## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_______ _______ __________

No. ACM 38864

_______ _______ __________

UNITED STATES Appellee

v.

Leon A. BROWN IV Captain (O

- 3 ) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United S tates Air Force Trial Judiciary

Decided 6 Ju ly 2017

_______ _______ __________ Military Judge: Natalie D. Richardson.

Approved sentence: Dismissal , confinement for 25 years, and forfeiture of all pay and allowances. Sentence adjudged 8 December 2014 by
GCM convened a t Minot Air Force Base, North Dakota

. For Appellant: Major Mark C. Bruegger, USAF; Major Jeffrey A. Davis, USAF; Frank J. Spinner, Esquire.

For Appellee: Major Tyler B. Musselman, USAF; Major Mary Ellen Payne, USAF; Major J. Ronald Steelman III, USAF; Maj or Meredith L. Steer, USAF; Gerald R. Bruce, Esquire

. Before MAYBERRY, JOHNSON, and SPERANZA

, Appellate Military Judges

. Judge SPERANZA delivered the opinion of the c ourt, in which Senior Judge s MAYBERRY and JOHNSON joined.

_______ _______ __________

This i s an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________United States v. Brown , No. ACM 38864

2 SPERANZA , Judge:

A military judge, sitting as a general court

- martial, convicted Appellant, contrary to his pleas, of providing alcohol to minors on divers occasions; wrongfully distributing marijuana on divers occasions; wrongfully distributing psilocybin (mushrooms) on divers occasions; wrongfully using mushroom s on divers occasions; sexually assaulting a child , GB ; 1 behaving in adisgraceful and dishonorable manner that seriously compromised his standing as an officer by wrongfully and dishonorably organizing individuals into a violent gang ; wrongfully communicating a threat to AL on divers occasions; wrongfully comm unicating to MH a threat to injure ME by paying someone to assault ME; receiving consideration for arranging for KW, PW, WK, and other unnamed persons to engage in sexual intercourse with others; unlawfully entering ML’s house; sexually assaulting a child, FT ; 2 wrongfully threatening to hurt, injure, or kill Captain (Capt) CM; wrongfully threatening to hurt, injure, or kill Special Agent (SA) JG; and wrongfully threatening to hurt, injure, or kill Airman Basic (AB) JS , in violation of Articles 92, 112a, 120 b, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 8 92, 912a, 920b, 933, 9 34

. 3 The military judge sentenced Appellant to a d ismissal, confinement for 25 years, and forfeiture of all pay and allowances. The military

1 The military judge found Appellant not guilty pursuant to Rule for Court s

- Martial (R

. C

. M

. ) 917 of raping GB in violation of Article 120b,UCMJ, 10 U.S.C. § 920b, but convicted Appellant of t he lesser

- included offense of sexual assault, also in violation of Article 120b, UCMJ.

2 The military judge found Appellant not guilty pursuant to R

. C

. M

. 917 of raping FT in violation of Article 120b, UCMJ, but convicted Appellant of the lesser

- included offense of sexual assault, also in violation of Article 120b, UCMJ.

3 The military judge acquitted Appellant of conspiracy to pander; distribution ofmethamphetamine; distribution of heroin; distribution of Vicodin; distribution of ecstasy; distribution of l ysergic acid diethylamide (LSD); sexual assault of KW by administering KW a drug or intoxicant; sexual assault of KW by encouraging an unknown individual to commit a sexual act upon KW by administering KW a drug or intoxicant; conduct unbecoming an officer for organizing individuals under the age of 18 years to have sex for hire; obstruction of justice by requesting Airman Basic (AB) JS have others give AL marijuana or cash if she refused to testify or “have others beat her up or kill her if she refused the offer” ; obstruction of justice by requesting
AB ET have others give AL marijuana or cash if she refused to testify or “ have others beat her up or kill her if she refused the offer ” ; and communicating a threat to hurt, injure, or kill AB JS. The military j udge granted the Defense’s motion for a finding of not guilty pursuant to R

. C

. M

. 917 and found Appellant not guilty of raping FT. Appellant was also found guilty by several exceptions and substitutions.United States v. Brown , No. ACM 38864

3 judge credited Appell ant with 60 days of pretrial confinement credit. The convening authority approved the adjudged sentence.

On appeal, Appellant argues that all of his convictions, except his provision of alcohol to minors, distribution of marijuana, mushroom use, and
threa ts to AL, are legally and factually insufficient. 4 Appellant also claims the Government failed to meet its discovery obligations; 5 he was deprived his constitutional right to effective assistance of counsel at trial ; 6 the military judge erred in not granti ng additional sentencing credit for pretrial punishment Appellant suffered during a search of his pretrial confinement sleeping
quarters; and post

- trial delays in his case warrant meaningful relief.

We find there is insufficient evidence to support Appell ant ’s conviction of unlawful entry. We also find that Appellant was subjected to pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C. § 813, and is, therefore, entitled to additional, modest confinement credit. We find no other prejudicial error

, affirm the remaining findings, and reassess the sentence below

.

I. B ACKGROUND
Appellant and at least one other local civilian criminal decided to form a “Crips” gang in M inot, North Dakota . Appellant

— referred to by the gang
members and their associates as “ Captain ”

— became the self

- proclaimed leader, or “OG,” of this gang, whose criminal enterprise tended to revolve
around local teenage girls.

II. D ISCUSSION

A. Legal and Factual Sufficiency

Appellant essentially maintains that most of his convictions were obtained through the testimony of unbelievable witnesses and the judge’s misinterpretation of the evidence

, to include his recorded pretrial confinement
conversations

. However, the law, and indeed the facts of this case, cause us to
decline Appellant ’s claims and find all but one of his convictions legally and factually sufficient for the reasons discussed below

.

4 The legal and factual sufficiency of Appellant’s di stribution of mushrooms on divers
occasions is r aised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

5 Raised pursuant to Grostefon, 12 M.J. 431.

6 Raised pursuant to Grostefon, 12 M.J. 431.United States v. Brown , No. ACM 38864

4 We have a statutory mandate to “ conduct a de novo review of both the legal and factual sufficiency of a conviction. ” United States v. Walters , 58 M.J.

39 1, 395 (C.A.A.F. 2003).

The test for legal sufficiency of the evidence is “whether, considering theevidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.”
Un ited States v. Turner , 25 M.J. 324, 324 (C.M.A. 1987); see also United States v. Humpherys , 57 M.J. 83, 94 (C.A.A.F. 2002). The “reasonable doubt” standard does not require that the evidence be free from conflict. United States v. Lips , 22 M.J. 679, 684 (A .F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution.” United States v. Barner , 56 M.J. 131, 134 (C.A.A.F. 2001). The question , therefore, i s whether “ a reasonable factfinder reading the evidence one way could have found all the elements of the offense beyond a reasonable doubt. ” United States v. Gutierrez

, 73 M.J. 172, 175 (C.A.A.F. 2014) (quoting United States v. Oliver , 70 M.J. 64, 68 (C.A. A.F. 2011)).

The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observedthe witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner , 25 M.J. at 325; see also United States v. Reed , 54 M.J. 37, 41 (C.A.A.F. 2000). 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” t o “make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a
reasonable doubt.” United States v. Washington , 57 M.J. 394, 399.

1. Sexual Assault of GB

The military judge convicted Appellant of sexu al assault of a child for penetrating GB’s vulva with his penis when, at the time, GB was only 15 years old. Appellant committed this offense during a multi

- day party he hosted

— the “Project X” part y. GB went to this party with her teenage friends,
KW and K H. Another teenage girl, AL, met GB at the party. GB, KH, KW

, and AL testified at trial.

At the time of the party, KW had known Appellant for several months. KW testified that at the party she told Appellant GB’s age. KW described walking into Appellant’s bedroom and seeing Appellant having sexual intercourse with GB. She recounted Appellant and GB being naked with Appellant on top.

GB explained that she met Appellant at this party when she was 15 years
old . At the party, GB g ot extremely drunk. She r ememb ered only “flashbacks”United States v. Brown , No. ACM 38864

5 of the evening through the next morning. In pertinent part, GB recounted spending time with Appellant in his living room, being on Appellant’s bed and picking her bra up off of the bedroom floor, waking up in the morning
with her clo thes on and nobody else in the bedroom, returning to the downstairs, and “start[ing] the party again.”

KH turned 16 years old the same month as the “Project X” party. She too first met Appellant at the party. KH described “hanging out” and “drinking
when [Appellant] brought the booze home.” KH described GB as “really drunk” and “puking everywhere.” KH observed Appellant and GB together on a couch, Appellant telling GB she was “really pretty,” Appellant and GB

“ making out, ” and the two eventually going upst airs. KH also described seeing GB the next morning in Appellant’s bedroom, GB ’s clothes on the floor,
and GB naked except for a bedsheet . Appellant was in the bathroom at the
time.

AL met Appellant at the “Project X” party. AL described GB as being
“trash ed” the first evening of the party. AL also recounted a conversation she had with Appellant the next day during which Appellant admitted to having sex with GB and claimed “he would have got [sic] her pregnant if he hadn’t got [sic] the Plan B pill

. . . . ” Appellant later became GB’s boyfriend and exchanged text messages with AL related to his relationship with GB. Appellant’s text message communications with AL included the following:

[Appellant:] Did [GB] tell you I got her prego? Lol

[AL:] The night of u r party??

[Appellant:] Another time.

As Appellant notes on appeal, e ach of these witnesses was thoroughly

cross

- examined by Appellant ’s trial defense counsel. Nonetheless, Appellant argues that his conviction of this offense is neither legally n or factuall y sufficient because “penetration was not proven,” “KW lacked credibility,” and “KH’s testimony is not credible.” The military judge determined otherwise, at least with respect to this offense . Considering the evidence in the light most favorable to the pr osecution and drawing every reasonable inference from the evidence in favor of the prosecution, we find a reasonable factfinder could have found all the essential elements of this offense beyond a reasonable doubt. Moreover, after weighing the evidence pre sented at trial regardingAppellant’s sexual assault of GB and making allowances for not having observed the witnesses who testified as to this offense, we are convinced beyond
a reasonable doubt Appellant sexually assaulted a child, GB, by penetrating
GB’ s vulva with his penis.United States v. Brown , No. ACM 38864

6 2. Sexual Assault of FT

The military judge convicted Appellant of sexual ly assau lt ing FT, a child
who was only 14 years old at the time, by penetrating FT’s vulva with his penis , between on or about 1 September 2013 and on or about 30 October 2013

. FT did not testify at trial. FT’s brother

— JP

— and KW testified. In addition,
JG and AB DE testified about incriminating statements and admissions Appellant made to them while they were confined together during Appellant’s pretrial confinement at Minot Air Force Base ( AFB ) , N orth Dakota . Audiorecordings of Appellant’s pretrial confinement conversations were also admitted into evidence.

JP testified he met Appellant at a party at Appellant’s home approximately one year after the “Project X” pa rty. While at the party, JP recounted overhearing Appellant tell other partygoers that FT “f [ *** ] s like a boss.” JP told Appellant that his sister, FT, was only 14 years old. According to JP, Appellant was “shocked and appalled” and told JP that “he though t she was 17.”

KW introduced FT to Appellant and told Appellant FT’s age

— younger than 15 years old at the time. On direct examination

, trial counsel asked KW if there was “anything physical between [FT] and [Appellant].” KW testified
that , near the end of 2013, she walked into Appellant’s bedroom and witnessed Appellant and FT naked on Appellant’s bed with Appellant on top of FT having sex with her.

Appellant was in pretrial confinement with JG, a former military member who was then serving post

- trial con finement. JG described Appellant’s
statements about FT as follows:

Q. Did [Appellant] ever t alk about an individual named [FT] ?

A. Yes.

Q. What did he say about [FT]?

A

. I guess one night they were throwing a party and [FT] came over. They were drinking and she asked [Appellant] and the other people, the other gang members there , what it takes to get into the gang and they told her that they would have to sleep with her to get into the gang. I guess that [Appellant] said her and three, including him, went up to a bedroom and slept with her. I guess [Appellant] went first followed by [one gang member] and then some other guy who I don’t know the
name of.

Q

. That’s what [Appellant] told you?

A. Yes.United States v. Brown , No. ACM 38864

7 Q. Did [Appellant] say how old [FT] was?

A. At the time she was 14.

Q. Did [Appellant] say specifically what happened that night
with [FT] ?

A. Yes.

Q. Okay, what did he say?

A. He said that they had sex, that he went first. [One gang member] went second, and the other guy went third to get her into the gan g.

AB DE knew Appellant well before they spent time together in confinement. Apart from describing Appellant’s involvement with alcohol, drugs, threats, and GB, AB DE recounted Appellant explaining that KW “would bring girls over to have him sleep with,” and “in the military ‘of age’ is 16, and he doesn’t ask their age anyway.” AB DE also described comments Appellant made about FT in pretrial confinement. According to AB DE, the confinees were listing people they found attractive and FT’s name was listed. Appellant stated. “Oh, [FT] that’s the other girl that I got the abortion for.” AB DE responded that “She’s got to be like 17 or 18.” AB DE testified that Appellant then clarified “No, she was 14 at the time.” AB DE continued to recount Appellant’s discuss ion of FT that included the following general
statements or admissions: FT was drunk the first time Appellant had sex with her; “ the first time she was joining the gang so three of the gang members had sex with her; and the second time was when [Appellant] got her
pregnant. ” ( E mphasis added)

. The Air Force Office of Special Investigations (AFOSI) placed a recording device inside the confinement facility to capture Appellant’s conversa tions
with the other confinees. In one recording, the confinees joke about Appellant’s “Project X” party

— “[w]hat do you call a bunch of 15

- year

- old girls partying at a house?

. . . [Appellant’s ] Project X party. ” This le a d s to the following exchange, evidently referring to [FT] :
[Appellant : ] I wasn’t even sure if it was me that got her pregnant. She got f [   ] d by three dudes on the same f [ ** * ] in night.

[Confinee : ] You must feel responsible if you took her to the
abortion clinic.

[Confinee : ] Brown, you promote the degradation of our youth.

[Appellant : ] I’m doing them a favor.United States v. Brown , No. ACM 38864

8 [Confinee : ] The f [ ** ] k you are. How are you doing a 14

- year

old

- girl a favor by knocking her up, feeding her drugs, and then taking her to the Red River abortion clinic?

[Confinee : ] So, if a 14 year old gets off, if you just happen to be driving by

---- [Appellant : ] She said she was f [ **** * ] n 17.

An excerpt of another recording contained the following statement Appellant
made about FT:

When I f [ ***** ] d [FT] I really did not know her age. I really thought she was 17, because she f [ **** * ] d like she was old er

. . . She was getting gang f [ **** ] d. She f [   ] d me and then after [one gang member] f [ ** ** ] d her, and then [another] f [   ] d her, and then she was like [inaudible].”

[Another confine e asks Appellant ] And she’s 15?

[Appellant responds] Yep.

Appellan t was originally charged with raping FT, a child, for penetrating her vulva with his penis by using force against her, to wit: holding her down with his arms. After the Government rested its findings case, the Defense moved for finding of not guilty of thi s specification pursuant to Rule for
Court s

- Martial (R

. C

. M

. ) 917. Trial defense counsel maintained

, “ On this
there has been [no] evidence whatsoever that Captain Brown used force to wit: holding [FT] down with his arms at any point while they were having

s ex. ” The Government agreed with the Defense’ s assessment, with trial counsel stating:

there was no independent evidence of force because [FT] was not present or testified about that. We do believe there is a lesser included offense. So as to the greater of fense of force it is our position that we agree. To the lesser included offense of sexual assault of a child, there is evidence.

Appella nt was convicted of this lesser

- included offense.

Appellant was originally charged with another specification of raping FT,a child, which alleged Appellant penetrated FT’s vulva with his penis by administering to her a drug, intoxicant or other similar substance. After the Government rested its findings case, the Defense moved for a finding of not guilty of this offense pu rsuant to R

. C

. M

. 917. Again, the Government agreed and the following exchange occurred between the military judge and trial
counsel:United States v. Brown , No. ACM 38864

9 STC: And we agree with defense on [the rape by administering a drug, intoxicant, or other similar substance specification]

, that t here has not been independent evidence of that specification as far as [FT] . There was only one incident talked about bymultiple witnesses. The audio disagrees, but there is no independent evidence, so we agree

. MJ: And that was to all of the ent ire specification?

STC: To all of [this specification] because I don’t think there isindependent evidence of two incidents. There is just one incident.

Accordingly, the military judge granted the defense motion and found Appellant not guilty of raping F T by administering her a drug, intoxicant or other
similar substance.

Appellant argues that his conviction of sexua l l y assault ing FT is legally and factually insufficient because “[t]he only potentially credible evidence
support ing this specification came from testimony provided by JP, FT’s brother, and statement s purportedly made by [Appellant], admitting to sexual intercourse with FT.” Appellant also argues that his statements evidenced his “belief that FT was 17 years old, not 14 years old as testified t o by her brother.” Accordingly, Appellant maintains, “ T here was no credible evidence that [Appellant] knew or believed that FT was 14 years old at the time any alleged sexual acts may have taken place.” Appellant also claims

, “ T her e is
no evidence corrobor ating penetration.” Appellant further explains that JP’s “story

. . . does not make sense,” because “[i]t makes no sense that JP would not confront [Appellant] if this really happened

. . . [,] nor did he tell his parents or report it to the police.” Final ly, Appellant reasons that “[t]o the extentthe government relies on any testimony by KW regarding sexual acts between [Appellant] and FT, K W’s credibility has been sufficiently challenged

. . . . ”

While we acknowledge the military judge acquitted Appellan t of several charges to which KW was the primary

— if not the only

— witness, we are nonetheless mindful that the military judge “ may believe one part of a witness ’ testimony and disbelieve another.” United States v. Harris , 8 M.J. 52, 59 (C.M.A. 1979). Accord ingly, Appellant’s view that the military judge’s findings necessarily render KW’s entire testimony unbelievable is misplaced. Indeed, after considering the evidence and all reasonable inference in a light most favorable the prosecution, we find that the m ilitary judge

— a rational factfinder presumed to know the law

— could have found beyond a reasonable doubt that Appellant was not either subjectively or objectively mistaken about FT’s age and penetrated FT’s vulva with his penis. Additionally , afterUnited States v. Brown , No. ACM 38864

10 weighing the evidence presented at trial regarding Appellant’s sexual assault
of FT and making allowances for not having observed the witnesses who testified as to this offense, we are convinced beyond a reasonable doubt Appellant sexually assaulted a child, FT, b y penetrating FT ’s vulva with his penis.

3. Organizing a Violent Gang

The military judge convicted A ppellant of the following offense, in violation of Article 133, UCMJ:

[Appellant did] behave in a manner that disgraced and dishonored [Appellant] and serious ly compromised his standing as acommissioned officer by wrongfully and dishonorably organizing individuals into a violent gang, to the disgrace of the armed
forces.

Appellant, along with his gang member associates, dressed in their gang color, blue. Blue clothing and blue bandanas were found at Appellant’s residence along with a picture on Appellant’s wall that read “Crips for Life” next to his name “Leon.” Multiple, if not all, witnesses testified, in some respect, about Appellant’s gang

- related activitie s, as well as his leadership role within the “Crips” gang. Indeed, Appellant’s own statements confirmed his role within the gang and detailed his participation in its activities.

Accordingly, the evidence presented at trial caused Appellant on appeal to

“ concede[] that the evidence demonstrates multiple claims by friends andother inmates that [Appellant] was involved in ‘gang’ activity.” However, Appellant claims that the “challenge” for us “is determining whether [Appellant] was engaged in hyperbole and bravado while hanging out with under

- aged females and others, whether friends or fellow inmates, that he was trying to impress.” Appellant also asserts that “there was no credible evidence of any ‘violent’ activity as alleged.” In support of his argument, Appellant once again attacks the credibility of witnesses and maintains that his incriminating

statements were merely “hyperbole and fiction to impress other inmates.”

A fter considering the evidence of this offense and all reasonable inference s in a light most favorable to the prosecution , finding Appellant’s conviction of wrongfully and dishonorably organizing a violent gang legally sufficient is not a particularly difficult challenge. Appellant fancied himself the
leader of a cri minal enterprise and, at t imes, exaggerated his and his gang’s exploits while trying to “impress” his fellow inmates

, who were all enlisted
members. Appellant ’s statements, as described by witnesses, included his
boast that his gang called him “ OG, King Cold ” and that he directed a ll of the gang’s activities. Appellant also explained that in order to join the gang, males had to get beaten up by the gang members and females had to have sexual intercourse with three gang members. Appellant also admitted thatUnited States v. Brown , No. ACM 38864

11 his gang would “rob people , break into schools, [and] they broke [KW]’s window.” Appellant’s claims were corroborated by testimony describing threats and destruction of property. The military judge, as a reasonable factfinder,
could have found beyond a reasonable doubt that Appella nt organized a violent gang. Moreover, we are convinced beyond a reasonable doubt that Appellant organized this so

- called “Crips” gang, he was the unquestioned leader ofthe gang, his gang was violent, and that he is guilty of this Article 133 offense.

4. Pro stitution Ring

The military judge convicted Appellant of the following offense, in violation of Article 134 , UCMJ :
[Appellant did] wrongfully receive valuable consideration, to
wit: money, on account of arranging for K.W., P.W., W.K., and other unnamed per sons to engage in acts of sexual intercoursewith unnamed persons, which conduct, under the circumstances, was of a nature to bring discredit upon the armed forces.

Appellant described his gang’s main activities as “drugs, prostitution, [and] burglary,” a ccording to JG. With regard to the “prostitution ring,” JG testified, on direct examination from trial counsel:

Q. Did he talk about what his involvement would be with the drugs and prostitution? What would be his involvement with
that?

A. He would basica lly just run things behind the scenes. He would let his gang members actually deal hands

- on.
Q. Did he talk about whether he made the decisions?

A. Yes, he said that anything that goes on in his gang is run through him first.

. . . . Q. Did you hear any thing about prostitution?

A. Yes, they had a prostitution ring, and they had girls ranging in ages from 15 to 21. The younger girls would bring in

. . . They would charge more for the younger girls. It was kind of run with him and a girl called [WK] , who goes by Nona. She kind of headed that up. I am not sure how they recruited the girls or anything like that.

. . . .United States v. Brown , No. ACM 38864

12 Q. D id he talk about what the money exchange would be for the prostitution?

A. Like $300.00 to $800.00.

Q. Sorry?

A. $300.00 to $800.00. The younger girls would bring in more

money , so they would get charged more.

JG testified during cross

- examination that Appellant indicated that he received a 70 percent cut on all money the gang received from prostitution. Further, AB DE testified that Ap pellant stated that “they ran a prostitution ring, that people would come over to his house and there was girls named Nona and Kiki who were the prostitutes and possibly [KW]; and guys would pay him to sleep with them .”

In addition, KW testified about wit nessing people pay Appellant to have
sex with her and on another occasion TW . KH testified about WK’s role as a prostitute in Appellant’s gang and how Appellant provided WK money “like it was a job

. . . . ” TS testified that WK was a member of Appellant’s gang. TS also described on direct examination how Appellant’s , and the gang’s, second

in

- charge , CM, approached her about a “prostitution ring:”

Q. What was approached to you about this prostitution ring?

A. Just being the head person, like the head girl in the house.

Q. What would be your responsibilities for being the head girl
in the house?

A. Make sure that they brought the money back to him, and make sure that they were actually doing what they were told

to.
Q. Did you agree to that?

A. No, sir.

The prosecution also presented an audio recording of the following conversation between Appellant and another confinee , AB JS : 7

[ AB JS :] Were you running prostitution?

7 While discussing this conversation in his R eply Brief to the Government Answer to Court Order, dated 5 May 2017, Appellant states “Given the timing, it is unclear what Appellant is referencing; admittedly, it could indeed be that he had run his own prostitution ring.”United States v. Brown , No. ACM 38864

13 [Appellant:] What?

[ AB JS :] Were you dealing with prostitution?

[Appellant:] Oh yeah, I guess some girl’s angry dad knew and
f [** **] n went to OSI.

[ AB JS :] I heard

— I heard that’s pretty big up here.

[Appellant:] Yeah it is; also one of those, um, one of those grain silos, they were running a ring inside one of them and the cops
busted it.

[Banter by several individuals at once.]

[Appellant:] S [* * ] t, I had girls from 16 to 21.

[ AB JS :] Yeah?

[Appellant:] Yeah.

In challenging the legal and factually sufficiency of this conviction , “ [Appellant] does not dispute that multiple witnesses tes tified about his purported involvement in gang activity. The dispute is that there was no credible evidence of violence [sic] or that, as argued below, his alleged involvement was anything more than empty boasting. ” Appellant maintains there is “absolutely no credible evidence whatsoever of any prostitution activity or of any ‘ money exchang e ’

. . . .[T] here is no money, no arrests, and no name of the alleged ‘John’ in [the PW] incident. ” Most importantly to Appellant, PW did not testify. In addition, Appella nt again argues “KW’s testimony has already beendiscredited by the military judge’s findings with respect to her claims.” Appellant furthers his argument by citing his acquittal of conspiracy to engage in pandering and challenging the credibility of witne sses.
Once again, we view the evidence of this offense and all reasonable inference in a light most favorable to the prosecution. Once again, we find Appellant’s conviction legally sufficient. The military judge in this case could reasonably have found Ap pellant’s admissions to be corroborated by witness testimony. The military judge could have properly believed some portions of the witnesses’ testimony and not others. Accordingly, the military judge as factfinder could have reasonably found beyond a reaso nable doubt that Appellant was arranging for KW, PW, WK, and other s to have sex with people who paid him money and that such conduct was of a nature to bring discredit upon thearmed forces. Moreover, we a convinced beyond a reasonable doubt that Appellant is guilty of arranging a service

- discrediting “prostitution ring.”United States v. Brown , No. ACM 38864

14 5. Communicating Threats

The military judge convicted Appellant of threatening to injure ME by paying someone to assault ME and threatening to hurt, injure, or kill Capt
CM and SA JG.

ME wa s one of Appellant’s roommates. AL testified that she heard Appellant say “he had a hit out or he wanted to like get a hit out for [ME]” because Appellant thought ME had called law enforcement on him. Senior Airman (SrA) MH, who was Appellant’s friend, ove rheard Appellant “saying that he was looking to find or pay someone to beat [ME] up.” MB, who was confined with Appellant, recounted Appellant making statements about ME:

He didn’t say whether

— I can’t remember whether [ME] owed him money or somebody said that that he put out a bounty on [ME] because [Appellant] wanted to get it taken care of, but whatever the situation happened between those two, [Appellant] put a bounty out and the guy ended up getting in a fight or got beat up. But he didn’t know who did it, so it was never paid out, so it kind of just happened.

AB DE further testified

, “[Appellant] had offered me, [Appellant] came to my house and offered me ; [Appellant] said ‘I’ll give you $5,000 to anyone that hurts [ME] or puts him in the hospital.” A ppellant was also recorded in confinement telling AB DE

, “Him, her and [ME], remember that f [ *** *] r I offered $5,000.00

. . . . ”

While in pretrial confinement, Appellant also made a variety of threats against one of the prosecutors, Capt CM, and one of th e investigators, SA JG, that were communicated to, or overheard by fellow inmates, JG, MB, and AB
DE. Although JG characterized Appellant as “venting,” Appellant was recorded in pretrial confinement surmising

, “ I think communicating a threat is my biggest problem.”

On appeal and consistent with his realization in pretrial confinement, Appellant concludes

, “It must be conceded that the evidence demonstratesmultiple statements which support the government’s arguments that [Appellant] made threats about othe rs.” Nevertheless, Appellant maintains that somebody else threatened ME and that his threats against Capt CM and SA JG were made “in jest.”

Appellant’s convictions of threatening ME, Capt CM, and SA JG are legally sufficient. After viewing t he evidence of these convictions in a light most favorable to the prosecution

, we reach the conclusion that a rational factfinder could have found the essential elements of communicating a threat beyond
a reasonable doubt . We also find Appellant’s convictions factually sufficient,United States v. Brown , No. ACM 38864

15 as we are convinced beyond a reasonable doubt that Appellant communicated threats against ME, Capt CM, and SA JG.

6. Unlawfully Entering ML’s Home

The military judge convicted Appellant of unlawfully entering ML’s dwelling in December 2013.

Appe llant maintained a relationship with AL

, during which time he gave her his social security card, blank checks, birth certificate, and car keys. Appellant also bought AL a ring, “pipes,” and “bongs.” ML is AL’s mother. AL lived with ML in Berthold, North Da kota. Appellant would pick AL up from her home. AL eventually ended the relationship causing Appellant to request AL return his “stuff.” AL blocked Appellant’s phone number on her phone, which prevented her from receiving text messages directly from Appell ant’s phone number.

ML and AL testified about AL’s relationship with Appellant, ML returning some of Appellant’s items to him, and threatening messages AL received
in October 2013 after the relationship ended. AL received these text messages on her mobile phone through “TextNow.com”:

Give me my stuff back please

I’m trying to be nice

If you Dont [sic] you have no idea.......test me

Nobody will ever give u [sh*t] until I get my stuff back I promise you... I will use every resource I have ever

I HATE you

OK its war b [ * **] h

. . . . Are you gonna bring my things please?

. . . . well when u do plz get me all my stuff back please including the ring thanks

(1/3) If you Dont [sic] give me my things including the ring by TOMORROW I promise some girls will go to you and get it and they will kick your

(2/3) ass.. its been arranged already and you know I have the influence to make it happen...good luck using another guy for weed again

(3/3) half the town knows how u f [ *** ] ed me overUnited States v. Brown , No. ACM 38864

16 During trial, particularly when the prosec ution laid the evidentiary foundation for admission of the text messages, inconsistencies arose as to when ML returned items to Appellant. ML testified that she personally returned items to Appellant before AL received the aforementioned text messages. AL initially testified on direct examination as follows:

Q. [AL] , did your mom ever give anything back to [Appellant]

, that’s the next step you mentioned?

A. Yeah, she gave it all back.

Q. Do you remember when that was?

A. I am not sure.

Q. Was it before or after these text messages, or during these text messages?

A. It was after I got them, because I showed her them.

Q. So you showed your mom the text messages?

A. Yeah.

Q. Is that what prompted the stuff being returned?

A. Yeah.

The D efense identifi ed this conflict and objected , but the military judge admitted the exhibit containing the text messages.

AL testified on cross

- examination, in pertinent part, as follows:

Q. All right, now, if I understand, after that you at some point made arrangements with your mom to return property to him,
correct?

A. Yeah.

Q. Why wasn’t that done, if you knew you were going to be breaking up with [Appellant] why was that not done at the time you broke up with him?

A. Honestly, I forgot I even had it. It was a bag downstairs, like I didn’t really like look at it every day. It just kind of didn’t cross my mind.

Q. How did you end up coming across it, or how did your mom
come across it?

A. I guess, from what I remember, the text of him saying “I want my stuff back.”United States v. Brown , No. ACM 38864

17 Q. So after you get the text “I want my stuff back” then you were thinking about it and you went to find the stuff, correct?

A. Yeah.

Q. And the same day you get the te [x] t that “I want my stuff back” did you return the stuff to him?

A. I don’t know if it was that exact date, it might have been like the day after.

Q. All right, did you ever indicate to him that you were not going to give his stuff back?

A. No.

Q. As far as when it was turned over to him, were you getting your threats at that particul ar point, these threatening text messages; or was that after the fact?

A. I think the threats came after.

Q. Right, so you basically were asked after this break up by [Appellant] , “Can I get my stuff back” and what you did is the day after your mom took his stuff back to him, correct?

A. Yeah.

Q. Did you go with your mom to do that?

A. What?

Q. Did you go with your mom to do that?

A. No.

Q. So, when your mom came back did she tell you that she had dropped the stuff off to [Appellant] ?

A. Yeah.

Q. So at this particular point there had not been any threats yet, correct?

A. Not yet.

The military judge later clarified AL’s testimony by referencing AL to the text

messages:
Q. You just testified this morning that you thought it was maybe the day after you received the text about him wanting his stuff back that your mom returned it.United States v. Brown , No. ACM 38864

18 A. Yeah, but I think we were like out of town. I think we were in Bismarck and I don’t know exactly when she brought it back. I just know it was like not that long after thes e.
Q. You mentioned; did you collect the things for your mom to give them back to him?

A. Yeah.

Q. Like you got the bag?

A. Yeah, they were just already in a bag.

Q. What was in the bag?

A. Social Security card, birth certificate, and his car keys.

Q. What about the ring? Did you return the ring at that time?

A. No. I think we like couldn’t find it or something. I am not sure, but it wasn’t given back at that time.

Q. Were you aware of anything else that you had that he might have wanted from you?

A. Um, I guess the pipes and the bongs he bought me.

Q. Were you aware of anyone else wanting something back from you around this time period?

A. No.

ML testified about “ an incident where [her] house was broken into ” sometime in mid

- December 2013. ML de scribed going home from work around lunchtime and “notic[ing] immediately that the door that we have to the basement was open which is normally closed. ” ML explained: “ So as I walked farther into the entryway I could see upstairs and A [L] ’s bedroom door wa s open, which is never open. And then another bedroom door was open that is up there, and then I thought ‘somebody has been in the house.’”

ML confirmed that none of her family members had been in the house. Afterwards, ML went upstairs and looked around t he house. ML observed that “[n]othing looked like it had been touched,” so she went into the basement. ML felt a draft on her way to the basement and noticed the curtains on the basement window were “blowing.” As she got closer

, she observed glass on the
f loor and that the window had been broken. ML described the window as large with a plastic covering. ML further described the plastic being “ripped away” when “ they had kicked the window .” ML explained it was “unusual” for AL’s bedroom door be open because “[AL] always keeps her bedroom door shut. In fact we keep a lot of the doors shut because we have cats, and we just like to keep them out of there because of her allergies and stuff. So, but herUnited States v. Brown , No. ACM 38864

19 bedroom door i s always shut anyway, usually.” ML also confirm ed that no property was missing. On cross

- examination, ML testified about the size of the hole in the window, claiming “ An adult male, I guess I just thought about [Appellant] would fit through it. I know we had speculated that maybe he had somebody with [ him ] or something like that. ” ML did not see Appellant at or near her home that day.

MB testified that he and Appellant discussed Appellant’s pending chargeswhile they were confined together. On direct examination, MB relevantly recounted conversations co ncerning AL as follows:

Q. Let’s talk about [AL] . What do you remember him saying about [AL] ?

A. I guess it was his ex

- girlfriend, and I guess they had a break up and he was missing some documents and some things from his place, and pretty much she was t he reason why he was in pretrial.

. . . . Q. I want to bring your attention back to [AL] . Did the accused ever mention anything about her home, about breaking into
her home?

A. He personally said he had n othing to do with it but one of
his friends o r the number 2 in control, [C] , and some guys went over there looking for his stuff. It was never mentioned if any harm was done to her or if she was there, or anything, or if they found anything.

Q. When you said number 2 in control or his friend, what did

yo u mean?

A. I guess with the whole he’s a Crip, he’s number 2 in his
chain of command.

Q. What did you understand a Crip to mean?

A. A gang member.

The military judge also considered an audio

- recording of Appellant in pretrial confinement making the fol lowing statement: “Oh, Amity helped rob [AL’s] house; she drove all the way to Berthold to do it.” KW testified that a “girl”
with the first name “ A mity” lived with Appellant.

Appellant argues that “the Government failed to prove that anyone entered the dw elling house of ML,” and “[m]oreover, even if the evidence

— viewed in a light most favorable to the Government

— demonstrates thatUnited States v. Brown , No. ACM 38864

20someone did enter ML’s home, there is no proof that the person was Appellant or someone he instructed to carry out the crime.”

It is apparent from the rec ord, Appellant was convicted of this offense as a principal. See Article 77, UCMJ, 10 U.S.C. § 877; see also R.C.M. 307, Discussion (H)(i) (“All principals are charged as if each was the perpetrator

. ” ). A
reasonable factfinder co uld find likewise

. The evidence and all reasonable inferences

— when viewed and drawn in a light most favorable to the P rosecution

— establish Appellant’s motivation for unlawfully entering ML’s home, his intent to do so, and his ability and willingness to com mand his gang
members to do so. The evidence also suggests that someone broke ML’s
basement window causing a hole large enough for a person to enter the home and that Appellant admitted a known associate of his, Amity, “ helped rob [AL’s] hous e [and] drove all the way to Berthold to do it.” Accordingly, Appellant’s conviction of unlawful entry is legally sufficient

.
However , we have taken a “fresh, impartial look” at the evidence of this
offense and are not convinced beyond a reasonable doubt that Appellant is guilty of the offense of unlawful entry. While the evidence establishes the legal sufficiency of Appellant’s conviction, it also raises several possibilit ies inconsistent with Appellant ’s guilt: that someone other than Appellant’s gang
members entered the house on the occasion ML described; that if members of Appellant’s gang did go, it was without Appellant’s involvement; or that no
entry actually occurred. Therefore, we set aside Appellant’s conviction of unlawful entry and dismiss with prejudice Spec ification 4 of Charge VII.

7. Distribution of “Mushrooms” on Divers Occasions 8

The military judge convicted Appellant of distributing some amount of psilocybin, “mushrooms,” on divers occasions.

KW lived with Appellant for a period of time. She testified, a mong other things, about receiving mushrooms from Appellant at least five times. She described eating small mushrooms that made her feel “crazy, hallucinations.”

AL testified about seeing Appellant provide mushrooms to GB . AL described Appellant declaring

, “Hey, I have some mushrooms,” possessing “three little chocolate mushrooms,” splitting one with GB, and eating a piece with GB. AL recounted Appellant’s reaction to the drug, “ He was just saying
like that me and [GB] were like witches and that he was sca red of us

. . . . ” Appellant text messaged AL about this incident, stating

, “Outside I thought I

8 Raised pursuant to Grostefo n, 12 M.J. 431.United States v. Brown , No. ACM 38864

21 was in a forest and you two witches were trying to eat me.” On cross

examination, AL further discussed the mushrooms:

Q. Okay. Now let’s talk about those mushr ooms that you are saying were ingested. Did you ingest any of those?

A. Once, yeah.

Q. Okay and what did they look like?

A. It was a small circular chocolate, with like, you could see like pieces of shrooms, like in it.

Q. Okay and shrooms meaning mush rooms?

A. Yeah.

Q. Now had you been drinking also?

A. No.

Q. Is this the time you say you saw Captain Brown use mushrooms?

A. No.

Q. A different time?

A. Yeah.

Q. When you say you saw him use mushrooms, it was just a totally different occasion? What did they look like if you saw
them?

A. Same thing.

During her testimony, GB recounted an incident almost identical to that described by AL . GB described Appellant providing her a mushroom “wrapped in chocolate” when she visited Appellant with AL. GB also described Appellant looking at her and saying “ he felt like he was in a forest or

s omething and there was a witch.” GB admitted to eating one of the mushrooms Appellant provided, not feeling its effects

, and leaving Appellant’s
house for approximately an hour . GB ’s testimony on direct examination continued, in pertinent part:

Q. What happened after an hour?

A. I had left his house, went over to another one of my friend’s house and then I went back to his house and I eventually ate
another half of one, and then I had gone to Walmart with [AL]

, and um, the way it hits you is like say if you go to the bathroom for example, which was what I did, it hit me like when I was in
the bathroom stall.United States v. Brown , No. ACM 38864

22 Q. What kind of effects did you feel from it?

A. I felt really ki nd of like woozy and happy and not like

. . . Ikind of felt like I was floating in a way, like everything was really vibrant and people were staring at me. ( E mphasis added).

Appellant discussed mushrooms and his distribution to GB in a conversation with ot her confinees that was recorded by in ve stigators:

[Appellant:] “Luckily there was neve r any pictures taken of the
f [ *** ] ing huge bag of shrooms that I h ad. I had shrooms with huge f [ *** ] ing mushrooms caps and s [* * ] t

. ”

. . . . [Appellant:] “No. I got [GB] f [ *** ] ed up on shrooms at Walmart once. She ended up getting arrested like a couple of hours later.
She was f [ *** ] ed up. That was her first time taking shrooms.

Appellant asserts that his conviction for distributing mushrooms “on divers occasions” is legal ly and factually insufficient. He acknowledges that “[v]arious sources indicate that Appellant provided mushrooms to GB on one occasion.” However, Appellant believes “the military judge convicted [him]
base d on either a misunderstanding regarding the sole distribution or her belief in KW’s testimony.” Accordingly, Appellant renews his unavailing claim that “[a]s a whole, KW’s testimony is too riddled with inconsistencies to prove any offense beyond a reasonable doubt. A reasonable factfinder would disregard her testimony in its entirety

. . . . ”

Even if a reasonable factfinder disregarded KW’s testimony about Appellant’s distribution of mushrooms to her, a reasonable factfinder could have
nonetheless convic ted Appellant of distribution of mushrooms on divers occasions. Appellant concedes one distribution to GB . When viewing the evidence and all reasonable inferences in a light most favorable to the prosecution, a reasonable factfinder could have also found beyond a reasonable doubt that Appellant distributed mushrooms to AL

, and when GB returned to his house after leaving for approximately on hour and ate another half of a mushroom

, Appellant made a second, separate distribution to GB . Unfortunately for Appellant, the military judge, as a reasonable factfinder may have properly believed KW’s testimony regarding Appellant’s mushroom distribution despite her findings on other charged misconduct. Accordingly, we answer the question of whether a reasonable factfinder hearing the evidence of Appellant’s
mushroom dis tribution one way could have found Appellant guilty of distributing mushrooms on divers occasions in the affirmative; Appellant’s conviction is legally sufficient. Moreover, l ike the military judge, we are convinced beyond a reasonable doubt that Appellant distributed mus hrooms on two or more occasions; Appellant’s conviction is factually sufficient.United States v. Brown , No. ACM 38864

23 B. Discovery 9

Appellant asserts a discovery violation regarding one of the witnesses, AB DE, who testified against him. AB DE joined the Air Force in 2010. Appro ximately two years later in 2012, he met Appellant in Minot, N orth Dakota . AB DE and Appellant had a mutual friend and AB DE would frequently “hang out” with Appellant.

In May 2012, AB DE was detained at a local Walmart for shoplifting. The responding off icer asked AB DE about his age. AB DE replied that he was 18 years old. After the officer continued his efforts to confirm AB DE’s identity and age, AB DE informed the officer that he was actually 20 years old and
had provided the wrong birth date earlier

. AB DE was arrested for shoplifting and providing false information. AB DE was ordered to appear in local court a few days later for the charge of false information; however, the charge was dismissed by the county’s prosecuting attorney because the “AF is taking [jurisdiction].”

In 2013

, AB DE was under investigation by military authorities for marijuana distribution and steroid use. Appellant was also under investigation at the time. AB DE and Appellant discussed their investigations. AB DE was ultimately convicted at a court

- martial for marijuana distribution and steroid use. During the investigation into his offenses, AB DE lied under oath to investigators. His sentence included 32 months of confinement and a bad

conduct discharge. AB DE and Appellant we re reunited in the Minot AFB confinement facility, where AB DE starting serving his post

- trial confinement on 13 February 2014 and Appellant was ordered into pretrial confinement. While in confinement, the two talked about their cases daily.

The Governmen t requested and obtained records of AB DE’s 2012 arrestfor shoplifting and providing false information prior to Appellant’s trial defense counsel’s specific requests for such information. However, the Government failed to provide this previously

- obtained material to the Defense in response to their request

.Appellant argues that the trial counsel’s failure to disclose this information about AB DE’s arrest for false information resulted in an unfair trial “because it would have significantly strengthened t he defense’s argument that [AB] DE lied to advance his own interests; DE not only lied to Air ForceAuthorities on one occasion, he lied to civilian law enforcement on [a] separate occasion and thus could be said to routinely lie.”

9 Raised pursuant to Grostefon, 12 M.J. 431.United States v. Brown , No. ACM 38864

24 Trial counsel’s failure to disclose evidence that is favorable to the defense on the issue of guilt or sentencing violates an accused’s right to due process. Brady v. Maryland , 373 U.S. 83, 87 (1963). “A military accused also has the right to obtain favorable evidence under Arti cle 46, UCMJ

. . . as implemented by [R.C.M

. ] 701

– 703.” United States v. Coleman , 72 M.J. 184, 186

– 87(C.A.A.F. 2013). Accordingly, Article 46 and these implementing rules provide a military accused statutory discovery rights that are greater than those
af

forded by the Constitution. See id . at 187; United States v. Roberts , 59 M.J. 323, 327 (C.A.A.F. 2004).

Consequently, there are two categories of disclosure error: (1) cases in which the defense made no discovery request or merely a general request for
di scovery , and (2) cases in which the defense specifically requested the information. Coleman , 72 M.J. at 187 ( citing Roberts , 59 M.J. at 326

– 27 ) . The
harmless error standard of review

— “whether there is a reasonable probability that, had the evidence been di sclosed, the result of the proceeding would
have been different”

— applies to the first category

. Id

. ( quoting Smith v. Cain

, 565 U.S. 73, 75 (2012)) . The heightened constitutional harmless beyond a reasonable doubt standard applies to the second category. I d . “Failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have a ffected the outcome
of the trial.” Id

. In reviewing discovery matters, we conduct the following two

- step analysis: “first, we determine whether the information or evidence at issue was subject to disclosure or discovery; second, if there was nondisclosure of such information, we test the effect of that nondisclosure on [Appellant’s] trial.” Id

. ( quoting Robe rts , 59 M.J. at 325 ).

Using this analytical framework, we first quickly conclude

— and the Government concedes

— that the material pertaining to AB DE’s 2012 arrest for shoplifting and false information was not only subject to disclosure by the Government, but that the Government was indeed obligated to provide such
information to the Defense.

In testing the effect of this nondisclosure on Appellant’s trial, we apply the harmless beyond a reasonable doubt standard. AB DE provided testimony regarding several of the charged offenses; however, most of his testimony was corroborated by other evidence, to include Appellant’s statements. On direct examination, AB DE described some of his own misconduct, includ ing buying drugs from Appellant’s roommate, and he explain ed how he was convicted by

a court

- martial for distribution of marijuana and steroid use and consequently sentenced to confinement. AB DE’s cross

- examination by Appellant’s civilian defense counsel began as follows:United States v. Brown , No. ACM 38864

25 Q. [AB DE] , what were you actually convi cted of in your court

martial?

A. Distribution of marijuana and use of steroids.

Q. What were you sentenced to?

A. Thirty

- two months.

Q. How much time do you have left at this point?

A. A little over a year.

Q. When was your action taken, do you know ?

A. When was I sentenced?

Q. No, when did the general sign off on your conviction?

A. I don’t know.

Q. You don’t know that?

A. No, sir.

Q. And you were given what type of a discharge?

A. A BCD.

Q. A BCD?

A. Yes, sir.

The cross

- examination also no tably included the following:

Q. Now, when were there discussions between you and [ET] 10
about the fact that information from [Appellant] could be helpful to people in confinement? When was that discussion?

A. What do you mean?

Q. There was discussion bet ween [ET] and other people to the
effect that [Appellant] was basically a Captain facing charges, and information about him could help people that were in a
post

- trial or pretrial confinement situation, was there not?

A. Yes.

. . . .

10 ET was another A irman confined with Appellant during Appellant’s pretrial confinement at Minot AFB

.United States v. Brown , No. ACM 38864

26 Q. What was that con versation about?

A. Just the fact that it had to do with helping us out for doing the right thing.

Q. And helping us out, meaning the other people, other than the accused, correct?

A. Right.

Q. By getting all their sentences reduced, correct?

A. Corre ct.

. . . . Q. Once the knowledge came out amongst you and the otherpeople that the monitoring devices were there were there discussions about trying to get the accused to talk about what he
was in there for?

A. Not that I know of.

Q. You did not hav e that conversation with [ET] ?

A. Not that I know of, not that I can remember.

Q. Not that you can remember; did you hear the other people that were in confinement with you talking about that?

A. The only thing they talked about was the fact they were goi ng to try to get less time for what he had told them.

AB DE’s cross

- examination concluded as follows:

Q. When you came into the Air Force, as you have indicated, you had never used drugs before, correct?

A. Yes, sir.

. . . . Q. And then you get involved with drugs, using and possessing, and distributing drugs, correct?

A. Yes, sir.

Q. Extensively involved, correct?

A. Not extensively.

Q. Well involved enough that you went to a court

- martial over it, correct?

A. Yes, sir.United States v. Brown , No. ACM 38864

27 Q. What was the amount of m arijuana you had?

A. Thirteen point eight ounces.

Q. What is the street value of that?

A. Five thousand dollars.

Q. Five thousand dollars?

A. Somewhere around there.

Q. Okay, so you were somewhat involved in marijuana?

A. Yes, sir.

Q. Correct; and then when you were contacted by OSI, you were questioned and you flat

- out lied to OSI, correct?

A. Correct.

Q. And you knew you were under oath, correct?

A. Yes, sir.

Q. And the reason you lied was because you thought it was to your advantage to do so, correct?

A. Yes, sir.

Q. And you lied with the specific intention to deceive the people that you were talking to, correct?

A. Yes, sir.

CDC: Nothing further. Thank you.

There was no redirect examination and the prosecution rested immediately after AB DE was excused.

At trial, AB DE’s credibility was directly challenged and his motives tofabricate revealed. AB DE was shown to be a convicted drug distributor, convicted drug user, and admitted self

- serving liar. AB DE also acknowledged the potential for receiving some form of “help” in exchange for providing incriminating information against Appellant. These matters impacting AB DE’s credibility would have been self

- evident to the military judge. Accordingly, we have no doubt that confronting AB DE with his lie to police about being 18 rather than 20 years old immediately after his arrest for shoplifting at Walmart over two years prior to Appellant’s trial would not have affected the outcome of Appellant’s case. While the conduct of the prosecution in not disclosing the 2012 arrest material “was, at a minimum, negligent, and certainly
violated Brady , Article 46, and R.C.M. 701

– 70 3 , the Government has estab-United States v. Brown , No. ACM 38864

28lished that under the circumstances of this case its failure was harmless beyond a reasonable doubt.” Coleman , 7 2 M.J. at 189.

C. Ineffective Assistance of Counsel 11

In general, Appellant alleges his civilian and military trial defense counsel (1) “failed to adequately challenge the testimony of key witnesses despite possessing evidence that these witnesses p reviously made contradictory

statements

— some of which were sworn” ; (2) “failed to object to material evidence offered by the Government, or move to include exculpatory evidence” ; and (3) “failed to properly investigate the case and compile favorable eviden cethat was easily accessible through [the Freedom of Information Act].” Appellant consequently concludes “[d]efense counsel’s performance was deficient and significantly prejudiced Appellant.” 12

In support of his complaints against his trial defense couns el, Appellant
submitted several declarations and documents for our consideration. Accordingly, we ordered and received declarations from his trial defense counsel in

response

.The Sixth Amendment guarantees Appellant the right to effective assistance of c ounsel. United States v. Gilley , 56 M.J. 113, 124 (C.A.A.F. 2001). In assessing the effectiveness of counsel we apply the standard set forth in Strickland v. Washington , 466 U.S. 668, 687 (1984), and begin with the presumption of competence announced in Un ited States v. Cronic , 466 U.S. 648, 658 (1984). See Gilley , 56 M.J. at 124 (citing United States v. Grigoruk , 52 M.J. 312, 315 (C.A.A.F. 2000)).

Accordingly, as a general matter we “ will not second

- guess the strategic or
tactical decisions made at trial b y defense counsel. ” United States v. Mazza

, 67 M.J. 470, 475 (C.A.A.F. 2009). When Appellant “ attacks the trial strategy or tactics of the defense counsel, [he] must show specific defects in counsel ’ s performance that were ‘ unreasonable under prevailing pr ofessional norms. ’”
Id . (quoting United States v. Perez , 64 M.J. 239, 243 (C.A.A.F. 2006)). We review allegations of ineffective assistance of counsel de novo. United States v.
Gooch , 69 M.J. 353, 362 (C.A.A.F. 2011) (citing Mazza, 67 M.J. at 474).

11 Raised pursuant to Grostefon, 12 M.J. 431.

12 In addition to the specific claims addressed i n this opinion, we considered all other ineffective assistance of counsel issues raised by Appellant in his declarations and
briefs pursuant to Grostefon , 12 M.J. 431. We reject those remaining issues as they require no additional analysis nor warrant reli ef. See United States v. Matias , 25 M.J. 356, 363 (C.M.A. 1987).United States v. Brown , No. ACM 38864

29 We util ize the following three

- part test to determine whether the presumption of competence has been overcome:

1. Are appellant ’ s allegations true; if so, “ is there a reasonable explanation for counsel's actions ” ?

2. If the allegations are true, did defense couns el ’ s level of advocacy “ fall measurably below the performance . . . [ordinarily expected] of fallible lawyers ” ?

3. If defense counsel was ineffective, is there “ a reasonable probability that, absent the errors, ” there would have been a
different result?

Go och , 69 M.J. at 362 (citing United States v. Polk , 32 M.J. 150, 153 (C.M.A. 1991)).

We review allegations of ineffective assistance of counsel de novo. Id. (citing Mazza, 67 M.J. at 474).

1. Failure to Adequately Confront Witnesses

Appellant claims his defens e counsel “failed to challenge numerous witnesses on previous inconsistencies or motive to lie.” Appellant then compiles
a “list of these inconsistencies or motives to lie that were not addressed b y defense counsel during cross

- examination or elsewhere.” T his list includes Appellant’s complaints with the testimony of KW, AL, JG, AB DE, and SA
NP

. Appellant argues that “KW w as the Government’s first and arguably most important witness.” Appellant maintains that his civilian defense counsel
failed to confron t KW with “at least three contradictory, sworn statement s to investigators.” A ccordingly, A ppellant identifies the following portions of KW’s testimony: (1) she “woke up to [Appellant] ejaculating on [her]

. . . stomach, and there was some inside [her] ” ; (2) she denied having previously experienced “black

- outs” ; and (3) she “only saw two exchanges of money between the Appellant and other individuals regarding Appellant’s arranging for prostitution.” Appellant contends that his civilian defense counsel shou ld have confronted KW’s testimony on these three points with the following statements KW previously made to investigators: (1) “I don’t remember all that night tell [sic] I woke up to him on top of me cumming inside of me” ; (2) “I had a lot of mornings whe re I would wake up half naked and not know what happened with a random guy next to me

. . . . I started having my friends stay the night with me to watch me and the y would tell me I disappeared for a while” ; and (3) “I had a lot of mornings where I would w ake up half naked and not know what happened with a random guy next to me . I watched most of the guys give [Appellant] money.” Appellant also argues thatUnited States v. Brown , No. ACM 38864

30 his defense counsel should have elicited testimony from KW regarding KW’s statement that “Appellant go t FT pregnant and that [FT] went to Fargo to get an abortion” because the Fargo clinic

— the only abortion clinic in North
Dakota

— “indicated that they did not have any records indicating FT visited
the clinic.”

While acknowledging that “some of the allegatio ns made by KW did not
result in a guilty verdict for certain charged offenses,” Appellant maintains KW’s “overall credibility was crucial to the Government’s case.” According to Appellant, “ [t] he significance of KW’s testimony on the Government’s case is

e videnced in the closing argument of trial counsel, who referenced KW approximately 40 times.” Therefore, Appellant concludes, “had [trial defense counsel] adequately cross

- examined KW, the military judge would have given her testimony little weight.”

In r esponse, Appellant’s trial defense counsel explained that they made
the tactical decision not to cross

- examine KW with the specific statements identified by Appellant because they wanted to (1) show Appellant did not penetrate KW’s vulva ; (2) “demonstrate KW was not intoxicated or drugged during the sexual encounter ” ; and (3) not introduce evidence of “other times [KW] saw [Appellant] receive money for having sex with her.” Cross

examining KW with the statements offered by Appellant would have, in trial
def ense counsel’s estimation , defeated those purposes . With respect to KW’s statement about FT’s abortion, the trial defense counsel assert that KW “did not have any personal knowledge about the purported abortion but had heard
it from someone else.”

Appella nt next directs his allegations towards the testimony of AL, duringwhich she testified to being in a “relationship” with Appellant. Appellant believes his trial defense counsel should have confronted AL with a previous statement in which she “denied any r omantic or sexual involvement with Appellant” and evidence suggesting “[Appellant] was dating [AL].”

Appellant’s trial defense counsel explained that evidence suggesting Appellant, a commissioned officer who was then 27 years old, was in a romantic
relatio nship with the 16

– 17

- year

- old AL, and seemingly pressuring AL into sexual encounters with him in exchange for marijuana

, would have been “quite devastating” to Appellant’s case.

Appellant contends that his trial defense counsel should have cross

examined JG and AB DE about their clemency requests. Consequently, Appellant maintains “defense counsel never addressed the fact that both JG and AB DE had a motive to lie about Appellant: they were seeking clemency from their respective court

- martial sentences.”United States v. Brown , No. ACM 38864

31 Appellant’s trial defense counsel responded to this assertion as well. Appellant’s trial defense counsel explained that JG provided favorable evidence to the Defense and there was no need to establish any motive for JG to lie. Defense counsel further expl ained that establishing a motive to lie for AB DE would have opened the door for the admission of a prior consistent statement
that would have more damning that AB DE’s testimony. Consequently, trial
defense counsel decided not to cross

- examine these witne sses about their
post

- trial clemency requests.

Appellant finally claims that trial defense counsel “actually hurt [his] case during his cross

- examination o f SA NP by introducing ET’s work as a
confidential source after the investigation against Appellant.” ( E mphasis in original). Appellant describes evidence from his Article 32, UCMJ, hearing
that indicates ET “ worked as a registered OSI source

. . . just a short time prior to gatheri n g information on Appellant.” Without further explanation, Appellant asser ts “ this was a significant fact that the military judge should have considered, as it calls into question the motive of both ET and the investigators, and would likely have led to an analysis of whether the Government deliberately elicited statements from Appellant after his Sixth Amendmentright to counsel had attached.” Appellant then concludes, again without further analysis , that there “is a reasonable probability that this analysis would have limited at least portions of the audio recording from being admitted into
evidence.”

ET did not testify , yet Appellant’s trial defense counsel was able to challenge ET’s motives and credibility through SA NP’s cross

- examination. Furthermore, Appellant’s trial defense counsel declared “the confinement recordings de monstrate that there was no good faith argument [Appellant] was being interrogated about charged offenses by an informant after invoking his rights to counsel.”

A lthough Appellant identified what he believes to be specific defects in his
counsel’s confron tation of certain witnesses, he failed to show that his counsel’s decisions were unreasonable. Accordingly , we find no reason to second

guess the sound decisions Appellant’s counsel made with regard to cross

examining the witnesses identified by Appellant. The trial defense counsel’s
well

- reasoned and extensive cross

- examination of KW resulted in Appellant being acquitted of several serious offenses

— to include the sexual offenses against KW . Moreover, trial defense counsels ’ decision not to confront AL
abou t the nature of Appellant’s “relationship” with AL was reasonably intended to prevent more evidence about Appellant’s sordid relationships with teenage girls from being offered against him. Appellant’s counsel made similarly sound decisions in not cross

- ex amining JG and AB DE about their clemency requests; trial defense counsel reasonably sought to avoid impeaching aUnited States v. Brown , No. ACM 38864

32favorable witness and to prevent prior consistent statements from being offered against Appellant. Likewise, Appellant’s counsel reasonably de termined that the timing of ET’s service as an informant did not impact the credibility of witnesses nor did it give it rise to a good faith claim that Appellant’s Sixth Amendment right to counsel had been violated in any way. Such decisions
and conclusion s, under the facts of this case, can hardly be found to fall

m easurably below the performance ordinarily expected of fallible lawyers

. Even if trial defense counsel’s decisions can be considered ineffective, we find no reasonable probability that

, had thes e witnesses been confronted as proposed by Appellant, there would have been a different, more favorable result for Appellant at trial. Appellant failed to establish his counsel were ineffective in confronting KW, AL, JG, AB DE, and SA NP.

2. Failure to Object or Offer Exculpatory Evidence

Appellant also alleges that his counsel “were deficient in their handling of key exhibit s .” To support this allegation, Appellant argues that his counsel’s “loss of [a disk containing hundreds of pictures and texts between AL and Appellant] and subsequent failure to require the text message s be admitted in their entirety prevented the military judge from accurately assessing AL’s credibility.”

In response to this allegation, Appellant’s counsel both maintained that
the disk w as thoroughly reviewed and the evidence never “lost” as a copy
could be obtained from the Government. Moreover, Appellant’s counselagreed that offering the text messages in their entirety would, apart from potentially showing Appellant and AL were in more than a “relationship” as AL testified, and would “not paint [Appellant] in a positive light.” According to Appellant’s counsel, these text messages would once again show Appellant, a

27

- year

- old commissioned officer, in relationship with a 16

– 17

- year

- old girl

— a relationship in which he discussed giving her drugs seemingly in exchange
for romantic encounters. The trial defense counsel explained that they “had the disc when AL testified but made a strategic decision not to use it because
the texts were so ha rmful to [Appellant].”

Appellant further alleges that “[d]efense counsel similarly failed to require the audio recordings from the confinement facility be admitted in their entirety.” Appellant surmises,

H ad they done so, the military judge would have be en able tosee how much the other inmates prodded Appellant for information. She also would have been able to compare the Government’s cherry

- picked statements with the full scope of Appellant’s conversations over a two

- week period. Additionally,
the milit ary judge would have heard Appellant deny having sexUnited States v. Brown , No. ACM 38864

33 with GB, deny knowing FT’s age, and been able to generally gauge how much exaggeration and bravado inmates engaged in
while confined.

Appellant’s counsel describe the confinement recordings as “[o]ne of the most significant problems [they] faced in the case.” Appellant explained to hiscounsel that he engaged in these discussions because “he was trying to impress the junior enlisted personnel he was confined with.” Both trial defense
counsel concluded th e recordings were extremely prejudicial to Appellant

— for example, Appellant initiated conversations about his misconduct; detailed his own criminal misconduct; “utilized gang and racial terminology” ; used inappropriate language with junior enli sted personn el; “ name

- called ” his leadership and the legal office; referred to witnesses as “b [*** * ] es” ; stated his first sergeant was a “d [ * **] head who didn’t do s [* * ] t for him” ; talked “about wanting to become an attorney so he could represent organized c rime an [d] make a lot of money” ; and “discussed prior allegations for which he received non

judicial punishment for which the Government never found all of the evidence against him. ” According to Appellant’s counsel, the aforementioned examples are “just a sample of the hours of similar conversations.” Consequently, trial defense counsel merely wanted to provide context to the limited conversations offered by the Government. Trial d efense counsel explained that
the y wanted to show that Appellant’s statements in the Go vernment’s exhibit “were just bravado and not true admissions of guilt.” Trial d efense counsel further explained their decision not to play any more of the confinement recordings “ as a strategic decision based on what [they] believe was in [Appellant’s] be st interest.”

Finally, Appellant claims that his trial defense counsel were deficient in requesting the military judge take judicial notice of the distance between Fargo, N orth Dakota

, and Minot, N orth Dakota

, rather than Fargo and Berthold, N orth Dakota

, which Appellant states is 24 miles farther west . Appellant concludes that his counsel “should have recognized the difference

. . . and understood that driving farther from Fargo would provide a better alibi” to the unlawful entry offense.

In response to t his claim, Appellant’s counsel agreed that they did request the military judge take judicial notice of the 300.23 mil es. However, Appellant’s military defense counsel asserted that Berthold was actually closer and made Appellant’s alibi defense more plausi ble.

We disagree with Appellant and find that his counsel’s decisions not to offer the entirety of Appellant’s text messages with AL and the entirety of hisrecorded conversations with enlisted inmates to be more than reasonable given the content of those communications and the general context of Appellant’s case. Once again, Appellant’s counsel reasonably concluded that evi-United States v. Brown , No. ACM 38864

34 dence revealing the nature of Appellant’s relationship with a teenaged girl

— that ostensibly included sexual innuendo and drugs

— would ha ve damaged, rather than helped, their case. Appellant’s counsel l ikewise soundly assessed
the objectively negative impact recordings that captured Appellant

, inter alia

, bragging about his crimes, glorifying a criminal lifestyle, degrading superior s and ot hers, and using racially offensive language would have had on Appellant’s defense. Furthermore, we find that Appellant’s counsel ’s request for the military judge to take judicial notice of the distance between Fargo and Minot
was reasonable. Accordingly, A ppellant failed to show that these strategic evidentiary decisions fell measurably below the performance ordinarily expected of fallible lawyers. Even if trial defense counsel’s decisions can be considered ineffective, we find no reasonable probability tha t had the evidence championed by Appellant been admitted there would have been a different,
let alone a more favorable

, result for Appellant at trial. Appellant failed to
establish his counsel were ineffective in handling these evidentiary matters.

3. Failure to Properly Investigate

Lastly, Appellant alleges that his “[d]efense counsel was deficient in compiling favorable evidence for Appellant.” Appellant argues that he, “a legal layman, was able to obtain

. . . materials through his own initiative and whileconfined.” Appellant lists the “several materials that would have helped Appellant,” as follows:

a. A sexual assault allegation against AC. Included in the file is

a transcript of a conversation between Detective MM and KW, regarding the allegation that AC had sex with KW, then a minor. During this conversation, KW denied remembering having

sex with AC, her then

- fiancé. She later confessed to having sex
with him one to five times.

b. Affidavit from TC, a Minot Police officer, describing AL’s arrest for mari juana on 24 May 2014. After AL’s arrest, she was taken to the Ward County jail where she denied having anything on her person; however, a Corrections Officer found a glass smoking device with burnt marijuana and a baggie of marijuana in her bra.

c. Affida vit of Probable Cause relating to the shoplifting arrest of DE on 7 May 2012. During this arrest, DE lied to law enforcement about his age. The case was later transferred to the
Air Force.

d. Administrative segregation documents, dated 25 June 2014. [Staf f Sergeant (SSgt)] JO testified that Appellant entered segregation on 20 June 2014 and was only there for “two, maybeUnited States v. Brown , No. ACM 38864

35 three weeks.” [The documents show] that Appellant’s segregation began on 6 June 2014 and ended on 20 August 2014; a total of 75 days.

e. KW’s Facebook post on 3 June 2013, calling Appellant an “amazing roommate” who knows “how to treat a ladie.” [sic]

f. Photos of Appellant’s apartment taken by the Minot Police Department.

( C itations omitted).

Appellant then argues that the “records of AC’ s sexual assault allegation

. . . and KW’s Facebook posts would have challenged KW’s credibility.” He maintains that KW lied to law enforcement. Appellant also posits that KW’s Facebook posts “contradict[] her testimony that Appellant sexually assaulted
he r , ” and when she “moved out” of Appellant’s apartment. Appellant continues to support his allegations with the following arguments:

TC’s affidavit would have challenged AL’s credibility; she lied

to [law] enforcement.

DE’s shoplifting record would have cha llenged his credibility;
he lied to law enforcement

.

. . . . The administrative segregation documents contra di ct SSgt JO’s testimony and a memorandum he wrote detailing when Appellant entered segregation. The military judge relied on
these dates for her ru ling regarding illegal pretrial punishment

.

. . . . The photos of Appellant’s apartment taken by the Minot Police Department show the bed in the far corner of his room. Thiswould have made it virtually impossible for KW to have witnessed Appellant having sex with GB from the door and in the
dark.

( C itations omitted).

Appellant’s counsel described their pretrial preparation and related investigation. Appellant’s counsel explained their multiple discovery requests with the Government and conducting their own investigation of potential Government witnesses

— including searches of court records and social media. However, Appellant’s counsel did not discover or obtain the material listed by Appellant.United States v. Brown , No. ACM 38864

36 In response to some of Appellant’s specific claims, his counse l maintain
that , even if they had the information cited by Appellant, they would not
have cross

- examined KW about her sexual assault allegations against AC because “AC was an associate of [Appellant] and discussed during the trial as someone who was part o f several of the charged events and this records [sic] shows him having sex with underage girls, in which part of the charges against [Appellant] alleged his so

- called gang was involved.” Appellant’s counsel also state that they also would not have cross

- e xamined AL about her marijuana arrest because “it demonstrated that AL was using marijuana,which the Government’s evidence demonstrated was coming from [Appellant].” According to Appellant’s counsel, KW’s Facebook post apparently “came from [Appellant’s] Facebook page” and Appellant’s counsel asked Appellant’s family members for assistance in obtaining information from Appellant’s Facebook page.

Appellant’s successful efforts in obtaining information about a few witnesses and other material

— even while cond ucted from confinement

— do not,per se, render his counsel ineffective for failing to obtain the same information during their pretrial investigation. Indeed, Appellant’s trial defense counsel had “a duty to make reasonable investigations or to make a reaso nable decision that makes particular investigations unnecessary.” Strickland

, 466 U.S. at 691. “In considering whether an investigation was thorough, ‘[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.’” United St ates v. Akbar , 74 M.J. 364, 379

– 80 (C.A.A.F. 2015) (quoting Burger v. Kemp , 483 U.S. 776, 794 (1987) ) . Accordingly, we find that trial defense counsel took reasonable efforts to investigate and obtain, through discovery, favorable information in Appellant’ s case. Their pretrial conduct did not fall measurably below the performance ordinarily expected of fallible lawyers.

Even if Appellant’s trial defense counsel were ineffective in uncovering the information obtained by Appellant, we find no reasonable prob ability that there would have been a different result. First, Appellant was acquitted of the sexual offenses against KW. Second, AC was not a witness at trial and his counsel reasonably would not have cross

- examined KW about potential, similar sexual offen ses perpetrated by Appellant’s associate. Third, AL’s credibility was thoroughly examined by trial defense counsel. Additional, less

damaging impeachment would not have changed the outcome of Appellant’s case and Appellant h as failed to show as much. The i nformation pertaining to AB DE should have be disclosed by the Government, as previously discussed;however, this additional impeachment evidence would not have made a different result reasonably probable. In addition, Appellant testified about the
dates h e was arguably segregated during pretrial confinement. Therefore, the military judge was able to consider this information in deciding Appellant’sUnited States v. Brown , No. ACM 38864

37pretrial punishment claims; we find no reasonable probability the “administrative segregation documents” woul d have changed the military judge’s ruling. Finally, the photographs of Appellant’s room arguably corroborated portions of KW’s testimony and do not create a reasonable probability of a different outcome in Appellant’s trial.

Appellant’s trial defense cou nsel were not ineffective in their efforts to uncover favorable information for Appellant. However, assuming Appellant’s
trial defense counsel were ineffective, we further find no reasonable probability that, even with the information obtained by Appellant , there would have
been a different result.

D. Pretrial Punishment

Appellant was ordered into pretrial confinement at Minot AFB , NorthDakota. During an “inspection” of the facility’s common sleeping area, military confinement officials, for no articulated re ason, ransacked that portion of the facility

— throwing and littering the confinees’ items throughout the room.At one point, a noncommissioned officer ripped the Velcro rank off of Appell ant’s parka and threw it across the room. The conduct of these officia ls was captured on video.

At trial, Appellant claimed he suffered pretrial punishment and requestedappropriate sentence relief. After receiving evidence, to include the video recording s of the “inspe ction,” the military judge determined Appellant was enti tled to sentencing relief for the unreasonable delays in receiving his mail he experienced while in pretrial confinement. Pertinently, t he military judge declined to provide Appellant relief for the conditions of the “inspection,” finding, as fact, the fol lowing:

One guard ripped rank off a parka at that time, and threw it, but not away. No evidence provides context for why the guard did that, or why they threw thing s around during the search. The accused’s things were treated the same or better than the

o ther confine [e] s. I do not impute intent to punish base d on that search.

. . . . The accused discussed with [DE] that [he] would try to escapeif he got more than six months’ confinement. That might suggest that the only escape danger was after court

- marti al and not before. However, it was reasonable to enforce rules aimed at preventing escape throughout the period of confinement.

On appeal, Appellant maintains that the confinement officials’ conduct during the inspection served no legitimate purpose and wa s punitive in na-United States v. Brown , No. ACM 38864

38 ture. Appellant again asserts he was subjected to illegal pretrial punishment, entitling him to “appropriate sentence relief.”

Appellant bears the burden of establishing his entitlement to ad ditional sentence credit due to illegal pretrial punishment under Article 13, UCMJ

. United States v. Mosby , 56 M.J. 309, 310 (C.A.A.F. 2002).

Article 13, UCMJ, provides:

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pe nding against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

10 U.S.C. § 813.

The United States Court of Appeals for the Armed Forces (CAAF) outlined the contours of Article 13, UCMJ, as follows:

Article 13, UCMJ, prohibits two things: (1) the imposition ofpunishment prior to trial, and (2) conditions of arrest or pretrial con finement that are more rigorous than necessary to ensure
the accused ’ s presence for trial. The first prohibition of Article13 involves a purpose or intent to punish, determined by examining the intent of detention officials or by examining the purposes se rved by the restriction or condition, and whether such

purposes are “ reasonably related to a legitimate governmental objective. ” Bell [v. Wolfish] , 441 U.S. [520,] 539 . . . [(1979)]; [United States v.] McCarthy , 47 M.J. [162,] 165, 167 [(C.A.A.F. 1997)].

The second prohibition of Article 13 prevents imposing unduly rigorous circumstances during pretrial detention. Conditionsthat are sufficiently egregious may give rise to a permissive inference that an accused is being punished, or the conditions may be s o excessive as to constitute punishment. McCarthy , 47 M.J. at 165; United States v. James , 28 M.J. 214, 216 (C.M.A. 1989) (conditions that are “ arbitrary or purposeless ” can be considered to raise an inference of punishment).

United States v. King , 61 M.J. 225, 227

– 28 (C.A.A.F. 2005) ; see United States v. Zarbatany , 70 M.J. 169, 174 (C.A.A.F. 2011)

.
T he primary mechanism for addressing violations of Article 13, UCMJ, is
confinement credit

. Zarbatany , 70 M.J. at 174.United States v. Brown , No. ACM 38864

39 “ The question whether appellant is entit led to credit for a violation of Article 13 is a mixed question of fact and law. ” Mosby , 56 M.J. at 31 0 . A military judge’s findings of fact, to include a finding of no intent to punish, will not be overturned unless those findings are clearly erroneous. I d . “We will review denovo the ultimate question whether [Appellant] is entitled to credit for a violation of Article 13.” Id

. The military judge’s findings of facts are supported by the record and are not clearly erroneous ; however, we reach a different answer to the ultimate question of whether Appellant is entitled to credit for a violation of Article 13. In her analysis, the military judge found “that there was no purpose or intent by any governmental authority to punish the accused.” After finding unr easonable, excessive delay in screening Appellant’s mail, the military judgeconcluded, “All other actions were reasonably related to a legitimate government objective.” But even if this was so

— and even absent an intent to punish

— the military judge failed to properly consider whether the inspection was sufficiently egregious as to violate Article 13’s second prohibition. Although the search or inspection of the confinement sleeping area may have been reasonably related to a legitimate government objective, the military members’ behavior in conducting the search was

— like the screening of Appellant’s mail

— excessive. The video recording of the search displays a deplorable disregard of any professional expectation or standard. The noncommissioned officers conduc ting the search wantonly, and with apparent amusement, ransacked the area, throwing confinees’ personal items across the room and on the floor, flipping bed frames, and tearing the rank off of Appellant’s parka. Appellant’s items were treated with the same disregard as
the other confine e s. The fact that Appellant was subjected to the same egregious condition as others does not eliminate the excessive nature of the condition. The conditions of this “search” were so excessive as to constitute punishment. Ther efore, we find Appellant is entitled to some relief. After considering the nat ure of the Article 13 violation, to include its relatively short duration, we grant Appellant one week of additional confinement credit.

E. Post

- trial and Appellate Delay

The conven ing authority took action on Appellant’s case 228 days a fter Appellant’s court

- martial due to administrative and processing delays. Appellant’s record of trial was docketed with this court on 11 August 2015. Appellant’s civilian appellate defense counsel r equested nine 30

- day enlargements of time to file assignments of error. Each of these requests was granted in whole, except for the ninth, which was granted in part.

Convicted Airmen have a due process right to timely review and appeal of

courts

- martial c onvictions. United States v. M oreno , 63 M.J. 129, 135 (C.A.A.F. 2006). In M oreno , the CAAF established a presumption of unrea-United States v. Brown , No. ACM 38864

40 sonable post

- trial delay that requires a due process review when the convening authority does not take action within 120 days of tr ial, when a record oftrial is not docketed with us within 30 days of the convening authority’s action, and when we do not render a decision within 18 months of the case’s docketing. Id . at 142.

Accordingly, i f there is a Moreno

- based presumption of unrea sonable delay or an otherwise facially

- unreasonable delay, we are required to conduct a de novo review of Appellant’s case to determine whether his due process right to a speedy post

- trial review and appeal has been violated. Id

. at 135. To resolve this qu estion , we examine the four factors set forth in Barker v. Wingo

, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice.” Moreno , 63 M.J. at 135. Moreno identified three types of prejudice arising from post

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

– 39 (citations omitted).

“We analyze each factor and make a determination as to whether that factor favors the Government or the appellant.” Id . at 136. Then, we balanceour analysis of the factors to determine whether a due process violation occurred. Id . (citing Barker , 407 U.S. at 533) (“Courts must still engage in a difficult and sensitive balancing process.”). “No single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding.” Id. However, where an appellant has not shown prejudicefrom 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).

Although Appellant experienced at least two periods of presumptively unreasonable delay in the post

- trial processing and review of his case, he has not claimed any legally cognizable prejudice from the delay s , and we find

none

. Appellant also does not assert that his due process right to timely review and appea l had been violated. A fter conducting our analysis and balancing of the Barker factors, even considering the length and reasons for the delays, we do not find the delay s so egregious that tolerating them would adversely affect the public’s perception of the fairness and integrity of the military justice system. See id . Therefore, we find no due process violation. However, such a finding does not end our review of this matter.

Indeed, Appellant argues that he is entitled to “meaningful relief” in the form of “day

- for

- day credit for each day over the 120[

- day Moreno ] metric” in
accordance with United States v. Tardif , 57 M.J. 219 (C.A.A.F. 2002), rather
than a due process claim under Mo reno

. Tardif permits us to consider wheth-United States v. Brown , No. ACM 38864

41 er we should exercise our power under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to grant relief for excessive post

- trial delay. 57 M.J. at 224. In resolving Appellant’s request for Tardif relief, we are guided by fac tors enumerated
in United States v. Gay , 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d , 75 M.J. 264 (C.A.A.F. 2016), with no single factor being dispositive. 13

The lengthy post

- trial administrative delay between Appellant’s case and
action is indefens ible. See U nited States v. Dunbar

, 31 M.J. 70, 73 (C.M.A. 1990). However, a fter balancing the remaining factors, to include our consideration of the delay attributed to Appellant’s civilian appellate counsel, we conclude no extraordinary exercise of our Ar ticle 66(c) authority is warrantedhere. Considered as a whole, Appellant’s case has not been subjected to excessive delay, and we discern no particular harm to Appellant. The delay s have not lessened the disciplinary effect of Appellant’s sentence. The de lay s have not adversely affected our ability to review Appellant’s case or grant him relief, if warranted. The circumstances of Appellant’s case do not move us to reduce an otherwise appropriate sentence imposed by the military judge and approved by the co nvening authority.

F. Sentence Reassessment

Having found Appellant’s conviction of unlawful entry factually insufficient, we have to consider whether we can reassess his sentence or whether a sentence rehearing is required.

Indeed, w e have “broad discretion” when reassessing sentences. United
States v. Winckelmann , 73 M.J. 11, 12 (C.A.A.F. 2013). The CAAF has repeatedly held that if we “can determine to [our] satisfaction that, absent any error, the sentence adjudged would have been of at least a certain seve rity, then a sentence of that severity or less will be free of the prejudicial effects of
error . . . .” United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986). Thus, our

13 These factors include: (1) How long the delay exceeded the standards set forth in
Moreno ; (2) w hat reasons, if any, the Government set forth for the delay, and whether there is any evidence of bad faith or gross indifference to the overall post

- trial processing of this case; (3) k eeping in mind that our goal under Tardif is not to analyzefor prejudice, whether there is nonetheless some evidence of harm (either to the appellant or institutio nally) caused by the delay; (4) w hether the delay has lessened the disciplinary effect of any particular aspect of the sentence, and whether relief is consistent with the dual goals of justice and good order and discipline; (5) w hether there is any evidenc e of institutional neglect concerning timely post

- trial processing, either across the service or at a particular installation; and (6) g iven the passage of time, whether this court can provide meaningful relief in this particular situation. Gay , 74
M.J. at 744

.United States v. Brown , No. ACM 38864

42 analysis is based on a totality of the circumstances with consideration of the
follow ing factors: dramatic changes in the penalty landscape and exposure ; the forum ; whether the remaining offenses capture the gravamen of the criminal conduct ; whether significant or aggravating circumstances remain admissible and relevant ; and whether the re maining offenses are the type thatwe as appellate judges have experience and familiarity with to reliably determine what sentence would have been imposed at trial. Winckelmann , 73
M.J. at 15

– 16.

Our decision to dismiss Appellant’s unlawful entry convictio n only changes the punitive landscape of this case by six months of confinement

. The remaining sexual , drug, and gang

- related offenses capture the gravamen of Appellant’s c riminal conduct. Moreover, t he forum was military judge alone and
we are “more likel y to be certain of what a military judge would have done.”
Id. at 16. Given our experience and familiarity with sentences appropriate for Appellant’s convictions, w e are confident that absent any error

, the military judge would have sentenced Appellant to at least a dismissal, confinement for 24 years and 9 months, and forfeiture of all pay and allowances. Accordingly, a sentence rehearing in not required.

III. C ONCLUSION
The finding of guilt to Specification 4 of Charge VII is SET ASIDE and
DISMISSED WITH PREJ UDICE . The remaining findings and sentence, as reassessed, are correct in law and fact, and are AFFIRMED . Article 66(c), UCMJ. Appellant is credited with one week ( seven days) of con finement credit for pretrial punishment suffered in violation of Article 1 3, UCMJ

.

FOR THE COURT

KURT J. BRUBAKER Clerk of the Court