UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39931

________________________

UNITED STATES

Appellee

v.

Deric W. PRESCOTT

Lieutenant Colonel (O-5), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 1 April 2022

________________________

Military Judge: Shelley W. Schools (arraignment); Jefferson B. Brown.

Approved sentence: Dismissal. Sentence adjudged 30 December 2019 by 

GCM convened at Peterson Air Force Base, Colorado.

For Appellant: Lieutenant Colonel Todd J. Fanniff, USAF; Mark C. 

Bruegger, Esquire; Frank J. Spinner, Esquire.

For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Jessica 

L. Delaney, USAF; Mary Ellen Payne, Esquire.

Before JOHNSON, LEWIS, and RICHARDSON, Appellate Military 

Judges.

Chief Judge JOHNSON delivered the opinion of the court, in which Senior Judge LEWIS and Judge RICHARDSON joined. 

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

JOHNSON, Chief Judge:

A general court-martial convened by the commander of 14th Air Force and

composed of officer members convicted Appellant, contrary to his pleas, of one 
United States v. Prescott, No. ACM 39931

2

specification of attempted larceny and one specification of making a false official statement in violation of Articles 80 and 107, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 880, 907.1 The court-martial sentenced Appellant 

to be dismissed from the service. The commander of Space Operations Command, United States Space Force, approved the adjudged sentence. 

Appellant raises the following issues2for our review on appeal: (1) whether 

Appellant’s convictions are legally and factually sufficient; (2) whether the military judge abused his discretion by permitting the Government to offer evidence of Appellant’s 2011 household goods claim under Military Rule of Evidence (Mil. R. Evid.) 404(b); (3) whether trial counsel made improper argument

on findings; (4) whether Appellant’s sentence is inappropriately severe; (5) 

whether the commander of Space Operations Command, United States Space 

Force, lacked jurisdiction to take action on Appellant’s sentence; (6) whether 

the charged victim’s subrogation and charge-back agreements with its agents 

render Appellant’s conviction for attempted larceny legally and factually insufficient; (7) whether the military judge erred by granting the Government’s 

challenge for cause against a court member; (8) whether the finding of guilty 

as to attempted larceny was ambiguous; (9) whether the court-martial ceased 

to be properly convened when 14th Air Force—the convening command—was 

redesignated Space Operations Command; (10) whether Appellant is entitled 

to relief for unreasonable post-trial delay; and (11) whether, in light of Ramos 

v. Louisiana, 140 S. Ct. 1390 (2020), the military judge was required to instruct 

the court members that a guilty verdict must be unanimous.

3 We have carefully 

considered issues (6), (7), (8), and (11) and find they do not require discussion 

or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987); 

United States v. Anderson, No. ACM 39969, 2022 CCA LEXIS 181, at *57 (A.F. 

Ct. Crim. App. 25 Mar. 2022) (finding unanimous court-martial verdicts not 

 

1 Unless otherwise indicated, all references to the UCMJ, the Rules for Courts-Martial

(R.C.M.), and the Military Rules of Evidence are to the Manual for Courts-Martial, 

United States (2016 ed.).

2 For purposes of our analysis, we have consolidated Appellant’s first, second, and seventh assignments of error within issue (1), and renumbered the other assignments of 

error accordingly. Appellant raises the issue of legal and factual sufficiency in part 

pursuant to United States v. Grostefon, 12 M.J. 431, 435 (C.M.A. 1982). In addition, we 

address issues (5) and (9), regarding jurisdiction, together in our analysis below.

3 Appellant personally raises issues (6), (7), (8), (9), and (11) pursuant to Grostefon, 12 

M.J. at 435. We granted Appellant’s motion for leave to file issue (11) on 25 February 

2022. 
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3

required in light of Ramos). We find no error materially prejudicial to Appellant’s substantial rights, and we affirm the findings and sentence.

I. BACKGROUND

A. Appellant’s Household Goods Shipment

In 2011, Appellant transferred from Georgia to March Air Reserve Base 

(ARB), California. Following the delivery of his household goods in July 2011, 

Appellant submitted a claim in the Defense Personal Property System (DPS)4

in excess of $32,000.00 for 168 items he claimed had been either damaged or 

were missing as a result of the move; Appellant received $16,309.22 for his 

claim.

In 2014, Appellant transferred from March ARB to Joint Base San Antonio, 

Texas. Following this move, Appellant submitted another claim in DPS for approximately $30,000.00 for 151 items that he claimed had been damaged or 

gone missing. The shipping company paid Appellant $20,538.24 for the claim. 

Appellant then filed a claim with the Air Force Claims Service Center (AFCSC) 

for items for which the shipping company had not paid; Appellant received an 

additional $6,995.90 payment from the AFCSC. The shipping company was 

entitled to take possession of items for which it had paid full replacement

value, but did not do so, and Appellant retained these items.

In the summer of 2016, Appellant—who was single and did not live with 

any dependents—was transferred from Joint Base San Antonio to be the wing 

staff judge advocate at Minot Air Force Base (AFB), North Dakota. Before the 

move, Appellant contacted HS, the Deputy Director of the Joint Personal Property Shipping Office (JPPSO) in San Antonio, Texas, the office responsible for 

overseeing the transportation of Appellant’s household goods to his new duty 

location. Due to concerns Appellant expressed to HS about the move, HS arranged for Appellant’s 2016 household goods move to be a “Code 2” shipment,

rather than the “Code D” shipment typical of moves within the continental 

United States. As HS explained at trial, a Code 2 shipment involves sealing 

 

4 DPS is an online system for servicemembers undergoing a permanent change of station to manage the shipment of their household goods. DPS includes a process for servicemembers to file a claim with the transportation service provider (TSP) responsible 

for the move for damage or loss of household goods during the shipment. The TSP 

adjudicates such claims. If the TSP does not pay the claim in full, the servicemember 

has the option of filing a supplemental claim with the applicable military claims office—for Air Force personnel, the Air Force Claims Service Center.
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4

the servicemember’s personal property inside wooden crates at the pickup location. The containers then remain sealed throughout their transportation and 

storage until they are opened at the ultimate delivery location for unloading.

Code 2 shipments are generally considered more secure than Code D shipments.

Total Military Management (TMM) was the company selected to be the 

transportation service provider (TSP)5for Appellant’s 2016 relocation. TMM 

management personnel were aware that Appellant had filed consecutive

claims in excess of $30,000.00 following his previous two moves, and as a result 

they were wary of Appellant’s shipment. Although TMM had the overall contract and responsibility for the move, TMM hired local companies to accomplish the packing and pickup of Appellant’s household goods at origin and the 

delivery and unpacking at the destination—specifically, Lone Star Relocation 

Service (Lone Star) in San Antonio and AAction Moving and Storage (AAction) 

in Minot. TMM engaged a third company to carry the shipment between San 

Antonio and Minot.

When Lone Star employees arrived at Appellant’s residence in San Antonio 

to pack his household goods in July 2016, they found Appellant was having 

repair work done on a portion of the house. After some initial hesitation but at 

Appellant’s insistence, the Lone Star employees proceeded with packing and 

loading Appellant’s personal property despite the presence of other workers, 

construction activity, and a large dumpster in Appellant’s driveway.

Several circumstances resulted in certain irregularities in the documentation of the packing and pickup stage of the household goods move. For example, 

the Lone Star employees used multiple rolls of numbered stickers, or “tags,” to 

place on individual items or boxes in order to identify them on the written inventory; this resulted in some different items having the same number associated with them, albeit designated from a different roll of numbers (“white”

tags, “new white” tags, and “blue” tags). In addition, Appellant complained that 

the employees were marking an excessive number of exceptions for preexisting 

damage on certain items. As a result of Appellant’s complaint, at the direction 

of DS, Lone Star’s general manager at the time, several items were lined 

through and marked “void” on the inventory in order to re-enter them and 

change the description of the pre-existing damage. Furthermore, Lone Star 

employees attempted to use “bingo sheets” in order to note which items had 

 

5 TMM’s Senior Manager of Customer Support described the company as a “move manager,” a company that subcontracts with an origin agent, carrier, and destination agent 

to move the shipper’s household goods. This opinion will refer to TMM as a “TSP” based 

on the documentation of Appellant’s move admitted into evidence.
United States v. Prescott, No. ACM 39931

5

been placed in which crates. However, the bingo sheets, which were not mandatory documents for the household goods shipment process, were only partially filled out.

Nevertheless, on 13 July 2016 the packing and loading were complete and 

Appellant’s household goods had been placed inside 12 wooden crates and a 

“sofa box.” Appellant and the leader of the Lone Star crew at the site, JM, conducted a walkthrough of Appellant’s residence to ensure no items to be shipped 

had been left behind. The crew nailed the wooden crates shut and placed

“seals” (variously described as paper or plastic) on them before driving them to 

the Lone Star warehouse. At the warehouse, Lone Star employees then placed 

one or more metal bands around each crate for additional security.

Appellant’s household goods were transported from San Antonio to Minot, 

where they remained in the AAction warehouse for some period of time until 

the scheduled delivery date. After arrival at the warehouse, the crates and sofa 

box were stored together in plain sight in their own row until delivery. According to DH, a former AAction employee who worked in the Minot warehouse at 

the time, all 12 crates and the sofa box were delivered in good condition. Three 

other individuals—QT, a then-active duty Air Force household goods quality 

control inspector; TP, the former AAction Minot warehouse manager; and BT, 

another former AAction employee in Minot—confirmed the crates had arrived 

in Minot unopened, with the metal bands on and the seals for the most part 

intact. When QT inspected the crates at the warehouse the day before they 

were to be delivered to Appellant, he noted that one of the seals was “messed 

up.” However, QT and other witnesses testified that the paper or plastic seals 

on the containers sometimes rub off or break due to friction with other crates 

during transit. In this case, QT testified, he determined that the seal in question had rubbed off rather than been tampered with, and so informed Appellant 

at delivery.

On 22 August 2016, AAction employees delivered the 12 crates and one sofa 

box to Appellant’s on-base residence at Minot AFB. At TMM’s request, QT and 

another Air Force quality assurance representative were initially present for 

the delivery. The crates were opened at Appellant’s residence, and Appellant 

was physically present when at least some of them were opened. As the AAction crew unloaded the items, they would call out the corresponding inventory 

numbers to Appellant, who was responsible for marking off the items on the 

inventory sheets as having been delivered. However, approximately 30 inventory items were not marked as received at destination on the inventory sheets. 

As the unloading progressed, Appellant expressed the opinion that a number 

of items had not been delivered and were missing. The crates were completely 

emptied, and AAction employees spent some amount of time searching the residence for items that had not been marked as received. In addition, the “parts 
United States v. Prescott, No. ACM 39931

6

box” containing hardware needed to reassemble furniture items, although 

marked as received,6 also could not be found, which inhibited efforts to reassemble certain items of Appellant’s furniture.7 Ultimately, Appellant did not

sign the inventory on 22 August 2016. One of the AAction employees, BT, took 

the inventory sheets with her at the end of the day.

NJ, TMM’s Senior Manager of Customer Support, had been in contact with 

Appellant over the course of the delivery date. Initially, Appellant told NJ that 

there were no “major” problems with the early stages of the unloading. However, as the day went on Appellant told NJ that he was missing items. When 

NJ questioned how items could be missing when all of the sealed crates had 

been delivered, Appellant opined that the seals had been broken and that 

someone may have opened the crates while they were in storage. On 23 August

2016, the day after the delivery, NJ obtained an electronic copy of the unsigned 

inventory sheet from AAction and emailed it to Appellant in order for Appellant to identify specific items that were damaged, missing, or required reassembly. NJ later testified that his purpose in doing so was to identify any expedited “essential items claims” for items Appellant would need immediately, 

and to initiate a “trace” with Lone Star and AAction to search for specific missing items. NJ testified that Appellant was “very vague about his responses” 

and never identified which specific inventory line items were missing. At trial, 

Appellant testified he did not look at the electronic copy of the unsigned inventory sheet NJ sent him until 2019, when he was preparing for his court-martial 

with his trial defense counsel.

Appellant and GH, another AAction employee, eventually signed the written inventory on 3 October 2016. Each of them individually signed all 12 pages 

of the line-item inventory; each page had a piece of carbon paper and a copy of 

the inventory page underneath. GH took the signed original inventory with 

her, and Appellant retained the copies. Significantly, on the delivery date (22 

August 2016) and the date Appellant and GH signed the inventory (3 October 

2016), all of the copy pages were apparently imperfectly placed underneath the 

originals, either too high or too low. As a result, the “X”s or check marks marking individual line items as received at the destination do not appear on the 

 

6 Appellant confirmed in his testimony that he received the parts box at destination. 

AAction employees testified that they looked for the parts box with Appellant on the 

day of delivery and could not find it.

7 In the following weeks an AAction employee returned to Appellant’s residence multiple times in order to reassemble furniture.
United States v. Prescott, No. ACM 39931

7

correct inventory lines on the copy as compared to the original. These discrepancies are discernible, although not immediately obvious, from the placement 

of the “X”s and check marks on the copy itself; however, the signatures of Appellant and GH and dates that they signed are more obviously out of place on 

the copies.

8

B. Appellant’s 2017 Household Goods Claims

Appellant submitted his household goods claim for the 2016 move electronically in DPS in February or March 2017. He claimed 146 items as having been 

damaged or gone missing, for a total claimed reimbursement amount of over 

$41,000.00. The claim listed more than 40 items as entirely missing, which 

prosecution witnesses estimated had a combined weight of over 1,000 pounds; 

approximately 30 other items were described as missing parts or components, 

such as shelves for bookcases and remote controls for multiple televisions. Several items Appellant claimed as entirely missing are marked as having been 

delivered on the original inventory sheet, but are not marked as having been 

delivered on the copy of the inventory Appellant retained after signing on 3 

October 2016, due to the alignment discrepancy with the copy described above.

At trial, Appellant testified he used the carbon copies of the inventory to submit his claim, coupled with his personal knowledge of which items had not been 

delivered. Appellant did not amend his claim in DPS after he initially submitted it.

On 9 March 2017, MP, a self-employed furniture maker and claims inspector hired by TMM, performed an inspection at Appellant’s residence of items 

Appellant claimed had been damaged. At trial, MP described his role as an 

inspector as “to determine if there is damage; and when it comes to wooden 

furniture, determine what it would cost to repair, if it’s reparable.” He did not 

search Appellant’s residence, but inspected the items Appellant presented to 

him, and took photographs of some of them. MP testified that Appellant’s claim 

was much larger than the “average” claim he inspected, which typically involved between 15 and 20 items. MP prepared a written report of his inspection 

for TMM. In his report, he did not specifically note whether or not there was 

pre-existing damage to the items he inspected.

KF, TMM’s claims director, testified at trial that the company suspected 

Appellant was engaged in fraud in part because Appellant had asserted over 

1,000 pounds of household goods were missing from a sealed Code 2 shipment.

TMM employees also compared the 2017 claim with Appellant’s prior claims,

 

8 Unlike the notation of receipt and delivery on 22 August 2016 and the signatures on 

3 October 2016, the carbon copies of the handwritten notations made at origin in San 

Antonio in July 2016, including the tag numbers, item descriptions, pre-existing damage notations, and origin signatures, were not misaligned.
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and noted similarities in the types of damages and missing items that Appellant had previously claimed. In addition, the fact that Appellant claimed multiple items that had been marked on the original inventory sheet as having 

been delivered increased TMM’s suspicions. According to KF, the average 

amount claimed for damage to personal property on a Code 2 shipment—absent a “catastrophic” event such as fire or mold—was under $2,500.00. TMM 

denied Appellant’s DPS claim entirely.

After TMM denied his DPS claim, Appellant filed a claim with the AFCSC. 

At some point, TMM personnel contacted the AFCSC to raise concerns about 

the validity of Appellant’s claim. As of the time of Appellant’s trial, the AFCSC 

had not adjudicated Appellant’s claim.

C. The Investigation and Appellant’s Trial Testimony

In April or May 2017, TMM personnel and DS from Lone Star met with 

agents of the Air Force Office of Special Investigations (AFOSI) in San Antonio 

to present their suspicions that Appellant’s household goods claim might be 

fraudulent. As a result, the AFOSI initiated an investigation led by Special 

Agent (SA) PD. The AFOSI developed a list of “suspicious” items by comparing 

Appellant’s 2017 claim with the 2011 and 2014 claims TMM had brought to 

them.

On 12 July 2017, SA PD and another agent interviewed Appellant at Minot 

AFB. The AFOSI had obtained a search authorization for Appellant’s on-base 

residence, and while the interview was going on other AFOSI agents searched

the residence.

Appellant waived his Article 31, UCMJ, 10 U.S.C. § 831, rights and agreed 

to speak with the agents. The interview was videorecorded. While the interview was in progress, SA PD received information from the agents searching 

Appellant’s residence regarding items they found there. In the course of the 

interview, the agents questioned Appellant about the 2016 move generally, 

about his household goods claim, and about specific items the agents searching 

Appellant’s residence had found. Appellant denied seeking payment for any 

items he claimed as missing but had actually received. Notably, the agents 

questioned Appellant about a third-row car seat from a Chevy Tahoe they 

found in Appellant’s garage. According to Appellant, his Tahoe had two separate seats in the third row, a left seat and a right seat. Appellant’s inventory 

sheet indicated he had shipped two such seats; his DPS claim asserted that 

one of them had not been delivered and was missing. The seat found in the 

garage still had a tag on it from Appellant’s 2014 household goods shipment.

Appellant told the agents that he had bought the seat located in the garage on 

eBay as a replacement for the missing seat; he did not state the seat in his 

garage was the seat that actually had been delivered.
United States v. Prescott, No. ACM 39931

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Although the agents conducting the search identified several items they 

considered suspicious with respect to the investigation and took several photographs, they did not seize any items from Appellant’s residence. The AFOSI

also did not search Appellant’s vehicle (a Chevy Tahoe) or attempt to inspect 

it from the outside. While the AFOSI investigation continued, Appellant was 

transferred from Minot AFB to Peterson AFB, Colorado.

Several months after the interview, Appellant sent the AFOSI a typed 21-

page signed memorandum, with an additional 17 pages of photographs and 

other attachments. The memorandum primarily consisted of explanations of 

particular items Appellant claimed as damaged or missing in his household 

goods claim. In this memorandum, Appellant acknowledged he made certain 

“mistakes” in his DPS claim and during his AFOSI interview. Notably, with 

regard to the Tahoe seat, Appellant admitted he had no record of having bought 

such a seat on eBay but now “believe[d] [he] recall[ed] that [he] purchased [two]

Tahoe replacement seats from a garage sale near Minot, North Dakota.” Appellant concluded the memorandum with a general denial that he had ever 

intended “to deceive or to defraud the [G]overnment, to commit a wrongful taking, or anything else with a larcenous intent,” and that his “sole intent was and 

still remains to make a valid claim for the losses and damage that [the transportation companies] caused . . . .”

Appellant testified extensively at trial regarding the household goods shipment, claim, and AFOSI investigation. Among other testimony, he denied he 

was guilty of any alleged offenses. Notably, Appellant agreed his household 

goods were placed in a total of 12 crates and one sofa box, and he did not believe 

the Lone Star employees erroneously left anything behind in San Antonio. He 

testified that when he first saw the delivered crates at his residence in Minot, 

some of them had already been opened by the AAction moving crew, and the 

seals on the unopened crates he saw had been “ripped.” Appellant acknowledged he may have made some mistakes on his claim because he was working 

from the misaligned carbon copies of the inventory sheets. Appellant testified 

that he routinely made claims for full replacement value—as determined by

Internet searches—for items that had dents, scratches, or other minor damage, 

based on his understanding that he was allowed to request such compensation, 

and the additional understanding that the claims process was a negotiation 

and the TSP might offer to settle for a lesser amount. 

On cross-examination, Appellant agreed the evidence suggested that all of 

the crates and the sofa box had been delivered, and that numerous items he 

claimed as missing were marked as having been delivered on the inventory. 

Specifically with regard to the Tahoe seat, for which Appellant claimed a replacement value of $995.00, he maintained that he bought two replacement 

seats at a garage sale somewhere in Minot for between $25.00 and $75.00, and
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10

did not have a receipt for them. In response to questions from the court members, Appellant testified that he “got rid of” one of the Tahoe seats in July or 

August 2017, after he bought the two replacements, by putting it in “a stack of 

stuff that [he] put in front of [his] yard” for anyone to take. Appellant also testified that between MP’s inspection on 9 March 2017 and the AFOSI search of 

his house on 12 July 2017, he replaced all of the shelves from bookcases that 

he had claimed as missing, acquiring many of them from “garage sales and 

yard sales,” but he could not identify where he obtained particular shelves.

The court members found Appellant guilty of one specification of attempted 

larceny of over $500.00 from TMM with regard to his 2017 claim, and of one 

specification of making a false official statement to SA PD, in violation of Articles 80 and 107, UCMJ, respectively. The court members found Appellant not 

guilty of one specification of larceny with regard to his 2014 household goods 

claim, and of three specifications of making false official statements to SA PD, 

in violation of Article 121, UCMJ, 10 U.S.C. § 921, and Article 107, UCMJ, 

respectively.

II. DISCUSSION

A. Legal and Factual Sufficiency

1. Attempted Larceny

a. Law

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

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual sufficiency is limited to evidence 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)). “[T]he term ‘reasonable doubt’ 

does not mean that the evidence must be free from any conflict . . . .” United 

States v. King, 78 M.J. 218, 221 (C.A.A.F. 2018) (citation omitted). “[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). Thus, “[t]he 

standard for legal sufficiency involves a very low threshold to sustain a conviction.” King, 78 M.J. at 221 (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 
United States v. Prescott, No. ACM 39931

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the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable 

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

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

applying ‘neither a presumption of innocence nor a presumption of guilt’ to 

‘make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.’” United States 

v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (quoting Washington, 

57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018).

Appellant’s conviction for attempted larceny of money of a value greater 

than $500.00 in violation of Article 80, UCMJ, required the Government to 

prove: (1) that Appellant did a certain overt act, that is, filed a household goods 

claim which included items for which he was not entitled to payment; (2) that 

the act was done with the specific intent to commit a certain offense under the 

code, specifically larceny of money of a value greater than $500.00 from TMM; 

(3) that the act amounted to more than mere preparation; and (4) that the act 

apparently tended to effect the commission of the intended offense except for 

TMM personnel discovering similarities between Appellant’s 2017 claim and 

his 2011 and 2014 claims. See Manual for Courts-Martial, United States (2016 

ed.) (MCM), pt. IV, ¶ 4.b. The elements of larceny in violation of Article 121, 

UCMJ, 10 U.S.C. § 921, include: (1) that Appellant wrongfully took, obtained, 

or withheld certain property from the possession of the owner or of any other 

person; (2) that the property belonged to a certain person; (3) that the property 

had a certain value; and (4) that the taking, obtaining, or withholding was with 

the intent permanently to deprive or defraud another person of the use and 

benefit of the property or permanently to appropriate the property for the use 

of the accused or for any person other than the owner. MCM, pt. IV, ¶ 46.b.(1).

For purposes of Article 121, UCMJ, the term “person” includes, inter alia, a 

corporation or organization. MCM, pt. IV, ¶ 46.c.(1)(c)(iv). “[A]n obtaining of 

property from the possession of another is wrongful if the obtaining is done by 

false pretense.” MCM, pt. IV, ¶ 46.c.(1)(d). “A false pretense is a false representation of past or existing fact.” MCM, pt. IV, ¶ 46.c.(1)(e). “[T]he [G]overnment is free to meet its burden of proof with circumstantial evidence . . . .”

King, 78 M.J. at 221 (citations omitted).

b. Analysis

i. General considerations

Appellant’s court-martial was lengthy and complex. More than 30 witnesses testified during the findings phase, some of them multiple times, and 

their testimony was sometimes in conflict. The documentary, photographic, 

and videorecorded evidence was also extensive. Moreover, the trial was inextricably related to the household goods claims system, which inherently in-
United States v. Prescott, No. ACM 39931

12

volves a process of initial claim, negotiation, and settlement. Therefore, in order to understand the evidence supporting Appellant’s convictions and 

properly frame our analysis, it is appropriate to clarify certain foundational 

aspects of the household good shipment and claims process established by the 

evidence presented at Appellant’s trial.

First, it was permitted, and not fraudulent, for a claimant to claim full replacement value for an item that had suffered only minor damage. Second, a 

claimant could elect to retain a claimed damaged item, even if a TSP had paid 

to replace the item, provided the TSP did not exercise its right to take possession of the item for its salvage value within a particular time period. Third, if 

a claimant made a claim for a damaged item, received payment, and then repaired the item himself, and the item was then damaged again in the same 

way or a different way on a subsequent move, the claimant was entitled to seek 

compensation for the new damage regardless of the prior payment for the same 

item—even if he previously received full replacement value. Fourth, where a 

claimant shipped a large amount of personal property, it is likely some amount 

of damage could occur during the move, either before, while, or after the items 

are contained in sealed crates.

Accordingly, we do not base our review of the legal and factual sufficiency 

of Appellant’s conviction for attempted larceny on a determination that Appellant claimed an excessive amount of money for an item that was actually damaged during the move; nor do we base it on the mere fact that Appellant sought 

compensation for damage to items which he had claimed had been damaged in 

previous moves. Instead, we focus our analysis on whether the Government 

proved beyond a reasonable doubt that Appellant wrongfully sought over 

$500.00 in payment for items that either: (1) had been delivered, but Appellant 

falsely claimed had not been delivered; or (2) had not been damaged during the 

2016 move.

ii. Potential explanations for items claimed as missing

With that clarification, we next note that one of the most telling aspects of 

the evidence in the Prosecution’s favor is that Appellant claimed approximately 70 items—with an estimated weight over 1,000 pounds—were entirely 

or partially missing from his 2016 shipment, where his goods had been sealed 

inside 12 crates and a sofa box, all of which containers had been delivered essentially undamaged to his residence at Minot AFB. Appellant testified he believed that Lone Star employees had picked up all of the items on the inventory 

and had not erroneously left anything behind in San Antonio, a conclusion supported by the testimony of the Lone Star crew supervisor, JM, and the other 

available evidence. Therefore, three apparent possibilities remained for the 

court members to consider with regard to items claimed missing: (1) that the 

items were taken by moving company employees at some point in the process, 
United States v. Prescott, No. ACM 39931

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and not delivered; (2) that the items were delivered and Appellant mistakenly 

but honestly claimed them as missing; (3) that the items were delivered and 

Appellant knowingly falsely claimed them as missing, consistent with the 

charge of attempted larceny; or some combination of these possibilities.

Turning to the first of these possibilities, the court members could reasonably conclude that Lone Star employees did not divert a significant amount of 

Appellant’s property at origin in San Antonio by carrying it off or otherwise 

disposing of it, rather than placing it in the crates to be sealed. JM testified 

that the Lone Star employees had done no such thing. Appellant did not report 

or testify to observing any such activity, and there is no other evidence of it.9

Such activity would presumably have been readily observable by other employees, and so would likely have required some degree of collusion among them, 

which the court members could reasonably find unlikely. Moreover, such an 

explanation is implausible indeed for large items Appellant subsequently 

claimed as missing, such as the Tahoe seat, an entire bookcase, and entire 

boxes of clothing. In addition, the court members may have considered that 

many of the items claimed as missing were of little independent value and unlikely targets for pilferage, such as shelves from bookcases or remote control 

devices.

For similar reasons, the court members could have found it implausible 

that AAction employees carried off or otherwise disposed of these items after 

the crates were opened in front of Appellant’s residence at Minot AFB. Testimony indicated the crates were entirely emptied, and there is no specific evidence any such theft actually occurred.

Another theory, and the one Appellant seemed to favor when discussing the 

missing items with NJ (TMM’s Senior Manager of Customer Support) and with 

the AFOSI, was that the crates had been opened and items taken from them 

between the time the crates had been nailed shut and the seals placed at Appellant’s San Antonio residence, and when they were opened at his residence 

at Minot AFB. However, the court members could reasonably conclude this explanation was also highly unlikely. First, QT, the Air Force quality control inspector, testified that he inspected the crates at the AAction warehouse in 

Minot the day before delivery and, with one exception, found the seals and 

metal bands intact. With respect to the “messed up” seal, he determined it had 

been disturbed by friction with other crates during transit. Even if the court 

members considered that the seals might have been broken, or were replaced 

with unbroken ones, and that the metal bands might have been removed to 

 

9 Similarly, there is no evidence whatsoever that the construction workers improperly 

removed any of Appellant’s household goods, or that the items were deposited in the 

dumpster in his driveway.
United States v. Prescott, No. ACM 39931

14

allow access to the crates and then replaced, they still could have found theft 

from the sealed crates to be an unpersuasive explanation. The evidence indicated that Appellant claimed items as missing from multiple crates. Moreover, 

as noted above, the independent value of many of the missing items was relatively low.10 The members could have reasonably concluded the likelihood was 

extremely low that larcenous persons with access to the crates went to the 

trouble of breaking the seals, removing the metal bands, and removing the 

nails from multiple crates, only to take items of relatively little value to 

thieves,

11 and then seal the crates again, either without detection by, or in collusion with, others. 

The court members may also reasonably have concluded that Appellant’s 

household goods claim cannot be entirely explained by innocent mistakes. It is 

true that Appellant owned numerous duplicative items of household goods and 

furniture of particular types, such as bookshelves and cat furniture, which 

could in theory increase the potential for mistakes in claiming particular items. 

However, Appellant was by his own admission, and supported by the other 

evidence and testimony, very particular about his household goods and meticulous in pursuing household goods claims. Moreover, Appellant spent at least 

five months living in the residence where his household goods had been delivered before he filed his claim in DPS, and he testified he searched his house for 

the missing items. Appellant did not amend his claim at any point during the 

nearly two months it was pending with TMM. The court members could reasonably have found some of the items claimed as missing, such as the Tahoe 

seat, were very unlikely to be mistakenly overlooked, and that it was implausible Appellant would have overlooked an aggregate 1,000 pounds worth of 

goods.

Furthermore, the court members could have found the discrepancy with 

Appellant’s carbon copies of the inventory sheets particularly telling with regard to the absence of mistake. Appellant claimed multiple items that were 

marked as delivered on the original inventory, but appeared to be marked as 

not delivered on Appellant’s copy, including one of the Tahoe seats. Thus, the 

court members could reasonably infer Appellant believed the inventory inaccurately indicated certain items had not been delivered, and then based his 

DPS claim not on what items had been actually delivered, but what items he 

believed he could get TMM to pay for based on the documents.

 

10 However, the replacement value for the missing items, or the items from which parts 

or components were missing, for which Appellant was permitted to claim compensation, was much higher than the likely resale value of the missing items and parts.

11 Appellant did not claim any of the computers or televisions listed on the separate 

“High Risk/High Value Inventory” as missing.
United States v. Prescott, No. ACM 39931

15

Accordingly, the court members could reasonably have found Appellant 

falsely seeking payment for items he claimed as missing, which had in fact 

been delivered, to be the only plausible explanation, considering the alternative explanations of employee pilfering or innocent mistakes. Additional reasonable inferences from the evidence further support such a conclusion.

iii. Implausible explanations and other considerations

Despite Appellant’s insistence on his innocence, the court members could 

reasonably have found some of his statements to AFOSI and testimony implausible and generally damaging to his credibility. 

The court members could reasonably have found Appellant’s explanation of 

the Tahoe seat the AFOSI found in his garage to be evidence of consciousness 

of guilt. During Appellant’s AFOSI interview, the agents confronted him with 

the fact that he had claimed a Tahoe seat had not been delivered, yet one had 

been found in his garage. One might expect Appellant’s response would have 

been simple—he shipped two Tahoe seats, but only one was delivered, and the 

one that arrived was the one in his garage. But that is not what he said. Appellant immediately responded (wrongly) that he had bought the Tahoe seat in 

his garage on eBay as a replacement. In other words, Appellant did not respond 

as someone who had an obvious explanation for the item, but as someone who 

had been discovered with an unexplained Tahoe seat in his garage.

Appellant might have recovered by later explaining he was confused during 

the interview and subsequently clarifying the Tahoe seat in the garage was not 

a replacement he had purchased, especially as the seat had a sticker from his 

2014 move on it. Instead, his explanation continued to grow more strained. In 

his written memorandum to AFOSI prepared months after the interview, Appellant explained that his confident assertion he had purchased the seat on 

eBay had been a mistake, and that he had instead found and bought a matching set of replacement Tahoe seats in the same color as the originals at a garage 

sale in Minot at some point between August 2016 and July 2017, at a location 

he could no longer remember, and forgot to mention during the interview. The 

court members may have found this explanation both unlikely and suspiciously 

convenient, in that unlike an online purchase, the purported garage sale provided no receipt or other proof beyond Appellant’s word. At trial, Appellant 

elaborated on this explanation in ways the court members might reasonably 

have found additionally suspicious. For example, Appellant—despite defense

evidence that he had been diagnosed with a “hoarding disorder”12 and retained 

 

12 In April 2019, a board convened pursuant to R.C.M. 706 determined that Appellant 

did not suffer from a severe mental disease or defect at the time of the alleged offenses,
United States v. Prescott, No. ACM 39931

16

many superfluous furnishings and items of various types, who was meticulous 

about seeking compensation for damage to his property, and who claimed 

$995.00 as the replacement value of the Tahoe seat in his DPS claim—testified 

he simply discarded one of the Tahoe seats after he bought the two replacements, such that at the time of his trial he owned only two Tahoe seats.13 The 

court members might reasonably have doubted this claim of disposing of the 

third Tahoe seat, again without supporting evidence, and considered whether 

the two third-row Tahoe seats Appellant claimed to own in November 2019, 

during his court-martial, were the same two he owned before his 2016 move.

Appellant made similar claims that he bought at garage sales replacement 

shelves for the bookcase shelves he claimed were missing from his household 

goods shipment. Again, Appellant provided no details as to where he had purchased the shelves or other confirming evidence. The court members might 

reasonably have doubted this convenient explanation as to why his bookcases 

had shelves in them when the AFOSI searched his residence in July 2017, after 

Appellant displayed bookcases with missing shelves to the claims inspector MP 

on 9 March 2017. The court members may have also considered that bookshelves would be relatively easy to remove and conceal, for purposes of making 

a false claim; that the shelves would seem to have relatively little independent 

value as targets of pilferage; and that Appellant had made similar assertions

of missing bookshelves in his previous DPS claims.

iv. Evidence with respect to specific items

Next we consider whether the Government introduced sufficient evidence 

with regard to particular claimed items to permit the court members to find 

beyond a reasonable doubt that Appellant sought to obtain more than $500.00 

from TMM by false pretenses. What follows is not an exhaustive list, but includes some of the items the court members could reasonably have concluded 

the Government proved Appellant falsely claimed. The items Appellant 

claimed fall generally into one of two categories: missing items and damaged 

items.

v. Specific items claimed as missing

Appellant claimed $995.00 replacement value for the Tahoe seat he asserted had not been delivered. As discussed above, both Tahoe seats were 

marked as delivered on the original inventory, although only one appeared to 

 

that he was able to understand the nature and quality of his conduct, and that he was 

able to understand and participate in the proceedings against him.

13 The Defense’s expert witness in forensic psychology who diagnosed Appellant’s 

hoarding disorder admitted on cross-examination it “was unusual” that someone with 

that diagnosis would discard such an item, and he was “a little surprised to hear that.”
United States v. Prescott, No. ACM 39931

17

be so marked on Appellant’s carbon copy. The court members could reasonably 

conclude the Tahoe seat was not misplaced during shipment. Due to its size, 

the court members reasonably may also have found the Tahoe seat was very 

unlikely to have been pilfered by moving company employees, or to have been 

overlooked by Appellant if it was delivered to his residence. The court members 

could have reasonably found Appellant’s evolving explanation for the presence 

of the Tahoe seat in his garage to be improbable, suspiciously convenient, and 

indicative of consciousness of guilt. Although the AFOSI agents only found one

Tahoe seat at Appellant’s residence, the court members could reasonably have 

concluded Appellant—intent on falsely claiming one seat as undelivered—had

replaced only one of the seats in his Tahoe, or put one of the seats somewhere 

the agents did not see it.

Appellant claimed over $2,300.00 for what he asserted were shelves missing from furniture.

14 As discussed above, the court members could have reasonably found it unlikely these shelves were lost, pilfered by movers, or overlooked by Appellant when he filed his claim in DPS. The court members could 

have reasonably found Appellant’s claim that he bought replacement shelves 

at unspecified garage sales after MP’s inspection on 9 March 2017 but before 

the AFOSI search on 12 July 2017 to be suspiciously convenient and non-credible. They likely also noticed Appellant made similar claims for lost shelves in 

2011 and 2014. The court members may have reasonably concluded the shelves 

were delivered and Appellant simply concealed them during MP’s inspection 

in order to claim full replacement value for several items of furniture.

Appellant claimed $298.00 for a “bookcase,” tagged as inventory number 

61, he asserted was not delivered, but which the AFOSI agents found in his 

house with all its shelves in place.

Appellant claimed $35.99 for a missing “cat pole,” tagged as inventory number 116, one of several items of furniture Appellant owned for his pet cats. This 

item was marked as having been delivered on the original inventory form, but 

was not marked as delivered on Appellant’s carbon copy. The AFOSI agents 

found this item in Appellant’s home during their search on 12 July 2017. Appellant asserted that claiming this item had been a mistake on his part. However, under the circumstances, the court members could reasonably doubt Appellant’s explanation and conclude Appellant attempted to seek compensation 

 

14 Appellant claimed additional damage to some of these items, but as Appellant’s 

usual practice was to claim full replacement value for any loss or damage, in nearly all 

of these instances he claimed the same amount per item irrespective of whether missing shelves was the only loss or damage. In addition, this total does not include an 

entire bookcase Appellant claimed as missing.
United States v. Prescott, No. ACM 39931

18

for an item he knew had been delivered but was marked as not having been 

delivered on his carbon copy of the inventory. 

Appellant claimed a total of $63.98 for three undelivered remote controls 

for various devices, and an additional $1,510.00 for five other items with damage that included missing remote controls. For the reasons discussed above, 

the court members may reasonably have found it unlikely that these were pilfered. They may have also considered that such devices could be easily concealed by a person intent on making a false claim. They may have additionally 

noted, and found suspicious, that Appellant had previously claimed multiple 

remote controls had gone missing during his 2011 and 2014 household goods 

shipments. 

Appellant claimed $299.00 for a box tagged as inventory item number 22 

and identified as “file” on the inventory form. Appellant claimed the box contained papers and miscellaneous items taken from a cabinet; it was one of several boxes of items Appellant claimed had not been delivered. Due to the discrepancy between the original inventory and Appellant’s carbon copy described 

above, the box was marked as undelivered on Appellant’s copy but marked as 

delivered on the original. One of the defense exhibits admitted at trial is a 

photograph that Appellant testified was taken inside his residence on 22 August 2016; visible on the floor is a box labeled and tagged “22” with “Paperwork 

Guest Room” written on the side. At trial, Appellant testified that his claim for 

this item was a mistake. However, based on the evidence, the court members 

could reasonably conclude the box had been delivered, that Appellant had not 

innocently overlooked it when he made his claim, and that he falsely attempted 

to obtain payment for it to which he was not entitled.

vi. Specific items claimed as damaged

At trial and on appeal the Government has argued Appellant also falsely 

claimed damage had been incurred on several items during his 2016 move that 

was actually pre-existing damage. Several of these items are worth noting here

as supporting Appellant’s conviction for attempted larceny.

In 2014, Appellant made a claim for damage to the top left corner of a particular wooden bookcase. The claim inspector who inspected Appellant’s 2014 

claim took a photograph of the claimed damage, consisting of minor scuff 

and/or paint marks. In his 2017 DPS claim, Appellant again claimed for damage to the top left corner of this bookcase, seeking $298.00. However, Lone Star 

employees took a photograph of the condition of the piece before loading it into 

a crate, and this pre-move photograph appears to depict the same “damage” 

that Appellant had claimed in 2014. In other circumstances reasonable court 

members might have attributed this to a simple mistake on Appellant’s part; 
United States v. Prescott, No. ACM 39931

19

however, given the totality of the evidence such court members may have instead reasonably found the evidence indicative of Appellant’s intent to claim 

compensation from TMM to which he knew he was not entitled.

In 2011, Appellant claimed $799.99 for a Fender speaker with damage described as “rear plug/outlet broken off/cracked.” A photograph of the damage 

was entered in evidence at trial. In 2017, Appellant claimed $649.00 for the

same speaker with the damage described as “Backoutlet smashed in.” The 

speaker was also photographed for the 2017 claim, and that photograph was 

introduced at trial. The photographs from 2011 and 2017 appear to show the 

exact same damage to the speaker, with one of the two rear outlet plugs pushed 

into the speaker and to one side in a distinctive way. In his memorandum to 

the AFOSI, Appellant asserted that “[a]round 2013 [he] was able to pull the 

outlet/plug back out,” but in 2016 the same “exact damage” happened again to 

the same outlet plug. However, in light of the photographs and the totality of 

the evidence, the court members reasonably could have disbelieved Appellant’s 

explanation and concluded that in 2017 Appellant fraudulently sought compensation for pre-existing damage to the speaker.

In 2011, Appellant claimed a total of $798.00 for a Bowflex adjustable 

dumbbell weight set he asserted was missing some of its weights and had a 

scratched and dented frame. In 2014, Appellant again claimed the set was 

missing some of its weights and claimed $369.00. In 2017, Appellant again 

claimed weights were missing from the set and that the frame was scratched

and dented, seeking replacement value of $799.00. In addition to noting an 

improbable pattern in Appellant’s claims, for the reasons indicated above, the 

court members might reasonably doubt that these two individual weights 

would have been singled out for pilfering during the shipment. The court members might also have considered that someone intent on making a false claim 

could easily conceal the two weights, claim full replacement value for the set, 

and still make use of the weight set. 

In 2011, Appellant claimed $39.99 for a metal music stand that had been 

bent during the move. The claims inspector in 2011 took a photograph of the 

music stand which was introduced at trial. The claims inspector testified the 

apparent damage was “the left-hand side of the music stand is sloping down so 

the whole thing has a curve to it across the top.” In 2014, Appellant again 

claimed a metal music stand that was “bent” at the “top,” receiving the $59.00 

he claimed for it. In 2017, Appellant claimed for a music stand that was “bent”

on the “top part,” seeking $38.00; the Government introduced at trial a photo 

of this item as well. Appellant testified that the music stand he claimed for in 

2014 was not the same one he claimed for in 2017. However, on cross-examination, trial counsel confronted Appellant with his written memorandum to 

the AFOSI wherein he stated it was the same stand in both claims, that he had 
United States v. Prescott, No. ACM 39931

20

self-repaired it after the 2014 move, and that it had been damaged again in 

2016. Appellant testified that he had been mistaken in his memorandum. However, under the circumstances, the court members could reasonably conclude 

Appellant falsely claimed that pre-existing damage to the music stand had 

been caused during the 2016 shipment.

In 2014, Appellant claimed $79.00 for a “crack” in a plastic garage shelf 

unit. The 2014 claim inspector took a photograph of the item which was introduced as evidence at Appellant’s trial. In 2017, Appellant again claimed the 

garage shelf unit, seeking $72.00 due to “[s]helf cracked from disassembly.”

MP, the 2017 claim inspector, also took photographs of the shelf which appeared to show the same crack in the unit. At trial, on cross-examination and 

in response to court member questions, Appellant acknowledged he claimed 

the same shelf unit in 2014 and 2017, and that he had not attempted to repair 

the crack itself. He testified that the shelf unit was designed to be disassembled; that he had glued the pole of the shelf in place so that movers would not 

take it apart; that the movers had nevertheless taken the item apart; and this 

disassembly was the “damage” to the unit that he had claimed. However, the 

photographs of the damage taken by the claims inspectors in 2014 and 2017, 

presumably based on Appellant’s explanation of the claim, both clearly depict 

the same crack. Under the circumstances, the court members could reasonably 

have disbelieved Appellant’s explanation for the claim and found Appellant 

wrongfully sought compensation from TMM for pre-existing damage to the 

shelf unit.

vii. Appellant’s arguments regarding attempted larceny

Appellant makes several arguments attacking the sufficiency of the evidence supporting his conviction for attempted larceny. We have accounted for 

some of these arguments in our analysis above, and not all of them warrant

discussion, but we address the most significant remaining points here.

Appellant cites several actions on his part regarding his household goods 

shipment that he contends are inconsistent with a scheme to submit a fraudulent claim. For example, he argues that drawing attention to himself and his 

prior claims by contacting JPPSO before his move, and agreeing to a more secure Code 2 containerized shipment, would not make sense if Appellant had 

been already intent on making an extensive claim for lost and damaged items. 

Such reasoning does not overcome the evidence described above that Appellant 

did, in fact, make false claims. Moreover, the relevant point in time with regard 

to Appellant’s intent to commit larceny, for purposes of his conviction, was not 

before the shipment. The relevant point was when he made his claim after the 

shipment, perhaps informed by what he believed were advantageous discrepancies in the documents. In addition, the evidence Appellant cites does not necessarily disprove his early intent to pursue a fraudulent claim. His previous 
United States v. Prescott, No. ACM 39931

21

experience with securing a large settlement for his prior household goods 

claim, and lack of prior experience with Code 2 shipments, may have made him 

overconfident in his ability to secure a settlement for the 2016 shipment.

Appellant cites errors in the AFOSI investigation and report, which SA PD 

admitted during his testimony. For example, SA PD admitted it was a mistake 

not to seize suspicious items found during the search of Appellant’s residence 

or to examine his vehicle, and that some conclusions regarding false claims 

included in the report of investigation were inaccurate. However, Appellant’s 

conviction was not based on AFOSI’s report or evidence the agents failed to 

collect, but on the evidence introduced at his trial. As described above, the evidence and reasonable inferences derived from it support Appellant’s conviction.

Appellant’s strongest argument has to do with the specific wording of the 

specification of attempted larceny of which he was convicted. The specification 

reads, in pertinent part:

[Appellant] did, at or near Minot [AFB], North Dakota, between 

on or about 1 February 2017 and on or about 30 April 2017, attempt to steal money of a value greater than $500[.00], the property of [TMM], by filing a household goods claim which included 

items for which [Appellant] was not entitled claims payment and 

would have resulted in such payment except for [TMM] personnel 

discovering similarities between [Appellant’s] 2017 household 

goods claim and [his] 2011 and 2014 household goods claims.

(Emphasis added). The reason why an attempt to commit an offense charged 

under Article 80, UCMJ, did not succeed is not an element of the offense of 

attempt, and was not required to be included in the specification. Nevertheless, 

Appellant argues that the Government, having elected to include this language 

in the specification, was required to prove it beyond a reasonable doubt in order 

to secure Appellant’s conviction as charged. 

In addition, Appellant cites the following exchange during the direct examination of KF, TMM’s claims director:

Q. [Trial Counsel:] Ma’am, you talked previously about your 

foreknowledge of the 2011 and 2014 claims at the time that you

evaluated the 2017 claim. Is that correct?

A. [KF:] Correct.

Q. Had you made comparisons of the 2011 and 2014 claim to the 

2017 claim at the time you evaluated that claim?

A. Yes.
United States v. Prescott, No. ACM 39931

22

Q. And did the similarities between the 2011, 2014, and 2017 

claims play into TMM's decision to deny the 2017 claim?

. . .

A. Yeah.

Q. I’m sorry?

A. Yes.

Q. Okay. And can you explain to the members how so? How did 

the 2011 and 2014 claims play into your decision to deny the 

2017 claim?

A. Both due to the similarities in the claim’s items, the types of 

damage to the items that were being claimed, but most importantly due to the size and dollar amount of each one of those 

claims.

Q. Is it possible that but for the information you had about the

2011 and 2014 claims, that the 2017 claim could have been adjudicated differently?

A. I think it’s possible that it would have been adjudicated differently, but I think that there is a strong likelihood that there 

still would have been a similar outcome as to this.

Q. And why do you say that?

A. Based on the manner in which we moved the shipment and 

retained oversight of the shipment, claims -- or shipments that 

we handle in this type of manner have not ever before led up to

this kind of claim, and it would have been suspect at that time, 

regardless of the previous other claims.

Shortly thereafter, on cross-examination, KF had the following exchange 

with trial defense counsel:

Q. [Trial Defense Counsel:] [ ] And, correct me if I get this wrong, 

but I believe your testimony was that you, even without that 

data, 2011 and 2014, both the claims, and in 2014 the claims and 

inspection report, we may have -- you may have been at the same 

place. Correct?

A. [KF:] Yes. I think there would have been a portion of the claim 

that we would have referred or transferred due to suspect that 

it was not a true and valid claim.

Q. And what portion is that, ma’am?
United States v. Prescott, No. ACM 39931

23

A. The missing, and in addition some of probably the damages, 

too.

Appellant contends KF’s testimony that there was a “strong likelihood” of 

a “similar outcome” for Appellant’s 2017 claim even without the information 

from the 2011 and 2014 claims defeats proof beyond a reasonable doubt that 

Appellant’s attempted larceny failed because of TMM’s knowledge of his 2011 

and 2014 household goods claims.

In response, the Government admits it is “unclear” why it chose to include 

this “surplus” language regarding the reason Appellant’s attempted larceny

was unsuccessful. However, the Government suggests that if this court finds 

the Prosecution failed to prove this language, this court could “strike” the surplus language from the specification. We disagree. “While Article 66, UCMJ, 

[10 U.S.C. § 866,] provides extensive powers of appellate review to service 

[C]ourts of [C]riminal [A]ppeal, it does not permit after-the-fact revisions to 

the charge sheet that sweep more broadly than what was alleged, and what an 

appellant was convicted of, at trial.” United States v. English, 79 M.J. 116, 122 

(C.A.A.F. 2019). To strike the language as the Government proposes would be 

to “affirm a charge with a broader factual basis than the Government originally 

charged and proceeded on at trial,” in violation of Appellant’s due process 

rights. Id. 

Therefore, the question becomes whether the Government proved the “surplus” language, notwithstanding KF’s testimony, such that the court members 

could find it beyond a reasonable doubt. We conclude the evidence does support 

such a finding.

First, in light of the totality of the evidence, the court members could have 

reasonably found unpersuasive KF’s speculative opinion about what would 

have happened to Appellant’s 2017 claim if TMM had not had the information 

from his 2011 and 2014 claims. The evidence indicated TMM’s knowledge of 

the prior claims significantly influenced the company’s actions and the progress of the subsequent AFOSI investigation. KF testified that Appellant’s case 

presented “unique circumstances;” that she had never in 11 years previously 

encountered an individual who had “experienced” claims in excess of 

$30,000.00 on three consecutive moves; and agreed that it was because Appellant had made such large previous claims that his 2016 shipment was “under 

the microscope.” Not only the amount of money claimed and number of items, 

but also the similar nature of the claims from one move to the next is striking.

TMM took evidence of the prior claims to the AFOSI which led to the criminal 

investigation against Appellant. SA PD testified the AFOSI used this information from Appellant’s prior claims to develop their list of suspicious items to 

investigate. The court members were free to draw their own conclusions from 
United States v. Prescott, No. ACM 39931

24

the evidence about the significance of Appellant’s prior claims rather than rely 

on KF’s speculation.

Second, even if the court members credited KF’s speculation, taken as a 

whole her testimony indicated KF believed TMM would have paid part of Appellant’s claim but for its knowledge of the 2011 and 2014 claims. KF’s testimony on cross-examination that there “would have been a portion of the claim” 

that TMM would not have paid implied TMM would have paid for another portion—specifically, some of the claims for damaged items. Above, we analyzed 

several items for which the court members could reasonably conclude Appellant fraudulently sought payment from TMM for pre-existing damages. With 

regard to most of these items—specifically the Fender speaker, Bowflex 

weights, music stand, and plastic shelf unit—evidence from 2011 and 2014 

played a vital role in demonstrating the fraudulent nature of the claims. The 

total amount claimed for these four items alone was over $1,500.00. Accordingly, the court members reasonably could have found TMM would have paid 

Appellant over $500.00 for fraudulent claims “except for [TMM] personnel discovering similarities between [Appellant’s] 2017 household goods claim and 

[his] 2011 and 2014 household goods claims,” as charged.

Accordingly, the evidence supports the court members’ finding that Appellant is guilty of the specification as charged.

viii. Conclusion with Regard to Attempted Larceny

Drawing every reasonable inference from the evidence of record in favor of 

the Government, we conclude the evidence was legally sufficient to support 

Appellant’s conviction for attempted larceny beyond a reasonable doubt. Additionally, having weighed 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.

2. False Official Statement

a. Additional Background

In 2011, Appellant sought compensation for damage to a Fender speaker, 

specifically to an input plug on the rear of the item. Appellant did not claim for 

damage to the front of the speaker. At trial, the Government introduced the 

testimony of WW, the claims inspector who inspected Appellant’s 2011 claim 

on behalf of the TSP, and a photograph WW took of the claimed damage. WW 

testified that he did not observe or photograph any damage to the front of the 

speaker. 

In 2017, Appellant again claimed damage to the “back outlet” of the same 

Fender speaker. Appellant’s written memo to AFOSI addressed this item. Appellant stated,
United States v. Prescott, No. ACM 39931

25

In 2011, the movers smashed in the front screen and broke the 

back outlet. Around 2013, I was able to pull the outlet/plug back 

out. In 2016, there were additional scratches on the speaker and 

I noticed that the rear plug had broken again. I put in a claim 

for the broken rear plug.

At trial, the Government introduced a photograph the claim inspector, MP, 

took in March 2017 of the claimed damage to the rear of the speaker. In his 

testimony, MP described the damage as one of the “recessed parallel inputs” 

being missing.

During Appellant’s cross-examination, he acknowledged that if the front of 

one of his speakers was “smashed in,” he “usually would” claim it unless he 

forgot to for some reason. He also acknowledged he was “very detailed” with 

his household goods claims.

b. Law

The standards applicable to our review of the legal and factual sufficiency 

of a conviction are set forth in Section II.A.1.a., supra.

Appellant’s conviction for making a false official statement in violation of 

Article 107, UCMJ, required the Government to prove: (1) that Appellant 

signed a certain official document or made a certain official statement; (2) that 

the document or statement was false in certain particulars; (3) that Appellant 

knew it to be false when he signed or made it; and (4) that the false document 

or statement was made with the intent to deceive. See MCM, pt. IV, ¶ 31.b. 

“[S]tatements to investigators [may] be prosecuted under Article 107, UCMJ, 

as false official statements.” United States v. Nelson, 53 M.J. 319, 326 (C.A.A.F. 

2000).

c. Analysis

The court members found Appellant guilty of the following specification:

[Appellant] did, at or near Peterson [AFB], Colorado,[

15] between 

on or about 25 January 2018 and on or about 6 February 2018, 

with intent to deceive, make to [SA PD], an official statement, to 

wit: “In 2011, the movers smashed in the front screen and broke 

the back outlet. Around 2013, I was able to pull the outlet/plug 

back out. In 2016, there were additional scratches on the 

speaker and I noticed that the rear plug had broken again. I put 

in a claim for the broken rear plug,” or words to that effect, which 

 

15 Appellant was reassigned from Minot AFB to Peterson AFB, Colorado, after the 

AFOSI investigation began.
United States v. Prescott, No. ACM 39931

26

statement was totally false, and was then known by [Appellant] 

to be so false.

We conclude the court members—who observed Appellant and the other 

witnesses testify in person and could assess their credibility—could reasonably 

find the charged statement was false. Based on the evidence from 2011, the 

court members could find that contrary to Appellant’s assertion the front of the 

speaker was not “smashed in.” In light of the entirety of the evidence in the 

case, the court members could also find that the rear plug of the speaker was 

not “repaired” by Appellant himself prior to his 2016 move, and then coincidentally damaged in the same location again in 2016, or that the speaker had 

new “scratches” for which Appellant did not claim. The court members could 

further reasonably conclude Appellant knowingly made these false statements 

with the intent to deceive, in an attempt to deflect suspicion that he falsely 

claimed pre-existing damage was incurred during his 2016 household goods 

shipment.

Drawing every reasonable inference from the evidence of record in favor of 

the Government, we conclude the evidence was legally sufficient to support 

Appellant’s conviction for false official statement beyond a reasonable doubt. 

Additionally, having weighed 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.

B. Mil. R. Evid. 404(b)

1. Additional Background

Appellant was not charged with committing an offense in relation to his 

2011 DPS claim. However, on 30 November 2018, pursuant to Mil. R. Evid. 

404(b), the Government provided notice to the Defense of, inter alia, the following:

Between on or about 29 June 2011 and on or about 23 November 

2011, [Appellant] stole money of a value greater than $500[.00]

by fraudulently claiming portions of his household goods shipment were either damaged or lost and receiving payment for 

items which were not damaged or lost. This is evidence of motive, intent, common scheme/plan, knowledge, and lack of mistake for the 2014 and 2017 claim[s].

Before trial, the Defense submitted a motion in limine which sought to preclude the Government from introducing “any discussion of the total claims 

amounts from [Appellant’s] 2011, 2014, and 2017 [sic] moves, a comparison of 

these claimed amounts, and any evidence discussing the ‘catastrophic’ nature 

of the claims” as “irrelevant, barred by [Mil. R. Evid.] 404(b) . . . and unduly 
United States v. Prescott, No. ACM 39931

27

prejudicial pursuant to [Mil. R. Evid.] 403.” The Government opposed the defense motion. Specifically with regard to evidence of the 2011 claim, the Government’s written opposition reiterated that evidence of the 2011 claim was 

relevant to show Appellant’s motive, intent, common plan or scheme, 

knowledge, and lack of mistake with regard to his 2014 and 2017 claims, as 

well as his “opportunity” to file fraudulent claims. The Government further 

contended the probative value of the 2011 claim was “extremely high,” and the 

danger of any unfair prejudice to Appellant was low.

The military judge conducted a hearing on the motion and received argument from both parties. During argument, civilian trial defense counsel clarified that the Defense agreed the Government should be able to bring up individual items that were claimed in 2011 if it alleged the same items were fraudulently claimed again in 2014 or 2017; however, the Defense contended the 

overall amount Appellant claimed (approximately $32,000.00) and was 

awarded (approximately $16,000.00) in 2011 should be excluded as irrelevant 

and unfairly prejudicial. In response, the circuit trial counsel (CTC) conceded 

the Government lacked the evidence for “a good faith basis to argue” the 2011 

claim was itself fraudulent, but contended the 2011 claim was the “impetus” 

for Appellant’s allegedly fraudulent 2014 and 2017 claims. The CTC argued 

the 2011 claim was relevant to show Appellant’s motive, common plan or 

scheme, and knowledge of the claims process.

In an oral ruling, the military judge denied Appellant’s motion with respect to the total amounts of the 2011, 2014, and 2017 claims. He explained:

I am persuaded there is relevant non-propensity basis for the 

[G]overnment comparing the entirety of these three claims in 

demonstrating the similarities between them. Specifically, I find 

that the evidence of a common scheme or plan as to the 2014 and 

2017 claims is appropriate. In addition, I find that the details of 

the 2011 claim are admissible to demonstrate the accused’s 

knowledge of the claims process, and when and how claims may 

be settled, as well as the amount of money that could potentially 

be claimed through the household goods claims process. The probative value of admitting and contrasting these three similar 

claims provided in three successive moves is not substantially 

outweighed by the danger of unfair prejudice or confusion of the 

issues. The court, however, will entertain a proposed instruction 

by the [D]efense regarding the appropriate use of any evidence 

about the 2011 claim, or the differences between what is claimed 

and what is ultimately paid out to a claimant.
United States v. Prescott, No. ACM 39931

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During trial, the Government introduced evidence of the items and 

amounts Appellant claimed in 2011, 2014, and 2017. The military judge provided the following instruction to the court members before their deliberations 

on findings, and prior to closing arguments by counsel:

Uncharged Misconduct/Other Acts: You may consider evidence 

that the accused filed a 2011 household goods claim, and the circumstances of that claim, for the limited purpose of its tendency, 

if any, to prove a plan or design of the accused to wrongfully obtain money through false claims for broken or missing items 

through subsequent household goods moves, the accused’s 

knowledge of how certain claims are processed and settled, or to 

rebut a contention that the alleged offenses were the result of 

accident or mistake.

Trial defense counsel did not propose an instruction, nor object or seek to augment this instruction with respect to the 2011 claim. At the conclusion of his 

findings instructions, the military judge asked, “Do counsel object to the instructions given or request additional instructions?” Civilian trial defense 

counsel responded, “No, Your Honor.”16

2. Law

We review a military judge’s ruling pursuant to Mil. R. Evid. 404(b) for an 

abuse of discretion. United States v. Hyppolite, 79 M.J. 161, 164 (C.A.A.F. 2019) 

(citation omitted). “A military judge abuses his discretion when: (1) the findings of fact upon which he predicates his ruling are not supported by the evidence of record; (2) if incorrect legal principles were used; or (3) if 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) (citation omitted). “The abuse 

of discretion standard is a strict one, calling for more than a mere difference of 

 

16 Although not raised as an assignment of error, Appellant asserts there was a conflict 

between the military judge’s oral ruling, which Appellant asserts appeared to limit the 

evidence of a common plan or scheme to the 2014 and 2017 claims, and the instruction, 

which permitted the court members to consider the 2011 claim with respect to the 

existence of a common plan or scheme in 2014 and 2017. However, by stating it had no 

objection to the instruction, the Defense affirmatively waived any objection to such a 

discrepancy. See United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2019). Recognizing 

our authority under Article 66, UCMJ, 10 U.S.C. § 866, to pierce an appellant’s waiver 

in order to correct a legal error, we decline to do so. See United States v. Hardy, 77 M.J. 

438, 443 (C.A.A.F. 2017). A fair reading of the military judge’s ruling conveys his intention to permit evidence of “the entirety of [all] three claims” as “evidence of a common scheme or plan as to the 2014 and 2017 claims,” and we find the military judge’s 

instructions as a whole did not unfairly prejudice Appellant.
United States v. Prescott, No. ACM 39931

29

opinion. The challenged action must be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J. 120, 130 

(C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); 

United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).

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

by a person is generally not admissible as evidence of the person’s character in 

order to show the person acted in conformity with that character on a particular occasion. However, such evidence may be admissible for another purpose, 

including, inter alia, proving knowledge, absence of mistake, or the existence 

of a plan. Mil. R. Evid. 404(b)(2). The list of potential purposes in Mil. R. Evid. 

404(b)(2) “is illustrative, not exhaustive.” United States v. Ferguson, 28 M.J. 

104, 108 (C.M.A. 1989). We apply a three-part test to review the admissibility 

of evidence under Mil. R. Evid. 404(b):

1. Does the evidence reasonably support a finding by the court 

members that [the] appellant committed prior crimes, wrongs or 

acts?

2. What “fact . . . of consequence” is made “more” or “less probable” by the existence of this evidence?

3. Is the “probative value . . . substantially outweighed by the 

danger of unfair prejudice”? 

United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 2010) (alterations in original) (quoting United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)). Where 

the military judge does not conduct the balancing inquiry of the third prong of 

the Reynolds test on the record, we afford his ruling less deference. See United 

States v. Barnett, 63 M.J. 388, 396 (C.A.A.F. 2006).

3. Analysis

Appellant asserts the military judge abused his discretion by permitting 

the Government to use evidence of Appellant’s 2011 claim to demonstrate the 

existence of a common plan or scheme with respect to the 2014 and 2017 

claims, pursuant to Mil. R. Evid. 404(b). We disagree.

With regard to the first element of the Reynolds test, Appellant concedes 

the Defense did not contest that sufficient evidence existed with regard to the 

2011 claim. We agree this prong was satisfied.

With regard to the second element, we agree with the military judge that 

evidence of the 2011 claim was relevant to show Appellant’s knowledge of the 

claims process, the absence of mistake as to items Appellant wrongly claimed,

and the existence of a common scheme or plan across the 2014 and 2017 claims. 

Appellant cites United States v. Morrison for the proposition that “uncharged 

acts ‘must be almost identical to the charged acts’ to be admissible as evidence 
United States v. Prescott, No. ACM 39931

30

of a plan or scheme.” 52 M.J. 117, 122 (C.A.A.F. 1999) (quoting United States 

v. Brannan, 18 M.J. 181, 183 (C.M.A. 1984) (additional citation omitted). However, this is such a case. Appellant’s uncharged act of filing a very large household goods claim, including specific claims of damaged and lost items that were 

repeated in subsequent claims, was essentially the same as the charged larceny in 2014 and attempted larceny in 2017. Appellant argues that the 2011 

claim was fundamentally different because the Government did not have evidence the 2011 claim itself was fraudulent. We disagree. Mil. R. Evid. 404(b) 

does not require that the uncharged act itself be criminal. See United States v. 

Dairo, 75 M.J. 867, 871–72 (A. Ct. Crim. App. 2016) (“[T]he legality of the prior 

act is ‘irrelevant to [its] admissibility’ under [Mil. R. Evid.] 404(b).” (second 

alteration in original) (citations omitted)). Moreover, the relevance of the 2011 

claim does not hinge on its criminality. Even if the 2011 claim was itself entirely valid, Appellant’s experience with the process of filing a large household 

goods claim was relevant to show his knowledge of the process and the existence of his subsequent fraudulent plans in 2014 and 2017. For example, the 

court members could reasonably infer that Appellant learned from his 2011 

experience how TSPs go about investigating such claims, their salvage practices, and what types of claimed loss or damage are more or less likely to be 

compensated.

Turning to the final element of the Reynolds test, we note the military judge 

did not specifically articulate his balancing of the probative value against the 

potential for unfair prejudice; accordingly, we afford his ruling less deference. 

See Barnett, 63 M.J. at 396 (explaining the mere recitation that “the probative 

value of th[e] evidence is not substantially outweighed by its prejudicial impact” warrants less deference from appellate courts). Nevertheless, we agree 

with the military judge that the probative value of the 2011 claim was not substantially outweighed by the danger of unfair prejudice. As described above, 

Appellant’s experience with the 2011 claim tended to show he approached his 

2014 and 2017 claims with particular knowledge of the household goods claims 

process and a plan to file large, unjustified claims. 

Appellant argues that the admission of evidence that Appellant’s 2011 

claim exceeded $30,000.00 was “both prejudicial and confusing” because it created an inference the 2011 claim was also fraudulent. We are not persuaded 

such concerns substantially outweighed the probative value. It is the similarities between the 2011 claim and subsequent claims that establish its relevance 

as to Appellant’s knowledge and subsequent scheme or plan. Such prejudice is 

not unfair. Whether or not trial counsel misused or mischaracterized the evidence in argument to suggest the 2011 claim was also fraudulent—addressed 

below—is a separate question and not inherent in the military judge’s ruling. 
United States v. Prescott, No. ACM 39931

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Appellant further argues there was other, less unfairly prejudicial evidence 

available of Appellant’s knowledge of claims processes. Appellant cites testimony that he had previously served as a claims officer, and suggests the evidence of the 2014 and 2017 claims themselves demonstrate he knew how to file 

a household goods claim. However, evidence of the 2011 claim goes well beyond 

this sort of generalized knowledge of the claims process. The 2011 claim indicated Appellant had, through personal experience and before he filed his 2014 

claim, learned how TSPs adjudicate such claims, what types of loss or damage 

were likely to be compensated, and more generally that he personally could 

obtain significant amounts of money through the claims process. 

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

permitting the Government to introduce evidence of Appellant’s entire 2011 

claim as evidence of his knowledge of the claims process, the absence of mistake, and the existence of a scheme or plan.

C. Trial Counsel’s Findings Argument

1. Additional Background

During the CTC’s argument on findings, he noted similarities between the 

items Appellant claimed in 2011, 2014, and 2017, including, inter alia, missing 

shelves from bookcases, missing remote controls, missing weights, a damaged 

speaker, and a damaged music stand. He further noted the large number of 

total items claimed each year, the large number of items Appellant specifically 

claimed were missing, and the large payments Appellant obtained in 2011 and 

2014—approximately $16,000.00 and $33,000.00, respectively. Appellant concluded this portion of his argument, “Through this series of claims, members, 

the accused engaged in a plan, a scheme to fraudulently obtain money from his 

transportation service providers.”

Later in his argument, the CTC referred to the inspections of transit-related damage to Appellant’s property conducted by the claims inspectors BW, 

MM, and MP in 2011, 2014, and 2017, respectively. He argued:

This first [anticipated defense argument] that we’re going to 

walk through in [sic] this transit-related damage means it must 

be new damage. That’s not what the actual testimony was. The 

testimony was that they examine it, and if it appears that it 

could have been related to the transit, they will label it as 

transit-related damage. But you also heard testimony that one 

thing that would be helpful would be prior photos. Right? Prior 

information about the item, understanding what it looked like 

before, has it ever looked like this before? Members, you all have 

been provided that information. You don’t rely on [BW] or [MM]

or [MP, the three claims inspectors]. You’re the fact finder in this 
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32

case. You are the fact finders in this case. You look at the photos 

that have been provided to you, and you look at those preexisting

damages, and you’ll see what has been going on here, this scheme 

and plan that the accused has been engaging in from 2011 to 

2017.

(Emphasis added).

At a later point, the CTC addressed the significance of the “parts box” which 

was marked as delivered on the 2016 inventory but could not be located by 

AAction employees at Appellant’s house on the day of delivery. The CTC argued:

There is an issue with the parts box raised by [BT] and [TP], 

right? They told you about we couldn’t find the parts box. We 

couldn’t find the parts box. We didn’t know where the parts box 

was. We couldn’t find pieces to put things back together. I will 

turn your attention to Prosecution Exhibit 27. It’s on page 1. It’s 

line item number one on that page. It is the parts box. And I’d 

ask you to look over to the Shipper Check Destination and look 

at the “X” that is in that box as received and ask yourself what 

is going on at this house? What’s going on at that house? You 

just look back to the 2014 and 2011 claims, and you see the plan, 

the scheme, the chaos caused by [Appellant] in these moves to obtain money because it’s received, and then when the workers 

can’t find the parts they need -- or when they need the parts to 

put things together, they can’t find them.

(Emphasis added).

Still later, the CTC commented on evidence suggesting that—contrary to 

his testimony—Appellant knew his carbon copy of the 2016 inventory did not 

accurately reflect which items had been delivered to his residence at Minot 

AFB, and the improbability that Appellant’s claims for items that were actually delivered were attributable to innocent mistakes. He argued: 

[I]s it probable that he truly was mistaken based on this? It’s 

not, not for someone with knowledge of the claim system. Not for 

someone with knowledge of how the claims process works. Not 

for someone who has set up this elaborate scheme -- this elaborate 

plan to do this in three consecutive moves. Did he actually believe 

that despite the items sitting in his home? What’s the probability of that?

(Emphasis added).
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Trial defense counsel did not object to any of the portions of argument 

quoted above.

2. Law

“We review prosecutorial misconduct and improper argument de novo and 

where . . . no objection is made, we review for plain error.” United States v. 

Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citing United States v. Andrews, 77 M.J. 

393, 398 (C.A.A.F. 2018)). “Plain error occurs when (1) there is error, (2) the 

error is plain or obvious, and (3) the error results in material prejudice to a 

substantial right of the accused.” United States v. Fletcher, 62 M.J. 175, 179 

(C.A.A.F. 2005) (citation omitted). The burden of proof under a plain error review is on the appellant. See United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 

2017) (citation omitted).

“Improper argument is one facet of prosecutorial misconduct.” Id. (citation 

omitted). “Prosecutorial misconduct occurs when trial counsel ‘overstep[s] the 

bounds of that propriety and fairness which should characterize the conduct of 

such an officer in the prosecution of a criminal offense.’” United States v. Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014) (quoting Fletcher, 62 M.J. at 179). Such 

conduct “can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, [for example], a constitutional provision, 

a statute, a Manual rule, or an applicable professional ethics canon.” Id. at 160 

(quoting United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996)). 

“A prosecutorial comment must be examined in light of its context within 

the entire court-martial.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 

2005) (citation omitted). “When a trial counsel makes an improper argument 

during findings, ‘reversal is warranted only when the trial counsel’s comments 

taken as a whole were so damaging that we cannot be confident that the members convicted the appellant on the basis of the evidence alone.’” United States 

v. Norwood, 81 M.J. 12, 19 (C.A.A.F. 2021) (quoting Andrews, 77 M.J. at 401–

02). “We weigh three factors to determine whether trial counsel’s improper arguments were prejudicial: ‘(1) the severity of the misconduct, (2) the measures 

adopted to cure the misconduct, and (3) the weight of the evidence supporting 

the conviction.’” Andrews, 77 M.J. at 402 (quoting Fletcher, 62 M.J. at 184).

3. Analysis

Citing the portions of the Government’s findings argument quoted above, 

Appellant contends the CTC improperly argued that Appellant’s 2011 claim 

was fraudulent. Appellant notes that during the Mil. R. Evid. 404(b) motion 

hearing described above, the CTC conceded the Government did not have “a 

good faith basis to argue” the 2011 claim was fraudulent “based on the evidence” it had. In addition, the military judge ruled that evidence of the 2011 

claim was admissible as “evidence of a common scheme or plan as to the 2014 
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34

and 2017 claims,” and he instructed the court members they could consider 

evidence of the 2011 claim for “the limited purpose of its tendency, if any, to 

prove a plan or design of the accused to wrongfully obtain money through false 

claims for broken or missing items through subsequent household goods 

moves.” (Emphasis added). Therefore, Appellant contends, it was error for the 

CTC to argue Appellant had a criminal scheme or plan in 2011.

Because the Defense did not object at trial, the initial question is whether 

the CTC’s argument rose to the level of plain or obvious error. Although the 

CTC did not specifically argue that the 2011 claim in particular was fraudulent, in each instance quoted above he spoke about the series of claims in such 

a way as to at least imply Appellant had fraudulent intent in 2011, and thereby 

exceeded the scope of the military judge’s ruling. For purposes of our analysis, 

we will assume the CTC’s comments were plainly erroneous.

However, after considering the three factors the CAAF set forth in Fletcher, 

we conclude such an error did not materially prejudice Appellant’s substantial 

rights. As to the first factor, we find the severity of the error to be slight. The 

fact that trial defense counsel did not object to any of these instances is some 

indication of their immateriality. See United States v. Gilley, 56 M.J. 113, 123 

(C.A.A.F. 2001) (citation omitted). In addition, each of these four instances was 

a brief passing reference in a lengthy argument that spanned approximately 

30 pages of the transcript. More significantly, although the argument may 

have exceeded the permissible use of evidence of the 2011 claim by implying 

that claim was also fraudulent, it was nevertheless very closely related to a 

permissible use. Although the military judge’s ruling did not permit the Government to argue that the 2011 claim itself was fraudulent, the Government

was allowed to argue evidence of the 2011 claim demonstrated Appellant’s subsequent claims in 2014 and 2017 were fraudulent. This narrow distinction was 

not of a nature to materially affect the court members’ deliberations. Indeed, 

the court members’ findings of not guilty as to the charged larceny in 2014 

indicate they were not persuaded Appellant had a common fraudulent scheme 

or plan from 2011 to 2017.

With regard to the second Fletcher factor, because the Defense did not object, the military judge did not specifically address the improper argument. 

However, the military judge did provide other findings instructions that we 

may presume had some prophylactic effect. See United States v. Taylor, 53 M.J. 

195, 198 (C.A.A.F. 2012) (“Absent evidence to the contrary, this Court may 

presume that members follow a military judge’s instructions.” (citations omitted)). He instructed the court members that argument by counsel was not evidence, and the members were to decide the issues based on the evidence and 

the instructions from the military judge. More particularly, he instructed that 

the members could consider evidence of the 2011 claim for the “limited purpose
United States v. Prescott, No. ACM 39931

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of its tendency, if any, to prove a plan or design . . . to wrongfully obtain money 

through false claims for broken or missing items through subsequent household 

goods moves, . . . .” (Emphasis added). Not only is there no evidence the court 

members misused the evidence, but as stated above their findings indicate they 

were not persuaded by the Government’s argument regarding a common plan 

or scheme across multiple moves and claims. 

Finally, with regard to the strength of the evidence, as described above with 

respect to legal and factual sufficiency, the Government presented a compelling case that Appellant knowingly tried to obtain by false pretenses over 

$500.00 by filing a claim for items for which he knew he was not entitled to 

payment. To be sure, Appellant testified in his defense that he was not guilty 

of the allegations, but the court members evidently and reasonably found much 

of his testimony was not credible. Given the nature of both the evidence in the 

case and of the improper argument, we are not persuaded the CTC’s error affected the court members’ findings of guilty as to attempted larceny. The 

strength of the evidence supporting Appellant’s conviction for false official 

statement is a closer question, but for similar reasons we find no prospect that 

the erroneous argument played any substantial role in the court members’ 

findings.

Weighing the Fletcher factors together and considering the CTC’s comments in context, we are confident the court members properly convicted Appellant on the basis of the evidence alone. 

D. Sentence Severity

1. Law

We review issues of sentence appropriateness de novo. United States v. 

Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270, 

272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find

correct in law and fact and determine should be approved on the basis of the 

entire record. Article 66(c), UCMJ. “We assess sentence appropriateness by 

considering the particular appellant, the nature and seriousness of the offense[s], the appellant’s record of service, and all matters contained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015) 

(en banc) (per curiam) (alteration in original) (citing United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Although we have great discretion to determine whether a sentence is appropriate, we have no authority 

to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

2. Analysis

Appellant contends his sentence to a dismissal is inappropriately severe 

and this court should set it aside. He cites the extensive statements of support 
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36

from numerous individuals that he submitted both during presentencing proceedings and to the convening authority for clemency purposes, as well as his 

excellent record of duty performance. In addition, he cites the “confusing and 

inherently subjective” household goods claims process which by its nature involves negotiation. Furthermore, he contends it is a mitigating circumstance 

that he “did not expect to receive the [full] amount he claimed.”

We are not persuaded. We recognize the numerous attestations of support 

from Appellant’s family, friends, former supervisors, peers, and subordinates, 

as well as his duty performance and extensive volunteer work. We have also 

taken into account the particular context for Appellant’s offenses and the dynamics of the household goods claims process. We are confident the court members took these considerations into account as well when they adjudged a sentence of a dismissal alone, without confinement, where Appellant faced a maximum term of confinement for ten years. Appellant was convicted of a serious 

offense, attempting to steal a significant amount of money to which he knew 

he had no right. In addition, he was convicted of making a false official statement. In light of their findings, the court members may have also found, and 

thus were permitted to consider for rehabilitation purposes in accordance with 

the military judge’s mendacity instruction, that Appellant willfully provided 

materially false testimony. However commendable Appellant’s behavior may 

have been in other respects, having given individualized consideration to Appellant, the nature and seriousness of the offenses, Appellant’s record of service, and all other matters contained in the record of trial, we do not find his 

dismissal is inappropriately severe as a matter of law.

E. Convening Authority’s Jurisdiction to take Action

1. Additional Background

On 30 October 2018, the 14th Air Force commander, Major General 

(Maj Gen) Whiting, referred the charges and specifications for trial by a general court-martial. On the same day he convened a general court-martial of 

officer members by Special Order A-004, Headquarters 14th Air Force. 

Maj Gen Whiting subsequently amended the convening order and appointed 

new court members in Special Order A-1, Headquarters 14th Air Force, dated 

8 October 2019. On each of these dates, the 14th Air Force commander was a 

properly designated general court-martial convening authority (GCMCA) as 

identified in Department of the Air Force Special Orders G-18-001 and G-19-

001, dated 18 March 2018 and 15 January 2019, respectively, and in accordance with Article 22(a)(7), UCMJ, 10 U.S.C. § 822(a)(7). 

Appellant was arraigned on 20 November 2018 and, after two continuances, his trial began on 28 October 2019. The court-martial announced its 

findings on 8 November 2019. Following the announcement of findings, after 
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consultation with the parties the military judge continued the proceedings until 30 December 2019.

On 20 November 2019, Maj Gen Shaw was appointed as the 14th Air Force 

commander.

The National Defense Authorization Act for Fiscal Year 2020 (NDAA) created the United States Space Force as a separate armed service within the 

Department of the Air Force, effective 20 December 2019. See NDAA for Fiscal 

Year 2020, Pub. L. No. 116-92, § 952, 133 Stat. 1198, 1561 (2019); see also 10 

U.S.C. § 9081. The NDAA also redesignated Air Force Space Command, of 

which 14th Air Force was a subordinate command, as the United States Space 

Force. On 20 December 2019, the Secretary of the Air Force redesignated 14th 

Air Force as Space Operations Command (SpOC). The Secretary’s memorandum additionally stated, inter alia, that “[a]ll U.S. Air Force authorities and 

policies, to include the application of any provision of law, continue to apply to 

all military and civilian personnel assigned to the U.S. Space Force.” 

Appellant’s court-martial reconvened on 30 December 2019 and the court 

members sentenced Appellant to be dismissed from the Air Force.17

On 11 February 2020, the Secretary of the Air Force issued a memorandum

identifying court-martial convening authorities within the United States 

Space Force, and expressly identified the SpOC commander as a GCMCA. The 

memorandum further provided, “Court-martial convening authorities for units 

having one or more predecessor units whose commanders were court-martial 

convening authorities will, upon activation, assume the court-martial convening authority responsibilities of their predecessor unit commanders for all matters then pending.” 

On 2 March 2020, the Defense filed a post-trial motion requesting the military judge set aside the findings of guilty and the sentence and dismiss “the 

court-martial” with prejudice. The Defense contended that the court-martial’s 

jurisdiction ended when the convening command, 14th Air Force, ceased to exist on 20 December 2019. The Government filed its opposition to the defense 

motion on 11 March 2020.

The military judge denied the defense motion in a written ruling dated 26 

March 2020. He held that the court-martial had been properly convened and, 

with respect to the 30 December 2019 sentencing proceeding,

there is nothing in the . . . establishment of the Space Force on 

20 December 2019 that suggests that a prior authorized action 

 

17 One of the original ten members of Appellant’s court-martial was excused for cause 

from the sentencing proceedings.
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by a convening authority would subsequently become invalid or 

should be treated as a nullity. Accordingly, the court continued 

to be properly convened through the announcement of sentence 

on 30 December 2019. As US v. Prescott was properly convened 

against a person subject to the [UCMJ], there was and is ongoing 

jurisdiction.

The military judge further ruled that the question of who was the correct person to take action on the results of the court-martial was not ripe for decision.

In his clemency submission, Appellant asserted that Maj Gen Shaw, as the 

commander of SpOC, lacked authority to take action on Appellant’s sentence 

for several reasons. The SpOC staff judge advocate (SJA) disagreed and advised Maj Gen Shaw did have such authority. On 3 June 2020, Maj Gen Shaw 

approved Appellant’s sentence.

2. Law

We review questions of court-martial jurisdiction de novo. United States v. 

Hale, 78 M.J. 268, 270 (C.A.A.F. 2019) (citing EV v. United States, 75 M.J. 331, 

333 (C.A.A.F. 2016)). “When challenged, the [G]overnment must prove jurisdiction by a preponderance of evidence.” Id. (citing United States v. Morita, 74 

M.J. 116, 121 (C.A.A.F. 2015)). We also review questions of statutory and regulatory interpretation de novo. United States v. Atchak, 75 M.J. 193, 195 

(C.A.A.F. 2016) (citing United States v. Vargas, 74 M.J. 1, 5 (C.A.A.F. 2014)); 

United States v. Watson, 69 M.J. 415, 419 (C.A.A.F. 2011) (citing United States 

v. Estrada, 69 M.J. 45, 47 (C.A.A.F. 2010)).

“Jurisdiction depends upon a properly convened court, composed of qualified members chosen by a proper convening authority, and with charges 

properly referred.” United States v. Adams, 66 M.J. 255, 258 (C.A.A.F. 2008) 

(citations omitted). “When charges are referred to a court-martial, that court 

retains jurisdiction over the case from the point of referral through authentication of the record by the military judge, except when the convening authority 

withdraws the charges from the court-martial under [Rule for Courts-Martial 

(R.C.M.)] 604(a).” United States v. Williams, 55 M.J. 302, 304 (C.A.A.F. 2001) 

(citation omitted).

Article 22(a)(8), UCMJ, 10 U.S.C. § 822(a)(8), provides that any commanding officer designated by the service secretary concerned may convene a general court-martial. See also 10 U.S.C. § 822(a)(7) (“General courts-martial may 

be convened by . . . the commanding officer of . . . an air force . . . .”); R.C.M. 

504(b)(1) (“Unless otherwise limited by superior competent authority, general 

courts-martial may be convened by persons occupying positions designated in 

Article 22(a) and by any commander designated by the Secretary concerned or

empowered by the President.”). Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1), 
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provides, “Under regulations of the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person 

exercising general court-martial jurisdiction may act under this section in 

place of the convening authority.” Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2), 

provides, “Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 

3. Analysis

Through counsel, Appellant contends that the 14th Air Force commander—

Maj Gen Shaw at the time—ceased to be a GCMCA on 20 December 2019, when 

14th Air Force was redesignated SpOC as part of the United States Space 

Force without any explicit provision that the SpOC commander was a convening authority. Appellant acknowledges the Secretary did subsequently explicitly designate the SpOC commander as a GCMCA on 11 February 2020, before 

Maj Gen Shaw took action on Appellant’s sentence. However, Appellant reasons that because neither Maj Gen Shaw nor any superior authority transferred Appellant’s case to another convening authority before 20 December 

2019, from 20 December 2019 until 11 February 2020 there was no existing 

convening authority for Appellant’s court-martial. Appellant further argues 

the Secretary’s 11 February 2020 memorandum purporting to give the SpOC 

commander GCMCA authority over existing courts-martial “does not account 

for the fact that a lapse [of] almost two months in GCMCA authority existed,” 

and therefore Maj Gen Shaw did not “clearly ha[ve] the jurisdiction or authority to take action” on Appellant’s court-martial. Appellant asks this court to set 

aside the convening authority’s action and remand the case for a new post-trial 

process and action.

We find no cause to remand Appellant’s case for a new convening authority 

action. The basic flaw in Appellant’s argument is that jurisdiction is not predicated on the continuous existence of the convening authority that originally 

convened the court, or of any particular GCMCA. Instead, the UCMJ relies 

upon actors with appropriate authority taking actions at the relevant point in 

time. For purposes of analysis, we accept Appellant’s contention that between 

20 December 2019 and 11 February 2020 Maj Gen Shaw was not a GCMCA 

because the SpOC commander had not been explicitly granted such authority. 

However, that is immaterial. As Appellant concedes, his court-martial was 

properly convened by Maj Gen Whiting as the 14th Air Force commander. As 

the military judge correctly concluded, the court-martial’s jurisdiction over the 

referred charges and specifications continued through the sentencing proceeding, notwithstanding the redesignation of 14th Air Force as SpOC in the interim. See Williams, 55 M.J. at 304 (citation omitted). Maj Gen Shaw may have 

lacked authority to take action on the sentence prior to 11 February 2020, but 
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as of that date the Secretary’s memorandum clearly identified the SpOC commander as a GCMCA and as having responsibility for Appellant’s court-martial. This clear expression of secretarial intent was more than sufficient to establish Maj Gen Shaw’s authority to take action on 3 June 2020 in accordance 

with Article 60(c), UCMJ. 

As a separate assignment of error, pursuant to United States v. Grostefon, 

12 M.J. 431, 435 (C.M.A. 1982), Appellant personally reasserts the position 

argued in the Defense’s post-trial motion—that the court-martial itself lost jurisdiction once the 14th Air Force commander ceased to be a GCMCA, and 

therefore we should set aside the findings of guilty and the sentence. We disagree for reasons similar to those explained above. Appellant fails to identify 

authority for the proposition that a properly convened court-martial becomes, 

in the military judge’s words, “a nullity” simply because the convening command is redesignated as a new organization whose commander has not been 

expressly granted GCMCA authority. To the contrary, we conclude it does not. 

See Williams, 55 M.J. at 304 (citation omitted).

F. Post-Trial Delay

Appellant was sentenced on 30 December 2019. On 2 March 2020, the Defense submitted a post-trial motion to dismiss the findings and sentence, asserting the court-martial’s jurisdiction had ceased to exist when the convening 

command, 14th Air Force, ceased to exist on 20 December 2019 with the advent 

of the United States Space Force, as analyzed above. The Government submitted its written opposition to the motion on 11 March 2020. The military judge 

issued his ruling denying the motion on 26 March 2020.

The SJA signed his recommendation (SJAR) to the convening authority on 

17 April 2020. The Defense’s clemency submission on behalf of Appellant was 

dated 18 May 2020. The SJA signed the first addendum to the SJAR on 20 May 

2020 and, although it did not contain “new matter,” served it on the Defense in 

order to afford Appellant an additional opportunity to respond. Trial defense 

counsel submitted an additional response on 30 May 2020, and the SJA signed 

a second addendum for the convening authority on 1 June 2020. The convening 

authority took action on the sentence on 3 June 2020.

Appellant’s case was docketed with this court on 24 June 2020. Appellant 

filed his assignments of error to this court on 20 May 2021 after being granted 

eight enlargements of time in which to submit his appeal. The Government 

submitted its answer brief on 25 June 2021, and Appellant submitted his reply 

brief on 12 July 2021. 

“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) (citations omitted). The 156 days that elapsed 
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between sentencing and action exceeded the 120-day threshold for a facially 

unreasonable post-trial delay the Court of Appeals for the Armed Forces 

(CAAF) established in Moreno, 63 M.J. at 142. Similarly, the delay between 

docketing at this court and the issuance of this opinion exceeds Moreno’s 18-

month threshold for a facially unreasonable appellate delay. Id. Accordingly, 

we have considered the four factors the CAAF identified in Moreno to assess 

whether Appellant’s due process right to timely post-trial and appellate review 

has been violated by either delay: “(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.” Id. 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)). 

However, the CAAF has held that where there is no qualifying prejudice 

from the delay, there is no due process violation unless the delay is so egregious 

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

the military justice system.” United States v. Toohey, 63 M.J. 353, 362 

(C.A.A.F. 2006). In Moreno, the CAAF identified three types of cognizable prejudice for purposes of an appellant’s due process right to timely post-trial review: (1) oppressive incarceration; (2) anxiety and concern; and (3) impairment 

of the appellant’s ability to present a defense at a rehearing or his grounds for 

appeal. 63 M.J. at 138–39 (citations omitted). Appellant received no sentence 

to confinement and has not been subjected to incarceration, oppressive or otherwise. Moreover, we perceive no impairment to Appellant’s ability to present 

grounds for appeal, and where an appellant’s substantive appeal fails, his ability to present a defense at a rehearing is not impaired. Id. at 140. With regard 

to anxiety and concern, “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 [appellants] awaiting an 

appellate decision.” Id. Appellant has made no showing of such particularized 

anxiety or concern with respect to either of the delays in question, and we perceive none. 

Accordingly, we consider whether the delays in this case were so egregious 

as to adversely affect the public’s perception of the military justice system. 

Toohey, 63 M.J. at 362. We conclude they were not. 

With respect to the delay between Appellant’s trial and the convening authority’s action, we note the delay is partly attributable to the adjudication of 

Appellant’s post-trial motion to dismiss. In addition, Appellant’s lengthy trial 

was factually complex and the record includes more than 2,000 pages of transcript and more than 270 exhibits. Furthermore, the defense clemency submission was lengthy, including two memoranda from trial defense counsel, a 

lengthy memorandum from Appellant himself, and 36 other attachments. 
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Moreover, the SJA afforded the Defense an additional opportunity to respond 

to the first SJAR addendum; although this consumed an additional two weeks, 

we do not find that members of the public would consider this additional opportunity to be heard offensive to Appellant’s due process rights. Considering 

all the circumstances, we find the delay was not egregious and did not impugn 

the fairness and integrity of the military justice system.

With regard to appellate delay, we note this court has issued its opinion 

within four months of the 18-month Moreno standard. The delay is largely attributable to the eight enlargements of time Appellant requested and was 

granted over the Government’s opposition. In addition, on 16 February 2022, 

Appellant submitted a motion for leave to file a supplemental assignment of 

error (issue (11)), which this court granted on 25 February 2022. In doing so, 

Appellant “recognize[d] that by filing a supplemental assignment of error, it 

may increase the time necessary for this Court to review his case . . . . [Appellant] understands his right to speedy appellate review and knows that this

supplemental assignment of error may be counted against him for speedy appellate purposes.” The Government submitted its timely supplemental answer 

to issue (11) on 24 March 2022. Furthermore, as noted above, the nature of 

Appellant’s trial was highly complex—which is reflected in the length of the 

parties’ briefs to this court—and the record is very extensive. In the absence of 

any particularized prejudice to Appellant, we find the delay did not violate Appellant’s right to due process.

Finally, 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 in this case even in the absence of a due process violation. See 

United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After considering the 

factors enumerated in United States v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim. 

App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude no such relief is 

appropriate.

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). 
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Accordingly, the approved findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court