UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39047

________________________

UNITED STATES

Appellee

v.

Elijah M. LANGHORNE

Staff Sergeant (E-5), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 5 December 2017

________________________

Military Judge: Shelly W. Schools (arraignment); Vance H. Spath.

Approved sentence: Dishonorable discharge, confinement for 12 years, 

forfeiture of all pay and allowances, and reduction to E-1. Sentence adjudged 20 November 2015 by GCM convened at Tinker Air Force Base, 

Oklahoma. 

For Appellant: Major Annie W. Morgan, USAF; Brian L. Mizer, Esquire.

For Appellee: Major Matthew J. Neil, USAF; Major Mary Ellen Payne, 

USAF; Gerald R. Bruce, Esquire.

Before DREW, MAYBERRY, and DENNIS, Appellate Military Judges.

Chief Judge DREW delivered the opinion of the court, in which Senior 

Judge MAYBERRY and Judge DENNIS joined.

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PUBLISHED OPINION OF THE COURT

________________________

DREW, Chief Judge:

Appellant entered mixed pleas at his court-martial. A general courtmartial with officer members convicted Appellant, contrary to his pleas, of 

two specifications of conspiracy to commit premeditated murder of MC, in vi-
United States v. Langhorne, No. ACM 39047

2

olation of Article 81, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 881; one specification of aggravated arson of an inhabited dwelling, in violation of Article 126, UCMJ, 10 U.S.C. § 926; and one specification of reckless 

endangerment by wantonly setting fire to a dwelling, likely to cause death or 

grievous bodily harm to SB and CL, in violation of Article 134, UCMJ, 10 

U.S.C. § 934.1 The military judge accepted Appellant’s pleas and found him 

guilty of one specification of divers wrongful use of anabolic steroids and one 

specification of wrongful distribution of anabolic steroids, both in violation of 

Article 112a, UCMJ, 10 U.S.C. § 912a. The court members sentenced Appellant to a dishonorable discharge, confinement for 12 years, forfeiture of all 

pay and allowances, and reduction to the grade of E-1. The convening authority approved the sentence as adjudged.

Appellant raises ten issues on appeal: (1) whether the military judge 

abused his discretion in finding that the government’s warrantless search of 

Appellant’s Facebook account did not violate the Fourth Amendment;2

(2) whether the military judge abused his discretion in denying a Defense request to impeach a witness by contradiction; (3) whether the military judge 

abused his discretion in denying a Defense request to introduce evidence of 

Appellant’s character for helpfulness; (4) whether the offense of reckless endangerment by setting fire to a dwelling, in violation of Article 134, UCMJ, 

was preempted by Article 126, UCMJ; (5) whether the military judge erred in 

denying a Defense request for an instruction on a lesser included offense of 

simple arson; (6) whether the military judge erred in instructing on the elements of aggravated arson of an inhabited dwelling; (7) whether the military 

judge erred in declining to give a Defense-requested instruction in response 

to a court member question during deliberations; (8) whether the evidence is 

factually sufficient to establish that Appellant did not abandon the conspiracy to commit premeditated murder alleged in Specification 2 of Charge II; 

(9) whether the military judge abused his discretion in determining that the 

authorization to seize Appellant’s cell phone was sufficiently particular;3 and 

 

1 The court members acquitted Appellant of attempted premeditated murder of MC.

2 U.S. CONST. amend. IV.

3 The Prosecution did not offer any evidence obtained from Appellant’s cell phone. A 

review of cell phone text messages that were admitted in Prosecution Exhibit 27 

readily reveals that they were taken from a third party electronic device, as each 

message is annotated as having been received from or sent to Appellant’s number. 

Moreover, the Defense specifically indicated that it had no objection to the exhibit. 

This issue does not require further discussion or warrant relief. See United States v. 

Matias, 25 M.J. 356, 361 (C.M.A. 1987).
United States v. Langhorne, No. ACM 39047

3

(10) whether the military judge abused his discretion in holding that the 

search of Appellant’s cell phone did not violate the Fourth Amendment.4

Although not raised by Appellant, we find that the court-martial order incorrectly reflects Appellant’s plea to Charge III and direct that the convening 

authority substitute a corrected court-martial order.5 In addition, we note 

that the time required to complete the appellate review of Appellant’s case 

has exceeded the presumptively reasonable period of 18 months since the 

case was docketed with this court, as established in United States v. Moreno, 

63 M.J. 129, 142 (C.A.A.F. 2006). We nevertheless find no errors materially 

prejudicial to Appellant’s substantial rights and thus affirm the findings and 

sentence.

I. BACKGROUND

Sometime in 2013, Appellant entered into an agreement with a fellow security forces member in his squadron, Staff Sergeant (SSgt) Steven Bailey, to 

murder MC, a female civilian and the mother of SSgt Bailey’s child, in exchange for money. SSgt Bailey met MC in 2011 and she gave birth to 

SSgt Bailey’s daughter, SB, in 2012. Previously engaged to be married, 

SSgt Bailey and MC broke up shortly after SB’s birth. An intense and protracted custody battle for SB ensued and extended over the following three 

years. MC, who had temporary custody of SB, was ultimately granted permanent custody of SB. SSgt Bailey expressed anger about the custody situation to members of his squadron, including Appellant. SSgt Bailey alleged 

that MC was physically abusing his daughter.

SSgt Bailey agreed to give Appellant $20,000 to murder MC. He paid Appellant $2,600 in cash up front and another $600 in gift cards and promised 

to pay the remainder after Appellant killed MC. Appellant and SSgt Bailey 

discussed several different ways that Appellant might carry out the murder, 

including arson of MC’s house, killing her during a home invasion, shooting 

 

4 Id.

5 The Report of Result of Trial attached to the Staff Judge Advocate’s Recommendation (SJAR) to the convening authority contains the same error. However, the error 

only extended to the Charge and not it’s underlying specifications, which correctly 

reflect Appellant’s guilty pleas. Neither the Addendum to the SJAR nor Appellant’s 

submissions personally or through counsel noted the administrative error, although 

his trial defense counsel correctly noted that Appellant pled guilty to both specifications. Under these circumstances, we do not believe that the administrative error 

prejudiced Appellant’s post-trial processing, to include his opportunity for clemency 

from the convening authority.
United States v. Langhorne, No. ACM 39047

4

her with a rifle from a distance, launching a grenade through her window, 

and killing her in her car in a drive-by shooting. SSgt Bailey’s one stipulation 

was that Appellant couldn’t hurt SB, but SSgt Bailey didn’t care about MC’s 

son or mother.

On 11 January 2014, Appellant purchased a propane torch and some other materials from a local hardware store. On 17 January 2014, at approximately 0300, Appellant carried the torch through the wooded area behind 

MC’s house in a rural town near Tinker Air Force Base, Oklahoma. Inside

her home, MC and her two children, including SB, were asleep. Appellant 

wedged the torch against the back of the house, up against the one section of 

the structure that he knew—based on his previous experience as a building 

contractor—was clad with flammable materials. He set the torch alight and 

retreated back into the woods. He watched from a distance for 15 to 20 

minutes and then left.

At some point after Appellant set the fire, MC awoke to SB crying for a 

bottle. MC smelled smoke. She looked around the inside of the house but 

couldn’t find the source of the smell. She quickly bundled up her children and 

fled to a nearby gas station where she called the police. A police officer arrived at the home around 0320 and found the inside of the house filling with 

smoke and the outside back of the house on fire. Shortly thereafter the fire 

department arrived. Either the police officer or the fire department extinguished the fire, leaving the back of the home damaged, but otherwise livable.

SSgt Bailey was upset with Appellant that he had set the fire while SB 

was inside. However, they continued their plotting to kill MC. They exchanged coded text messages and met in person to discuss ways to kill MC 

while SB was not present and SSgt Bailey had an alibi. In July 2014, Appellant followed MC and her mother in a white pickup truck after they dropped 

off SB with SSgt Bailey as part of a scheduled custody exchange. Suspicious 

of the truck that was aggressively following them despite their attempts to 

lose it, SB and her mother called the local police in a panicked state. A police 

officer gave them instructions to pull onto a certain road where he would intercept the truck. The officer stopped Appellant and asked him what he was 

doing in the area. When Appellant produced his military ID, the officer, who 

was aware of SSgt Bailey’s and MC’s strained custody situation and 

SSgt Bailey’s military status, asked Appellant if he knew SSgt Bailey. Appellant lied and said he didn’t. The officer didn’t believe him but hadn’t personally observed anything that would give him a basis to arrest Appellant, so he 

warned Appellant to stay away from MC.

Spooked by being pulled over by the local police, Appellant told 

SSgt Bailey that he was no longer interested in killing MC in her rural town. 
United States v. Langhorne, No. ACM 39047

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However, Appellant and SSgt Bailey continued to plot ways to kill MC. They 

discussed killing MC in a parking garage in Oklahoma City near the courthouse, as she arrived for a custody hearing. Appellant rented a car to surveil 

the area without having his own vehicle noticed. They also stole license 

plates from another car to reduce the chances of a vehicle tied to them being 

observed during their activities in support of the murder plot. 

By March of 2015, SSgt Bailey was frustrated that Appellant had not yet 

killed MC, and so he approached another military member friend, whose 

brother had been imprisoned. SSgt Bailey thought that the brother would 

know someone who could carry out the murder if Appellant didn’t take care of 

it soon. Unbeknownst to SSgt Bailey, the friend reported SSgt Bailey’s request to the Air Force Office of Special Investigations (AFOSI), who arranged 

for the friend to wear a recording device during several conversations with 

SSgt Bailey. In the meantime, Appellant, who was scheduled to deploy soon, 

agreed to provide SSgt Bailey with the .22 caliber Sig Sauer Mosquito pistol 

that he had bought at the Base Exchange, along with a threaded adapter and 

a muzzle suppressor he had fashioned out of an automobile oil filter. After 

making telephonic arrangements with an undercover agent he believed to be 

a hit man arranged by his friend, SSgt Bailey dropped a bag at an agreedupon location. The bag contained Appellant’s pistol and suppressor, along 

with bullets, a laser sight, a bullet resistant vest, and a dossier of information 

about MC. After the undercover agent retrieved the bag, SSgt Bailey was apprehended and he confessed to much of the murder plot and implicated Appellant.

The following day, 30 March 2015, AFOSI brought Appellant in for questioning. After initially denying any involvement with the conspiracy and arson, he eventually admitted his role, although he claimed that at no time did 

he actually intend to kill MC or anyone else. He asserted that he had intentionally done a poor job in an attempt to get SSgt Bailey to change his mind 

about killing MC. Appellant consented to AFOSI searching his cellphone and 

its contents. He gave the agents the password to his phone and they made a 

forensic extraction of the contents for later analysis. Appellant also consented 

to a search of his truck, where AFOSI found a bag filled with various ski 

masks, gloves, and a hunting knife. Appellant said that SSgt Bailey gave it to 

him and they called it the “murder bag.” Appellant also gave AFOSI the loaded .45 caliber Glock pistol that he kept in his truck.

II. DISCUSSION

A. Evidence from Appellant’s Facebook Account

Over Appellant’s objection, the Prosecution introduced messages from his

Facebook account. AFOSI investigators accessed the account by using the us-
United States v. Langhorne, No. ACM 39047

6

er name and password that Appellant provided to a third person over a monitored telephone line from Appellant’s pretrial confinement facility. Appellant 

asserts that the access of his Facebook account constituted a warrantless illegal search. 

Before his trial, Appellant was confined in a local civilian facility where 

he had access to a facility phone set up for confinees’ use. In accordance with 

the facility’s standard procedures, an automated recording notifies the confinee and the recipient of the call that the call is subject to monitoring and recording.6 The notice can be optionally suppressed by pressing “1” after it begins. Appellant placed a number of calls from the confinement facility to his 

supervisor, Technical Sergeant (TSgt) PF. During one of the calls on 7 April 

2015, Appellant (APP) had the following recorded discussion with TSgt PF 

about his Facebook account:

System: Hello, this is a pre-paid collect call from

APP: Elijah Langhorne

System: an inmate of the Potawatomie County Jail. Threeway or call waiting is not allowed and may automatically disconnect this call. This call is also subject to 

being recorded or monitored, except for privileged 

communications between attorney and client.

. . . .

APP: Hey, do you think I should change the password on 

my Facebook account since my phone was logged into it and OSI’s got it? 

TSgt PF: Yep, I definitely would.

APP: Okay, uh, is that something you’d be willing to do for 

me?

TSgt PF: Uh, yeah, . . . go ahead.

APP: Okay, the user name is just my email [. . .]. The 

password is [. . .].

TSgt PF: Okay.

APP: And if you could just add like, uh, if you could 

change it to [. . .], that’s what I’d prefer it to be.

 

6 Calls to a confinee’s attorney are not recorded or monitored if prior arrangements 

have been made for a privileged attorney call.
United States v. Langhorne, No. ACM 39047

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TSgt PF: Okay, yeah. I’ll do it.

In a subsequent call the next day, Appellant asked TSgt PF to retrieve 

and throw away a license plate from Appellant’s truck that he had stashed

under his back seat. TSgt PF agreed. It was the stolen plate that Appellant 

had been using during his murder plot reconnaissance missions. On 6 May 

2015, AFOSI learned about Appellant’s calls to TSgt PF after TSgt PF’s supervisor reported that TSgt PF had spoken to him about Appellant’s request 

to dispose of the license plate. Over the next several days, AFOSI requested 

and received copies of the recorded conversations from the confinement facility. After reviewing them, AFOSI sought and received a search authorization 

from a military magistrate to search Appellant’s truck, where they found the 

license plate still under the back seat. Without seeking a military search authorization, civilian search warrant, or consent from Appellant, AFOSI accessed Appellant’s online Facebook account from 11–13 May 2015. They used

the account name and password7 that Appellant disclosed to TSgt PF over 

the recorded phone call. They copied several messages from the Facebook account into a Word document. 

We review a military judge’s ruling on the admissibility of evidence for an 

abuse of discretion. United States v. Nieto, 76 M.J. 101, 105 (C.A.A.F. 2017) 

(denial of a motion to suppress) (citing United States v. Hoffmann, 75 M.J. 

120, 124 (C.A.A.F. 2016)); United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 

2010) (decision to admit or exclude evidence) (citing United States v. Manns, 

54 M.J. 164, 166 (C.A.A.F. 2000)). However, we review any conclusions of law

de novo. United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F. 2009). A military judge abuses his discretion when (1) the findings of fact upon which he 

bases his ruling are not supported by the evidence of record; (2) he uses incorrect legal principles; or (3) his application of the correct legal principles to the 

facts is clearly unreasonable. United States v. Ellis, 68 M.J. 341, 344 

(C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 

2008)). “The abuse of discretion standard is a strict one, calling for more than 

a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. Lloyd, 69 

M.J. 95, 99 (C.A.A.F. 2010) (citations and quotation marks omitted). “[T]he 

abuse of discretion standard of review recognizes that a judge has a range of 

choices and will not be reversed so long as the decision remains within that 

range.” United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). 

 

7 The record does not reflect whether the password AFOSI successfully used was Appellant’s old password or the new one to which he had asked TSgt PF to change it.
United States v. Langhorne, No. ACM 39047

8

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated.” U.S. Const. amend. IV. Under 

the Fourth Amendment, a “search” occurs when “the government violates a 

subjective expectation of privacy that society recognizes as reasonable.” Kyllo 

v. United States, 533 U.S. 27, 33 (2001). Under the third-party doctrine, “a 

person has no legitimate expectation of privacy in information he voluntarily 

turns over to third parties . . . even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence 

placed in the third party will not be betrayed.” Smith v. Maryland, 442 U.S. 

735, 743–44 (1979) (citing United States v. Miller, 425 U.S. 435, 442–44

(1976)). See also United States v. Larson, 66 M.J. 212, 215 (C.A.A.F. 2008);

United States v. Caira, 833 F.3d 803, 806 (7th Cir. 2016). When Appellant 

voluntarily revealed his Facebook username and password to TSgt PF, he no 

longer had a reasonable expectation of privacy in his Facebook account. The 

fact that Appellant was aware that his telephone conversation was being recorded and subject to monitoring further cements the conclusion that when 

AFOSI used the recorded information to access and copy his Facebook messages, the investigator’s actions did not constitute a “search” under the 

Fourth Amendment, since they did not violate a reasonable expectation of 

privacy. Accordingly, the military judge did not abuse his discretion when he 

overruled the Defense objection and admitted Appellant’s Facebook messages.

B. Impeachment by Contradiction

At trial, defense counsel sought to introduce extrinsic evidence that 

SSgt Bailey lied on three previous occasions. Specifically that he had falsely 

claimed that MC had cancer, that he had falsely claimed to being disabled 

due to a metal plate in his head, and that he had intentionally failed his Personnel Reliability Program (PRP) qualifications. The military judge ruled 

that defense counsel was improperly attempting to introduce specific instances of conduct in order to attack SSgt Bailey’s character for truthfulness. As he 

did at trial, Appellant contends that his counsel was actually attempting to 

impeach SSgt Bailey by contradiction. We review a military judge’s decision 

to exclude or admit impeachment evidence for abuse of discretion. United 

States v. Bins, 43 M.J. 79, 83 (C.A.A.F. 1995). 

During the extensive cross-examination of SSgt Bailey, the senior defense 

counsel impeached him with prior inconsistent statements, a bad character 

for truthfulness, previous instances in which he had minimized his criminal 

culpability in his discussions with AFOSI, and a motive to misrepresent to 

preserve his pretrial agreement sentence limitation. Towards the end of the 

cross-examination, the defense counsel asked SSgt Bailey if he had ever told 

his unit that MC had cancer. He admitted he had. The defense counsel then 
United States v. Langhorne, No. ACM 39047

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asked him about making the false disability claim and intentionally failing 

his PRP qualifications. SSgt Bailey denied both instances. None of the purportedly untruthful statements were material to any of the allegations facing 

Appellant at his trial and none of them were raised during SSgt Bailey’s direct testimony.

The military judge denied the Defense requests to introduce extrinsic evidence based on Mil. R. Evid. 608(b):

Specific Instances of Conduct. Except for a criminal conviction 

under Mil. R. Evid. 609, extrinsic evidence is not admissible to 

prove specific instances of a witness’s conduct in order to attack 

or support the witness’s character for truthfulness. The military judge may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the witness . . . .

Appellant contends that the military judge erred because he should have 

permitted the extrinsic evidence, not as character evidence, but as a form of 

impeachment by contradiction. Appellant misunderstands how and when to 

use impeachment by contradiction. 

The Military Rules of Evidence explicitly permit impeachment by contradiction only of an accused—in Mil. R. Evid. 304(e)(1), through the use of a 

suppressed involuntary statement, and in Mil. R. Evid. 311(c)(1), through the 

use of suppressed evidence obtained as a result of an unlawful search or seizure. However, the Military Rules of Evidence, like their federal counterpart, 

are not exhaustive. Other techniques of impeachment, including impeachment by contradiction of witnesses generally, while not explicitly codified, are 

nevertheless permissible. MCM, App. 22, at A22-55. 

Impeachment by contradiction, when proper, allows a party to introduce 

extrinsic evidence to contradict the testimony of a witness. By definition, it 

does not apply to bolster a concession made in cross-examination, as the extrinsic evidence must contradict the testimony. In the military courts, “[t]he 

normal rule of impeachment by contradiction is that a witness may not be 

contradicted by extrinsic evidence on a collateral matter.” United States v. 

Banker, 15 M.J. 207, 211 (C.M.A. 1983). However, an exception to that rule 

allows for the introduction of extrinsic evidence to impeach by contradiction a 

collateral matter raised during direct examination. Id.; United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir.), cert. denied, 513 U.S. 826 (1994). “A matter is collateral if the fact could not be shown in evidence for any purpose independent of the contradiction.” United States v. Harris, 542 F.2d 1283, 

1306–07 (7th Cir. 1976). Evidence of a witness’s bias, prejudice, or motive to 

misrepresent is never collateral and may be proven by extrinsic evidence. 

Mil. R. Evid. 608(c).
United States v. Langhorne, No. ACM 39047

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Defense counsel attempted to open the door to extrinsic evidence by raising matters for the first time on cross-examination. The matters offered by 

Appellant did not tend to establish SSgt Bailey’s bias, prejudice, or motive to 

misrepresent. They were not otherwise relevant or admissible for any purpose other than to contradict SSgt Bailey’s denial of specific instances of untruthfulness and were therefore collateral. Even if SSgt Bailey’s lying to his 

unit about MC having cancer had not been collateral, his admission of the 

fact foreclosed defense counsel’s ability to introduce extrinsic evidence to contradict it. As to the other specific instances that the Defense asserted tended 

to show that SSgt Bailey was untruthful, defense counsel was stuck with 

SSgt Bailey’s denial and neither Mil. R. Evid. 608(b) nor impeachment by 

contradiction allowed the Defense to introduce extrinsic evidence. Accordingly, the military judge did not abuse his discretion.

C. “Character for Helpfulness” Evidence

The Defense sought to introduce a number of affidavits attesting to Appellant’s “character for helpfulness.” As stated on the record, the Defense theory 

was that Appellant was being “helpful” by going along with SSgt Bailey’s requests to assist him in killing MC. That theory appears to be strikingly similar to the Prosecution’s theory that Appellant was indeed trying to help 

SSgt Bailey kill MC, specifically by conspiring with him to commit premeditated murder. However, in the Defense version, Appellant was trying to help 

his friend by bringing him to his senses, in an attempt to convince him not to 

pursue his murderous plans.

Military judges have broad latitude to employ rules of evidence to exclude 

evidence, but an accused has a constitutional right to “a meaningful opportunity to present a complete defense.” United States v. Gaddis, 70 M.J. 248, 

252 (C.A.A.F. 2011) (quoting Holmes v. South Carolina, 547 U.S. 319, 324, 

(2006)). Such a defense could potentially involve the introduction of character 

evidence under Mil. R. Evid. 404(a)(2)(A), but, like all other evidence, it must 

first be relevant under Mil. R. Evid. 401, that is, it must have a “tendency to 

make a fact more or less probable than it would be without the evidence, and 

. . . the fact [must be] of consequence in determining the action.”

While the Defense may very well have been correct that Appellant has a 

“helpful” character, the military judge did not abuse his discretion in determining that it was not a pertinent character trait under Mil. R. Evid. 401 and 

404(a)(2)(A).

D. Preemption

Appellant contends that the Specification of Charge V—alleging reckless 

endangerment of MC’s two minor children by setting fire to their dwelling 

under clauses 1 and 2 of Article 134, UCMJ—was preempted by the Specifi-
United States v. Langhorne, No. ACM 39047

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cation of Charge IV—alleging aggravated arson of the same dwelling under 

Article 126. The preemption doctrine prohibits application of Article 134 to 

conduct covered by Articles 80 through 132. MCM, pt. IV, ¶ 60.c.(5)(a). We 

review questions of preemption de novo. United States v. Benitez, 65 M.J. 

827, 828 (A.F. Ct. Crim. App. 2007). 

The Court of Appeals for the Armed Forces (CAAF) has long placed an 

additional requirement on the application of the preemption doctrine that has 

greatly restricted its applicability:

[S]imply because the offense charged under Article 134, UCMJ, 

embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine. In 

addition, it must be shown that Congress intended the other 

punitive article to cover a class of offenses in a complete way.

United States v. Anderson, 68 M.J. 378, 386–87 (C.A.A.F. 2010) (citing United 

States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979)) (alteration in original). The 

preemption doctrine “applies only when (1) Congress intended to limit prosecution for . . . a particular area of misconduct to offenses defined in specific 

articles of the Code, and (2) the offense charged is composed of a residuum of 

elements of a specific offense.” United States v. Curry, 35 M.J. 359, 360–61 

(C.M.A. 1992) (quotation marks and citations omitted) (ellipsis in original). 

The military judge correctly instructed the members that the elements of 

the Specification of Charge IV, aggravated arson, in violation of Article 126

are:

(1) That on or about 17 January 2014, at or near . . . , Oklahoma, the accused set on fire an inhabited dwelling, that is:

the residence of [MC], . . . , Oklahoma, which was the property of [MC];

(2) That the property of [MC], . . . , Oklahoma, was of a value of 

about $70,000 or of some lesser value in which case the 

finding should be in the lesser amount; and 

(3) That the act was willful and malicious.

The military judge further instructed the members that the elements of 

the Specification of Charge V, reckless endangerment, in violation of Article 

134 are:

(1) That on or about 17 January 2014, at or near . . . , Oklahoma, the accused did engage in conduct, to wit: set on fire the 

dwelling located at . . . , Oklahoma; 

(2) That the conduct was wrongful and wanton;
United States v. Langhorne, No. ACM 39047

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(3) That the conduct was likely to produce death or grievous

bodily harm to another person; specifically, [SB] and [CL]; 

and

(4) That, under the circumstances, the conduct of the accused

was to the prejudice of good order and discipline in the

armed forces and was of a nature to bring discredit upon 

the armed forces. 

While Appellant asserts that Congress “occupied the field” of reckless endangerment by setting fire to a dwelling by setting forth aggravated arson offenses in Article 126, he offers no evidence from the legislative history or otherwise to establish his position. Furthermore, a simple review of the elements 

of reckless endangerment under Article 134 clearly establishes that the Article 134 offense is not composed of a residuum of elements of the Article 126 

offense. Furthermore, the two offenses address different societal concerns. 

Reckless endangerment, an offense against persons, contains the additional 

element that the conduct alleged was likely to produce death or grievous bodily harm to another person, whereas aggravated arson, an offense against 

property, does not. In conclusion, Article 134 reckless endangerment is not 

preempted by Article 126.

E. Instructions

1. Standard of Review

We review issues involving a failure to give a required instruction de novo. United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005). An instruction on 

the elements of each offense charged is a required instruction. Rule for 

Courts-Martial (R.C.M.) 920(e)(1). An instruction on each lesser included offense in issue is a required instruction. R.C.M. 920(e)(2).

A matter is “in issue” when some evidence, without regard to 

its source or credibility, has been admitted upon which members might rely if they choose. An instruction of a lesser included offense is proper when an element from the charged offense 

which distinguishes that offense from the lesser offense is in 

dispute.

R.C.M. 920, Discussion. “The military judge has a duty to instruct sua sponte 

on all lesser-included offenses reasonably raised by the evidence.” Id. (quoting United States v. Griffin, 50 M.J. 480, 481 (C.A.A.F. 1999)).

An accused is entitled to have a court-martial consider all reasonable alternatives to guilt. Toward this end, as long as an accused can show “some evidence” that “reasonably raises” the 

applicability of a lesser included offense, the military judge 

must instruct the panel on that lesser included offense. Evi-
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13

dence “reasonably raises” a lesser included offense if it could 

cause members to “attach credit” or rely upon it if they so 

choose. Finally, any doubt whether the evidence is sufficient to 

raise the need to instruct on a lesser-included offense must be 

resolved in favor of the accused.

Bean, 62 M.J. at 266 (quotation marks and citations omitted). “A lesserincluded offense instruction is only proper where the charged greater offense 

requires the jury to find a disputed factual element which is not required for 

conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 

343, 349–50 (1965) (citations omitted).

2. Waiver versus Forfeiture in the Context of Instructions

As the CAAF has stated:

Waiver is different from forfeiture. Whereas forfeiture is the 

failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. 

The distinction between the terms is important. If an appellant 

has forfeited a right by failing to raise it at trial, we review for 

plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not 

be raised on appeal.

United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quotation marks 

and citations omitted); see also United States v. Ahern, 76 M.J. 194, 197

(C.A.A.F. 2017) (appellate courts “do not review waived issues because a valid

waiver leaves no error to correct on appeal.”). However, we recognize that, 

unlike the CAAF, this court is permitted, under Article 66(c), UCMJ, 10 

U.S.C. § 866(c), to review issues affirmatively waived by an appellant at trial.

United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (“CCAs are required 

to assess the entire record to determine whether to leave an accused’s waiver

intact, or to correct the error.”).

Generally, failure to object to an instruction constitutes forfeiture of the 

issue, notwithstanding the use of the term “waiver” in R.C.M. 920(f). “Failure 

to object to an instruction or to omission of an instruction before the members 

close to deliberate constitutes waiver of the objection in the absence of plain 

error.” R.C.M. 920(f); see Ahern, 76 M.J. at 197 (acknowledging R.C.M. 920(f) 

uses the word “waiver” but actually means “forfeiture”). However, an affirmative relinquishment of any objection to an instruction constitutes actual 

waiver. Cf. United States v. Campos, 67 M.J. 330, 332–33 (C.A.A.F. 2009)

(“While circumstances may arise where a ‘no objection’ statement by a defense attorney is not enough to demonstrate an intentional relinquishment of 
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a known right, the record in this case does in fact reflect such a relinquishment.”).

3. Instructions Challenged on Appeal

a. Lesser Included Offense of Simple Arson

At trial, Appellant requested that the military judge instruct the members that simple arson was an available lesser included offense of the aggravated arson offense alleged in the Specification of Charge IV. After initially 

indicating that he would so instruct, the military judge reconsidered and denied the Defense request.

The elements of aggravated arson of an inhabited dwelling are:

(1) That the accused burned or set on fire an inhabited dwelling; 

(2) That this dwelling belonged to a certain person and was of a 

certain value; and 

(3) That the act was willful and malicious.

MCM, pt. IV, ¶ 52.b.(1)(a) (emphasis added).

The elements of simple arson are:

(1) That the accused burned or set fire to certain property of another; 

(2) That the property was of a certain value; and 

(3) That the act was willful and malicious.

MCM, pt. IV, ¶ 52.b.(2) (emphasis added).

Thus, the difference between aggravated arson as alleged and simple arson is that the former requires the property burned or set on fire to be an inhabited dwelling, whereas the latter does not. At trial the Defense did not 

dispute the fact that the structure upon which Appellant placed the lit propane torch was MC’s inhabited dwelling. Indeed, in the Defense’s closing argument they concede that Appellant knew the property was MC’s house. 

What they contested was whether Appellant intended the house to actually 

catch on fire. The only disputed factual element was whether Appellant’s act 

was willful and malicious, the common third element of both offenses. Accordingly, the military judge correctly ruled that the lesser included offense of 

simple arson was not reasonably raised by the evidence.

b. Elements of Aggravated Arson

Appellant contends for the first time on appeal that the MCM and longstanding military precedent incorrectly state the elements of Article 126 ag-
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gravated arson of an inhabited dwelling. Specifically, Appellant asserts that 

rather than the three stated elements, the correct elements are actually the 

five elements of the related offense of aggravated arson of a structure.

Prior to instructing the members on the elements of the offenses, the military judge held an Article 39(a) session with the parties without the court 

members present in order to discuss the draft instructions. In particular, the 

military judge based his aggravated arson instructions on the pattern instructions in the Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-

9 at 706–07 (10 Sep. 2014), and the specifically tailored language requested 

by the Defense. After discussing how the military judge had incorporated the 

Defense-requested language, the senior defense counsel responded “[w]e are 

fine with the way you have it, sir.”

Under the facts in this case, senior defense counsel’s statement, “[w]e are 

fine with the way you have it, sir,” constituted an affirmative waiver of any 

issues Appellant may now have with the military judge’s instruction on the 

elements of aggravated arson. Considering our role pursuant to Article 66(c), 

along with the statutory language of Article 126 and the MCM, we leave Appellant’s waiver of this instructional issue intact. Chin, 75 M.J. at 223.

c. Elements of Conspiracy

In the middle of findings deliberations, the court members requested a 

supplemental instruction from the military judge regarding the overt act alleged as part of Specification 1 of Charge II. After an initial discussion with 

the members, the military judge held a session outside their presence to discuss the supplemental instruction. After considering the views of both parties, the military judge proposed a particular instruction, to which the senior 

defense counsel responded, “that’s perfect.” After bringing the members back 

in and instructing them along the lines discussed, the military judge asked 

both sides if they had any objections to the instruction as given or requests 

for additional instructions. Senior defense counsel responded, “No, your honor.” Appellant now complains that the military judge’s instruction was in error.

We have no reason to fault the military judge’s supplemental instruction 

or relieve Appellant of his clearly articulated affirmative waiver of “that’s 

perfect.” Id.

F. Factual Sufficiency of Conspiracy Conviction

Appellant challenges the factual sufficiency of his conspiracy conviction in 

Specification 2 of Charge II, asserting that the evidence is insufficient to 

prove that he had not withdrawn from the conspiracy. We review factual sufficiency de novo. United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007). 

The test for legal sufficiency of the evidence is “whether, considering the evi-
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dence in the light most favorable to the prosecution, a reasonable factfinder 

could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987); see also United States v. 

Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term “reasonable doubt” does 

not mean that the evidence must be free from conflict. United States v. Lips, 

22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable inference from the evidence of 

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

(C.A.A.F. 2001). The test for factual sufficiency is “whether, after weighing 

the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we are] convinced of the [appellant]’s guilt 

beyond a reasonable doubt.” Turner, 25 M.J. at 325. In conducting this 

unique appellate role, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make 

[our] own independent determination as to whether the evidence constitutes 

proof of each required element beyond a reasonable doubt.” United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The term “reasonable doubt” 

“does not mean that the evidence must be free of conflict.” United States v. 

Galchick, 52 M.J. 815, 818 (A.F. Ct. Crim. App. 2000).

Appellant points to the following text message he sent to SSgt Bailey: 

“Unless something drastic changes I’m not going to be able to help you man. I 

can give you the hammer I’ve got next week if you want it, but that’s all I can 

do.” “Hammer” is the code word Appellant and SSgt Bailey used to refer to 

Appellant’s Mosquito .22 caliber pistol that he purchased at the Base Exchange.

The elements of conspiracy are:

(1) That the accused entered into an agreement with one or 

more persons to commit an offense under the UCMJ; and

(2) That, while the agreement continued to exist, and while the 

accused remained a party to the agreement, the accused or 

at least one of the co-conspirators performed an overt act 

for the purpose of bringing about the object of the conspiracy.

MCM, pt. IV, ¶ 5.b.

Withdrawal. A party to the conspiracy who abandons or withdraws from the agreement to commit the offense before the 

commission of an overt act by any conspirator is not guilty of 

conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct which is wholly inconsistent with 

adherence to the unlawful agreement and which shows that the 
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party has severed all connection with the conspiracy. A conspirator who effectively abandons or withdraws from the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy . . . .

MCM, pt. IV, ¶ 5.c.(6).

Appellant’s text message was not an effective withdrawal. First of all, it 

was conditional (“unless something drastic changes”). Secondly, his message 

indicated his willingness to provide a murder weapon (“I can give you the 

hammer”). In fact, he did provide the weapon to SSgt Bailey after he sent the 

text message and SSgt Bailey subsequently left it for an undercover agent he 

believed was another contract killer. If Appellant ever effectively withdrew 

from the conspiracy, he certainly did not do so before he committed the overt 

act of exchanging his firearm with SSgt Bailey.

After taking a fresh, impartial look at the evidence, making our own independent determination as to whether the evidence constitutes proof of both 

of the required elements of conspiracy, and making allowances for not having 

personally observed the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt. 

G. Delay in Completing Appellate Review

Appellant has not asserted a right to timely review and appeal. However, 

we note that Appellant’s case was docketed with this court on 26 April 2016 

and appellate review had not yet been completed as of 26 October 2017. We 

review de novo whether 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). In Moreno, the CAAF established a presumption of unreasonable post-trial delay that requires a due process review when:

(1) the convening authority does not take action within 120 

days of trial;

(2) the record of trial is not docketed by the service Court of 

Criminal Appeals within 30 days of the convening authority’s action; or

(3) appellate review is not completed within 18 months of docketing. 

Id. at 142.

If there is a Moreno-based presumption of unreasonable delay or an otherwise facially-unreasonable delay, we examine the claim under 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.” Moreno, 63 M.J. at 135. 
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Moreno identified three types of prejudice arising from post-trial processing 

delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impairment of ability to present a defense at a rehearing. Id. at 138–39.

“We analyze each factor and make a determination as to whether that 

factor favors the Government or [Appellant].” Id. at 136. Then, we balance 

our analysis of the factors to determine whether a due process violation occurred. Id.; see also Barker, 407 U.S. at 533 (“Courts must still engage in a 

difficult and sensitive balancing process.”). “No single factor is required for 

finding a due process violation and the absence of a given factor will not prevent such a finding.” Id. 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).

Recognizing our authority under Article 66(c), UCMJ, we have also considered whether relief for excessive post-trial delay is appropriate in this case 

even in the absence of a due process violation. See United States v. Tardif, 57 

M.J. 219, 221, 225 (C.A.A.F. 2002). 

This is a complicated case and Appellant’s offenses are very serious. The 

amount of time required by Appellant’s defense counsel to effectively and professionally review the trial proceedings and assert errors is appropriately 

much more than would be required in a more typical, simpler, case. Likewise, 

the Government reasonably requires more time than is typical to fully analyze and effectively and professionally respond to Appellant’s brief. Appellant 

sought and received six enlargements of time to file his brief and assignments 

of error, accounting for a total of 362 days. The Government sought a single 

30 day enlargement of time to file its answer, accounting for a total of 60 

days. The court has taken less than five months to review the record of trial, 

consider the briefs of counsel, and render its decision. 

Appellant, who remains in confinement, has not pointed to any prejudice 

for the presumptively unreasonable delay and we find none. 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 that the 

time taken to complete the review of Appellant’s case is not unreasonable and 

we find no due process violation.
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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.

Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the 

findings and the sentence are AFFIRMED.8

FOR THE COURT

KATHLEEN M. POTTER

Acting Clerk of the Court

 

8 We direct the convening authority to issue a corrected court-martial order to correctly reflect Appellant’s plea to Charge III.