Appellant had made photos of her 

without permission. As a result of this discovery, she confronted Appellant, and then 

moved out of the house they shared. In June of 2013, while attending sexual assault 

prevention training, the victim decided to report Appellant’s misbehavior in order to protect 

others. 

Once involved, the Air Force Office of Special Investigations (AFOSI) asked the 

victim to contact Appellant as part of a pretext operation. The victim agreed, and, under 

AFOSI guidance, she exchanged with Appellant a series of text messages in which he 

incriminated himself. During their text exchange, the victim also asked Appellant to bring 

his computer and meet her on-base. He agreed, and they met at an on-base coffee shop the 

following day. During this meeting, the victim wore concealed recording equipment 

provided by the AFOSI which captured further admissions by Appellant. At the end of 

this meeting, having obtained search authorization, the AFOSI seized Appellant’s laptop 

computer, an external hard drive, and his cell phone. Found amongst these media were the 

video and other photos of victim’s exposed buttocks.

At trial, the Defense did not seek to exclude admissions made by Appellant while 

texting the victim on the first day of their pretext encounter. The Defense did, however, 

move to suppress statements he made at the coffee shop the following day, along with any 

evidence derived therefrom. Defense counsel contended that, during the coffee shop 

encounter, the victim was acting in a law enforcement capacity and was thus required to 

provide rights warnings before eliciting admissions from him. The military judge denied 

the motion, and Appellant now argues that he erred in doing so. 

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

discretion. United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014). “When there is a 
6 ACM 38755

motion to suppress a statement on the ground that rights’ warnings were not given, we 

review the military judge’s findings of fact on a clearly-erroneous standard, and we review 

conclusions of law de novo.” Id. Whether a questioner was acting or could reasonably be 

considered to be acting in a law enforcement or disciplinary capacity is a question of law 

requiring de novo review. Id. at 361. Article 31, UCMJ, 10 U.S.C. § 831,states in pertinent 

part:

(b) No person subject to this chapter may interrogate, or 

request any statement from an accused or a person suspected 

of an offense without first informing him of the nature of the 

accusation and advising him that he does not have to make any 

statement regarding the offense of which he is accused or 

suspected and that any statement made by him may be used as 

evidence against him in a trial by court-martial.

. . .

(d) No statement obtained from any person in violation of this 

article, or through the use of coercion, unlawful influence, or 

unlawful inducement may be received in evidence against him 

in a trial by court-martial.

“Thus, Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, 

(2) interrogates or requests any statement, (3) from an accused or person suspected of an 

offense, and (4) the statements regard the offense of which the person questioned is accused 

or suspected.” Jones, 73 M.J. at 361.

In Jones, however, our superior court noted that cases involving undercover officials 

and informants involve unique considerations. The court stated, “Because undercover 

officials and informants do not usually place the accused in a position where a reasonable 

person in the accused’s position would feel compelled to reply to questions, . . . logic 

dictates that Article 31(b), UCMJ, would not apply in those situations.” Id. at 361, n.5. 

Modifying its previous ruling in United States v. Duga, 10 M.J. 206 (C.M.A. 1981), the 

Jones court adopted a two-prong test for determining whether statements by an accused to 

informants and undercover officials must be suppressed. The first prong is whether the 

person who conducted the questioning was “‘participating in an official law enforcement 

or disciplinary investigation or inquiry,’ as opposed to having a personal motivation for the 

inquiry.” Id. at 361 (quoting United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000)). 

The second prong applies an objective standard of a reasonable person in the suspect’s 

position to determine whether that person would have concluded that the questioner was 

acting in an official law enforcement or disciplinary capacity. Id. at 362.
7 ACM 38755

In the present case, the military judge made detailed findings of fact and applied the 

Jones analysis. The military judge concluded that, under the first prong, the victim had 

indeed acted in a law enforcement capacity during her communications with Appellant. 

The military judge found, however, that the second prong of Jones had not been met. He 

reasoned that, given the totality of the circumstances, a reasonable person in Appellant’s 

position would not have considered the victim to be acting in an official law enforcement 

or disciplinary capacity. The judge declared:

[The victim] and Senior Airman Kmet had a long history 

together of being close friends. [The victim] met with Senior 

Airman Kmet at a public location which the two of them had 

frequented before under circumstances indicating their 

meeting as friends seeking to resolve a conflict and to give [the 

victim] closure. Nothing about the prior relationship between 

the two, the setting of the meeting or the circumstances 

surrounding the meeting would lead a reasonable person to 

believe that [the victim] was acting in an official law 

enforcement or disciplinary capacity. Accordingly, the 

Defense Motion to Suppress is hereby denied.

Having carefully reviewed the record of trial, we concur with the military judge. 

His findings of fact are supported by the record and are not clearly erroneous. He applied 

the correct law and did not abuse his discretion under the circumstances of this case. We 

reject this assignment of error.

III. Clemency Statement by the Victim

Appellant argues the convening authority improperly considered prejudicial matters 

submitted by the victim during clemency. 

Whether post-trial processing was completed properly is a question of law, which 

this court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. 

App. 2004) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). When reviewing 

post-trial errors, we recognize the convening authority is an appellant’s “best hope for 

sentence relief.” United States v. Lee, 50 M.J. 296, 297 (C.A.A.F. 1999) (quoting United 

States v. Bono, 26 M.J. 240, 243 n.3 (C.M.A. 1988)). The convening authority, not a court 

of criminal appeals, is empowered to grant clemency for equitable reasons. United States 

v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010). “Because of the highly discretionary nature 

of the convening authority’s action on the sentence, we will grant relief if an appellant 

presents ‘some colorable showing of possible prejudice.’” Kho, 54 M.J. at 65 (quoting 

United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)); see also United States v. 

Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005).
8 ACM 38755

Article 60, UCMJ, 10 U.S.C § 860, provides the framework by which a convening 

authority may take action and grant clemency. The statute was recently amended to include 

a subsection (d) authorizing the submission of statements by the victim.4 National Defense 

Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1706, 127 Stat. 672, 960–

61 (2013) (codified as amended at 10 U.S.C. § 860). Article 60, UCMJ, does not restrict 

what a victim may submit, but allows broadly: 

In any case in which findings and sentence have been adjudged 

for an offense that involved a victim, the victim shall be 

provided an opportunity to submit matters for consideration by 

the convening authority or by another person authorized to act 

under this section before the convening authority or such other 

person takes action under this section. 

Article 60(d)(1), UCMJ (emphasis added). 

In the present case, as part of the clemency process, the victim submitted a letter to 

the convening authority discussing impact to her from Appellant’s crimes. Her comments 

included the following: 

The worst part of this whole situation is how this case was 

charged. Without going into anything that would be improper 

for me to say at this point and cause any unnecessary issues for 

the processing of this case I will simply say that I was not 

happy, despite the best efforts of my SVC, with how you and 

your office chose to charge and prosecute this case.

Appellant argues that this comment was improper. Appellant further argues that because 

he objected to this same victim comment when submitting his own clemency matters to the 

convening authority, the Government was obliged to redact the victim’s comment or to 

address it as a legal matter in its Staff Judge Advocate Recommendation (SJAR).5 We are 

not persuaded.

 

4 Article 60(d)(5), UCMJ, 10 U.S.C. § 860(d)(5) defines “victim” as “a person who has suffered a direct physical, 

emotional, or pecuniary harm as a result of a commission of an offense under [the UCMJ].” 

5 Under R.C.M. 1106(d)(4), an SJA is obligated to

state whether, in the staff judge advocate’s opinion, corrective action on the 

findings or sentence should be taken when an allegation of legal error is raised in 

matters submitted under R.C.M. 1105 or when otherwise deemed appropriate by 

the staff judge advocate. The response may consist of a statement of agreement 

or disagreement with the matter raised by the accused. An analysis or rationale 

for the staff judge advocate’s statement, if any, concerning legal error is not 

required. 
9 ACM 38755

We recently addressed a similar challenge in United States v. Pheasant, ACM 

S32237 (A.F. Ct. Crim. App. 16 September 2015) (unpub. op.). There, in submitting 

matters to the convening authority during clemency, a victim made what were arguably 

references to offenses for which Pheasant had not been convicted. In Pheasant, we held 

that the victim’s comments were not inappropriate for consideration by the convening 

authority; and the staff judge advocate (SJA) neither erred in allowing the convening 

authority to consider the matters, nor in declining to address the errors in the SJAR.

We find that the present case is not distinguishable from Pheasant in any way 

favorable to Appellant. As noted above, Article 60(d), UCMJ, does not limit what a victim 

may submit to the convening authority. As sole legal authority for his claim that such 

limits do exist and were violated in his case, Appellant cites Air Force Instruction (AFI) 

51-201, Administration of Military Justice, Figure 9.2, (6 June 2013) (as modified by Air 

Force Guidance Memorandum 2014-01 (25 September 2014)).6 Figure 9.2 is a proposed 

template letter by which the SJA to the convening authority may inform victims of their 

right to submit matters during clemency. Appellant’s theory that the template places 

restrictions upon the rights explicitly granted to victims by Congress is, in our view, 

tenuous. However, even if we accept Appellant’s view that such limits do exist, we find 

no impropriety in any comment made by the victim in this case. The victim’s generalized 

statement of dissatisfaction regarding the manner in which this case was charged and 

prosecuted violated no right of the Appellant, and indeed seems precisely the type of 

expression Article 60(d), UCMJ, was meant to allow.

Here—as in Pheasant and for the reasons stated therein—we find that the SJA did 

not err in presenting the victim’s complete statement to the convening authority, and 

Appellant’s post-trial submissions did not amount to an allegation of legal error requiring 

a response by the SJA. We find no error in the clemency process nor any “colorable 

showing of possible prejudice” to Appellant. See Kho, 54 M.J. at 65.

IV. Instruction to Court Members

 

6 Figure 9.2 states in pertinent part: 

You may submit a statement in writing to [the Convening Authority’s SJA] for 

consideration in advising the Convening Authority. The choice is entirely yours. 

This statement could describe the impact [Appellant’s] crime had on your life. 

You may also discuss whether you believe the Convening Authority should 

approve the findings and sentence or grant some form of clemency. However, 

this statement should not reference any crimes for which [Appellant] was not 

convicted of by the court-martial in order to avoid any prejudice to [his] post-trial 

rights.

Air Force Instruction 51-201, Administration of Military Justice, Figure 9.2 (6 June 2013) (as modified by Air Force 

Guidance Memorandum 2014-01 (25 September 2014)).
10 ACM 38755

In preliminary instructions prior to voir dire, and again before their deliberations on 

findings, the military judge gave the court members the standard Air Force instruction on 

reasonable doubt. That instruction includes the following sentence: “If, based on your 

consideration of the evidence you are firmly convinced that the accused is guilty of the 

offenses charged, you must find him guilty.” (Emphasis added). Appellant made no 

objection to this instruction at trial. On appeal Appellant now argues that the instruction—

particularly its use of the word “must”—was erroneous.

It is the military judge’s duty to properly instruct the members at trial. See United 

States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001). A military judge’s decision to 

provide an instruction is reviewed for an abuse of discretion. United States v. Maxwell, 45 

M.J. 406, 424 (C.A.A.F. 1996). However, “[t]he propriety of the instructions given by the 

military judge is reviewed de novo.” Quintanilla, 56 M.J. at 83. Moreover, where the 

defense has made no challenge at trial to the instruction contested on appeal, the matter has 

been forfeited absent plain error.7 See R.C.M. 920(f). If we find error, we must then 

determine whether the error was harmless beyond a reasonable doubt. United States v. 

Medina, 69 M.J. 462, 465 (2011).

The language used by the military judge in Appellant’s case is—and has been for 

many years—an accepted reasonable doubt instruction used in Air Force courts-martial. 

See, e.g., United States v. Sanchez, 50 M.J. 506, 509–10 (A.F. Ct. Crim. App. 1999); see 

also United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984) (upholding similar 

language). It was in fact offered by our superior court as a suggested instruction. United 

States v. Meeks, 41 M.J. 150, 157 n.2 (C.M.A. 1994) (citing Federal Judicial Center, Pattern 

Criminal Jury Instruction 17–18 (1987)). We do not find the military judge committed 

error, plain or otherwise, in giving the instruction.

Conclusion

The findings and sentence are correct in law and fact, and no error materially 

prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 

10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court

 

7 Although we recognize that the rule speaks of “waiver,” this is, in fact, forfeiture. United States. v. Sousa, 72 M.J. 

643, 651–52 (A.F. Ct. Crim. App. 2013).