UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 38949

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UNITED STATES

Appellee

v.

Nathaniel L. PENALOSA

Air Force Academy Cadet, U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 27 June 2017

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Military Judge: Shelly W. Schools.

Approved sentence: Dismissal and confinement for 36 months. Sentence adjudged 3 November 2015 by GCM convened at the United States Air Force 

Academy, Colorado.

For Appellant: Major Johnathan D. Legg, USAF.

For Appellee: Major J. Ronald Steelman III, USAF; Captain Matthew L. Tusing, USAF; Gerald R. Bruce, Esquire.

Before DREW, J. BROWN, and MINK, Appellate Military Judges.

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

and Senior Judge J. BROWN joined.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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MINK, Judge:

A general court-martial composed of a military judge sitting alone found 

Appellant guilty, consistent with his pleas and in accordance with a pretrial 

agreement (PTA), of divers wrongful use, distribution, introduction, and manufacture of 3,4 methylenedioxy-methamphetamine (MDMA); divers wrongful 
United States v. Penalosa, No. ACM 38949

2

use, distribution, and introduction of Modafinil; divers wrongful distribution 

and introduction of lysergic acid diethylamide (LSD); and wrongful use of LSD, 

each in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 912a. The adjudged sentence included a dismissal, confinement for 

42 months, and forfeiture of all pay and allowances. The convening authority 

approved the dismissal and, in compliance with the terms of the PTA, 36 

months of confinement.1

Appellant raises three issues on appeal: (1) whether the finding of guilt to 

Specification 2 of the Charge must be set aside because it was entered by exceptions, removing the charged language “on divers occasions,” and the record 

fails to specify the particular instance of conduct upon which the modified finding is based; (2) whether Appellant’s trial defense counsel were ineffective 

when they advised Appellant to enter into a PTA to plead guilty rather than 

litigate a motion to suppress evidence obtained after Appellant invoked his 

right to counsel; and (3) whether Appellant’s trial defense counsel were ineffective when they advised Appellant to enter into a PTA to plead guilty rather 

than litigate a motion for appropriate relief for alleged violations of Article 13, 

UCMJ, 10 U.S.C. § 813.2 Finding no relief is warranted, we affirm the findings 

and sentence as approved by the convening authority.

I. BACKGROUND

All of the offenses for which Appellant was found guilty took place between 

on or about 1 August 2014 and on or about 30 November 2014, while Appellant 

was a cadet at the United States Air Force Academy. On multiple occasions

during that period, Appellant used MDMA, a Schedule I controlled substance;

introduced it onto the Air Force Academy; and distributed it to two other Air 

Force Academy cadets and a civilian woman. Appellant also manufactured a 

pill form of MDMA on multiple occasions by placing the powdered form of the 

drug into capsules. Appellant, again on multiple occasions during that period, 

used Modafinil, a Schedule IV controlled substance; introduced it onto the Air 

Force Academy; and distributed it to three other Air Force Academy cadets. In 

addition, on multiple occasions, Appellant introduced LSD, a Schedule I controlled substance, onto the Air Force Academy and distributed it to three other 

Air Force Academy cadets. Appellant also used LSD on one occasion during 

this time period.

 1 Even though the convening authority did not approve the adjudged forfeiture of all 

pay and allowances, the pretrial agreement placed no limitation on the convening authority’s power to do so.

2 Appellant’s second and third assignments of error were raised pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
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II. DISCUSSION

A. Ambiguous Verdict 

As charged, Specification 2 of the Charge alleged that Appellant wrongfully 

used LSD “on divers occasions between on or about 1 August 2014 and on or 

about 30 November 2014.” At trial, Appellant pleaded guilty to this specification except for the charged language, “on divers occasions,” to which Appellant 

pleaded not guilty. During the providence inquiry,3 Appellant admitted to only 

one use during the charged time frame. A stipulation of fact introduced into 

evidence discussed the single use of LSD by Appellant to which he pleaded 

guilty. According to the stipulation of fact, Appellant’s single use of LSD occurred “[d]uring or after ‘Parent’s Weekend,’ which started on 30 August 2014 

. . . [a]fter returning from a football game” at which time, Appellant and two 

other Air Force Academy cadets used LSD. The Government did not attempt 

to prove the excepted language. The military judge, after conducting the providence inquiry and reviewing the evidence introduced at trial, found Appellant 

guilty of a single use of LSD during the charged timeframe. In accordance with 

his plea, the military judge found Appellant not guilty of the excepted words, 

“on divers occasions.”

Relying on United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), Appellant 

asserts that the finding of guilty as to Specification 2, eliminating the words 

“on divers occasions,” created an ambiguity in the verdict since the military 

judge did not specify the particular incident of LSD use for which he found 

Appellant guilty. We disagree.

Appellant misunderstands the application of Walters and its progeny. Contrary to Appellant’s assertion, there is no ambiguity in the finding of guilty nor 

is there any question as to which specific instance of LSD the military judge 

used to find Appellant guilty. An ambiguity only arises when “the record does 

not indicate which of the alleged incidents forms the basis of the conviction.”

United States v. Ross, 68 M.J. 415, 417 (C.A.A.F. 2010). Despite the charged 

language including the words “on divers occasions,” Appellant himself pleaded 

guilty to only a single use of LSD and provided the factual basis to establish

his guilt to that single use both during the providence inquiry and in the stipulation of fact. In each of the cases cited by Appellant in support of his argument, the fact-finder was presented evidence of at least two possible instances 

of misconduct. No evidence of another alleged use of LSD by Appellant was 

presented during his court-martial. Based on a review of the record in Appellant’s case, there is no question as to what single instance of criminal conduct 

formed the basis for the military judge’s finding of guilty as to Specification 2 

of the Charge. We therefore reject this allegation of error.

 3 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
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B. Ineffective Assistance of Counsel

In his last two assignments of error, Appellant asserts that trial defense 

counsel provided him ineffective assistance of counsel by advising him to enter 

into a PTA to plead guilty rather than litigating a motion to suppress evidence 

and litigating a motion for appropriate relief for alleged violations of Article 

13, UCMJ. Appellant submitted two declarations wherein he addresses these 

two issues. In one declaration, Appellant claims that had he known about the 

possibility of suppressing his cell phone text messages, he “would have insisted 

on going to trial.” In the second declaration, Appellant described what he believes constituted illegal pretrial punishment. We ordered his trial defense 

counsel, Captain (Capt) JL and Mr. FS, to submit affidavits in response to Appellant’s assertions. In reviewing claims of ineffective assistance of counsel, we 

look “at the questions of deficient performance and prejudice de novo.” United 

States v Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (quoting United States v. 

Gutierrez, 66 M.J. 329, 330–31 (C.A.A.F. 2008)).

To establish ineffective assistance of counsel, Appellant “must demonstrate 

both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 

2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Under the 

first prong, Appellant has the burden to show that his “counsel’s performance 

fell below an objective standard of reasonableness—that counsel was not functioning as counsel within the meaning of the Sixth Amendment.” United States 

v. Edmond, 63 M.J. 343, 351 (C.A.A.F. 2006) (quoting United States v. Davis, 

60 M.J. 469, 473 (C.A.A.F. 2005)). The question is, therefore, “did the level of 

advocacy ‘fall[ ] measurably below the performance . . . [ordinarily expected] of 

fallible lawyers?’” United States v. Haney, 64 M.J. 101, 106 (C.A.A.F. 2006) 

(quoting United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in 

original). Under the second prong, the deficient performance must prejudice 

the accused through errors “so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable.” United States v. Tippit, 65 M.J. 69, 76 

(C.A.A.F. 2007) (quoting Strickland, 466 U.S. at 687). Counsel is presumed 

competent until proven otherwise. Strickland, 466 U.S. at 689.

Additionally, in the guilty plea context, “[t]o satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” United States v. Bradley, 71M.J. 13, 16 (C.A.A.F. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”

Id. at 16–17 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). Further,

Appellant must satisfy an objective inquiry: he must show that had he been
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advised properly, it would have been rational for him to reject the benefits of

the pretrial agreement and to plead not guilty. Id. at 17.

1. Motion to Suppress

Appellant first claims his counsel were ineffective by advising him to enter 

into a PTA rather than litigating a motion to suppress text messages from his 

cell phone and the evidence derived from those messages. Appellant speculates 

that if the motion to suppress had been successful, he “would [have] at the very 

least been given a shorter sentence than [he] actually received.”

In her affidavit, Capt JL stated that she and Mr. FS, Appellant’s civilian 

trial defense counsel, advised Appellant of the potential motions that could be 

raised in his case, including the motion to suppress the text messages from 

Appellant’s cell phone. Capt JL stated that she and Mr. FS advised Appellant 

that even if the motion were successful, it “would not be case dispositive for 

him because the government still had independent and substantial incriminating evidence against him that was likely to result in multiple convictions.” Capt

JL also noted that the negotiated PTA offered Appellant substantial benefit, 

reducing the maximum possible confinement in Appellant’s case from 100 

years to 3 years, in addition to deferring any adjudged confinement for approximately one month so that Appellant could visit and attend to his mother’s 

well-being prior to entering confinement. Capt JL stated that she and Mr. FS 

advised Appellant to enter into the PTA because they believed it was in his 

best interest to do so.

In his affidavit, Mr. FS stated:

Even if we suppressed some of the evidence, the government’s 

case was very strong with respect to the allegations that were 

based on the evidence found in his room and from other independent sources. In other words, Cadet Penalosa was told that 

he was at risk of being convicted of numerous drug offenses and 

would be facing a sentencing hearing.

I am always careful to make it clear to my clients that they 

should not enter into a PTA unless they are doing so voluntarily 

and believe it is in their best interests to do so. With Cadet 

Penalosa specifically I felt he understood his options, including 

the benefits of being able to defer execution of any sentence to 

confinement until after Thanksgiving. It was my impression 

that the ability to help his mother after trial was a significant if 

not overriding factor that convinced him to enter the PTA.

It is clear from Appellant’s declaration that he discussed the issue of the 

seizure of the text messages from his cell phone with his trial defense counsel 

prior to entering into the PTA, though Appellant now asserts he agreed to the 
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PTA because he was advised there were no defenses in his case and that “he 

would have insisted on going to trial” if he had known about the possibility of 

suppressing his cell phone text messages and any derivative evidence. Trial 

defense counsel’s affidavits make it equally clear that they advised Appellant 

of the litigation risks involved with raising such a motion and pleading not 

guilty if he chose to reject the negotiated PTA, given the other evidence available in his case.

We find it unnecessary to resolve the factual discrepancy between Appellant and trial defense counsel’s assertions regarding their discussions as to the

potential of suppressing the text messages and any derivative evidence. First, 

an appellant who premises a claim of ineffective assistance of counsel on the 

failure to make a motion must show that there is a reasonable probability that 

he would have prevailed on the motion. United States v. Jameson, 65 M.J. 160, 

163–164 (C.A.A.F. 2007). We are not persuaded that there was a reasonable 

probability that the suppression motion here would have succeeded. Second, 

even if it had succeeded, we are not persuaded that the outcome of the trial or 

the decision to plead guilty would have been different. Based on the record 

before this court, it is undisputed that in light of other evidence in the case 

even a successful suppression motion would not have been case dispositive.

Consequently, even assuming arguendo that trial defense counsel never discussed a non-case dispositive, potential suppression motion with Appellant, 

Appellant has failed to demonstrate either deficient performance or prejudice. 

2. Article 13, UCMJ

Appellant next contends that his trial defense counsel provided ineffective 

assistance of counsel by advising him to enter into a PTA rather than litigating 

a motion for alleged pretrial punishment in violation of Article 13, UCMJ.

In her affidavit, Capt JL details the extensive steps she took to investigate 

any alleged pretrial punishment of the Appellant, including information received during pretrial discovery practice. Capt JL stated that based on her investigation, she did not believe “there was any evidence to support an intent to 

punish [Appellant] prior to trial,” that there was a no “reasonable probability 

of success” if they were to file such a motion, and that if such a motion were 

filed and it was successful, any potential remedy would not have been nearly 

as great as the benefit Appellant would receive from the favorable terms of 

Appellant’s PTA.

Again, it is Appellant’s burden to demonstrate the reasonable probability 

that an Article 13 motion would have succeeded, and again, we are not persuaded. Second, even though Appellant’s declaration outlines the events that 

he now asserts evidences an intent to punish or stigmatize him, when asked 

by the military judge during the presentencing portion of the court-martial, 

Appellant denied he had been punished in any way prior to trial that would 
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constitute illegal pretrial punishment under Article 13, UCMJ. Appellant thus

“contradicts a matter that is within the record of a guilty plea” yet does not 

“set[ ] forth facts that would rationally explain why he would have made such 

statements at trial but not upon appeal.” United States v. Ginn, 47 M.J. 236, 

248 (C.A.A.F. 1997). For both reasons, Appellant’s claim of ineffective assistance fails.

III. CONCLUSION

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

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court