**** CORRECTED COPY ****

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Lieutenant Colonel JAMES W. RICHARDS IV

United States Air Force

ACM 38346

2 May 2016

Sentence adjudged 21 February 2013 by GCM convened at Tyndall Air Force 

Base, Florida. Military Judge: Mark L. Allred and Vance H. Spath (Dubay

hearing).

Approved Sentence: Dismissal, confinement for 17 years, and forfeiture of 

all pay and allowances.

Appellate Counsel for Appellant: Major Thomas A. Smith and William E. 

Cassara (civilian counsel) (argued).

Appellate Counsel for the United States: Major Thomas J. Alford (argued); 

Major Mary Ellen Payne; Captain Richard Schrider, Captain Collin Delaney

and Gerald R. Bruce, Esquire.

Before

MITCHELL, HECKER, and TELLER

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

MITCHELL, Chief Judge:

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

Appellant, contrary to his pleas, of one specification of possessing digital images of minors 

engaging in sexually explicit conduct, six specifications of committing an indecent act with 

a male under 16 years of age, and four specifications of failing to obey a lawful order, in 

violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934. Pursuant to defense 
2 ACM 38346 

motions, the military judge dismissed several other specifications that alleged various 

offenses. The military judge sentenced Appellant to a dismissal, confinement for 17 years, 

and forfeiture of all pay and allowances. The convening authority approved the sentence 

as adjudged.

Appellant’s assignment of errors raises 15 issues:

I. The military judge erred in failing to suppress evidence based on various 

alleged Fourth Amendment1 violations;

II. Appellant received ineffective assistance of counsel when his trial defense 

counsel disclosed confidential information to the trial counsel that led to the 

discovery of evidence used against Appellant at trial;

III. Appellant’s right to speedy trial under Rule for Courts-Martial (R.C.M.) 707 

was violated;

IV. Appellant was denied his right to a speedy trial under Article 10, UCMJ, 10 

U.S.C. § 810;

V. The military judge abused his discretion by failing to exclude Appellant’s 

ex-wife’s testimony under Mil. R. Evid 404(b);

VI. The military judge abused his discretion in not suppressing evidence of other 

sexual offenses under Mil. R. Evid. 413;

VII. The evidence is legally and factually insufficient to support the specification 

of possessing digital images of minors engaging in sexually explicit conduct;

VIII. The orders of which Appellant was convicted of violating were not lawful;

IX. One particular no-contact order was not lawful because it violated 

Appellant’s right to be protected from compulsory self-incrimination and 

interfered with his right to represent himself in criminal proceedings;

X. Two specifications of indecent acts represented an unreasonable 

multiplication of charges;

XI. The military judge erred in failing to award Appellant pretrial confinement 

credit for violations of R.C.M. 305(i);

 

1 U.S. CONST. amend IV.
3 ACM 38346 

XII. The military judge erred in calculating the maximum punishment for the 

specification of possessing digital images of minors engaging in sexually 

explicit conduct;

XIII. The record of trial is not substantially complete because a defense motion is 

missing;

XIV. The cumulative effect of the errors in this case denied Appellant a fair trial; 

and

XV. Appellant received ineffective assistance of counsel when his defense 

counsel failed to raise numerous alleged legal errors to the convening 

authority in clemency.

Two months after filing his assignment of errors, Appellant raised 16 additional 

issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). This court 

accepted the late Grostefon submissions. These issues allege:

XVI. The charges and specifications were improperly referred to a general courtmartial under R.C.M. 201(b)(3) as a result of the convening authority’s 

failure to ensure the requirements imposed under R.C.M. 601(d)(2)(A) were 

first satisfied;

XVII. Appellant was denied effective assistance of counsel by civilian defense 

counsel’s failure to object to the convening authority’s exclusion of time for 

speedy trial purposes in the Article 32, 10 U.S.C. § 832, investigating 

officer’s appointment memorandum;

XVIII. Appellant was denied effective assistance of counsel as a result of civilian 

defense counsel’s failure to file objections to the Article 32, UCMJ, resulting 

in the military judge’s ruling on waiver under R.C.M. 405(k);

XIX. Appellant’s conviction for possessing digital images of minors engaging in 

sexually explicit conduct is barred by the statute of limitations;

XX. The military judge erred in denying Appellant’s request for the detailing of 

a particular individual military defense counsel;

XXI. The military judge erred in admitting the testimony of a witness under Mil. 

R. Evid. 702;
4 ACM 38346 

XXII. Appellant was denied effective assistance of counsel by trial defense 

counsel’s failure to object to the testimony of a witness under Mil. R. Evid. 

702;

XXIII. The military magistrate did not have a substantial basis for determining 

probable cause existed for a search authorization for Appellant’s home and 

automobile;

XXIV. Appellant was denied effective assistance of counsel by trial defense 

counsel’s failure to object to evidence seized as a result of a search 

authorization for Appellant’s home and automobile;

XXV. The evidence presented by the Government with respect to three of the 

specifications for violating a lawful order was legally and factually 

insufficient to support the findings;

XXVI. Appellant was denied effective assistance of counsel by trial defense 

counsel’s failure to object to two of the indecent acts specifications as an 

unreasonable multiplication of charges;

XXVII. Appellant was subject to illegal pretrial punishment in violation of Article 

13, UCMJ, 10 U.S.C. § 813;

XXVIII. Appellant was subject to conditions while confined by the Air Force posttrial at a county jail that constituted a violation of Article 55, UCMJ, 10 

U.S.C. § 855;

XXIX. The military magistrate did not have a substantial basis for determining the 

existence of probable cause for a search authorization of Appellant’s 

residence;

XXX. The military judge erred in calculating the maximum punishment for the 

specification of possessing digital images of minors engaging in sexually 

explicit conduct; and

XXXI. Appellant was denied his right to freedom from unreasonable search and 

seizure, citing the same general issues raised in Issue I.

This court granted a motion for oral argument on one aspect of Issue I (dealing with 

the Government’s warrantless placement of a global positioning system (GPS) device on 

Appellant’s car) and Issue II (ineffective assistance of counsel when trial defense counsel 

allegedly disclosed confidential information to the trial counsel that led to the discovery of 

evidence used against Appellant at trial). We also sua sponte notified the parties that 
5 ACM 38346 

questions at oral argument might include another aspect of Issue II (whether law 

enforcement investigators’ searches remained within the scope of the warrant) and Issue V 

(involving the admission of testimony by Appellant’s ex-wife). The first oral argument 

was held on 17 February 2015.2 

Following oral argument, we ordered a post-trial hearing under United States v. 

DuBay, 37 C.M.R. 411 (C.M.A. 1967), to resolve disputed factual issues raised by 

declarations the parties submitted concerning Issue II. We held a second oral argument on 

this case on 29 September 2015.3 After receiving the results of the post-trial hearing, 

allowing additional appellate submissions from the parties, and benefiting from the 

presentations at oral argument, we find no error materially prejudicial to a substantial right 

of Appellant. Our reasoning on several of the assignments of error is further detailed in 

the following opinion. We summarily reject the other remaining issues which require no 

additional analysis or relief. See United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987). 

We affirm the findings and the sentence.

I. Background

At the time of these offenses, Appellant was a judge advocate assigned to the utility 

law field support center at Tyndall Air Force Base (AFB), Florida. He had served as a 

judge advocate since 1997, including a prior tour as a trial defense counsel.

In April 2011, the National Center for Missing and Exploited Children notified the 

Air Force Office of Special Investigations (AFOSI) of a child sexual abuse allegation 

involving Appellant. One of Appellant’s former “little brothers” in the Big Brothers Big 

Sisters (BBBS) program, now age 27, was alleging Appellant had sexually molested him 

between 1993 and 1997, prior to Appellant joining the Air Force. 

AFOSI investigated and discovered Appellant had served in BBBS for nearly 20 

years, mentoring five “little brothers” in various states. AFOSI also learned Appellant had 

been paired with a child in Florida in October 2010, but BBBS had dropped Appellant from 

the program in February 2011 for violating various BBBS policies, including unauthorized 

visits with the child. A representative from BBBS also told AFOSI that Appellant had 

flown two former “little brothers” to Florida during the holiday season in 2010.

Over the ensuing months, AFOSI’s investigation (including physical surveillance 

of Appellant) led agents to suspect Appellant may have committed misconduct toward 

other boys. Therefore, in August 2011 agents received permission from the AFOSI region 

commander to place a GPS tracking device on Appellant’s car, as detailed more fully in 

 

2 At that time, the panel consisted of Chief Judge Mitchell, Senior Judge Hecker, and Judge Weber. The Judge 

Advocate General designated Colonel Mitchell as the Chief Judge when Colonel Allred is conflicted from reviewing 

a case. 

3 By this time, Judge Weber was no longer assigned to the court. The panel consisted of Chief Judge Mitchell, Senior 

Judge Hecker, and Senior Judge Teller.
6 ACM 38346 

the discussion below. Using information from this device, AFOSI learned Appellant had 

signed a 17-year-old boy, AP, onto Tyndall AFB numerous times. Appellant lived on 

Tyndall AFB. AFOSI received AP’s parents’ permission to interview the boy, who stated 

he and Appellant had developed a sexual relationship after the two met online. AP also 

stated he and Appellant communicated online as the relationship developed. Within weeks, 

however, AP recanted his statement concerning his sexual relationship with Appellant, 

though he did not deny other aspects of the relationship.

At this time, AFOSI was coordinating with local sheriff’s office who assumed a 

primary role in investigating the allegations involving AP while AFOSI investigated other 

aspects of the case. Because Appellant lived on base, however, AFOSI used the 

information from AP’s statement to obtain a military magistrate’s authorization to search 

Appellant’s residence and person and seize items used to electronically communicate with 

AP. AFOSI seized a number of electronic devices from Appellant’s home. In coordination 

with AFOSI, local sheriffs arrested Appellant the day after the search and seized other 

electronic devices Appellant had in his possession.

An analysis of Appellant’s computer hard drives revealed thousands of images of 

child pornography depicting adult males engaging in sexual acts with boys. AFOSI also

uncovered images of a male sexually molesting the younger sibling of a “little brother” 

Appellant sponsored years earlier. The adult male’s face was not visible in the images, but 

other aspects of the images indicated Appellant was the person with the child in the images. 

Appellant was charged with committing indecent acts with the approximately 7 year old 

sibling. He was convicted of this offense, as well as violating a no-contact order by 

communicating with the child. Appellant was also convicted of violating the no-contact 

order by communicating with another child who had been assigned to him as a little brother.

Early in the AFOSI investigation, Appellant’s commander issued Appellant a nocontact order regarding BBBS and other mentoring programs. A series of extensions and 

clarifications followed, and, in November 2011, Appellant’s commander issued him a 

supplemental no-contact order concerning communication with AP. In March 2012, 

despite the no-contact orders, AFOSI agents discovered Appellant transporting AP in 

Appellant’s car. The agents attempted to stop Appellant, but he drove away at an 

accelerated rate. After a brief pursuit, Appellant stopped. Appellant was promptly placed 

into pretrial confinement, where he remained until trial. Appellant was convicted of 

violating the no-contact order for communicating and being in the presence of AP.

AFOSI obtained additional search authorization for Appellant’s home, car, and 

office. In a series of searches, agents seized, among other items, an external hard drive 

which contained a number of additional images of child pornography. The images from 

this hard drive formed the basis for the one specification of possessing child pornography 

of which Appellant was ultimately convicted, as well as the indecent act specifications. 

The numerous images of child pornography found during earlier searches were not 
7 ACM 38346 

included in this specification, though the Government did admit them at trial under Mil. R. 

Evid 404(b). Additional facts relevant to each issue are detailed below.

II. Issues I, XXIX, and XXXI—Search and Seizure Issues

At trial and again on appeal, Appellant alleged the Government violated his Fourth 

Amendment rights during the investigation in five distinct ways: (1) AFOSI placed a GPS 

tracking device on his car without a search warrant or authorization; (2) the military 

magistrate issued a search authorization that was overbroad in describing the items to be 

seized; (3) AFOSI conducted a warrantless search of Appellant’s hard drives; 

(4) investigators exceeded the scope of the search authorization by searching for photos 

and videos on Appellant’s hard drives; and (5) probable cause no longer existed at the time 

investigators searched the hard drives because by that point AP had recanted his allegation 

of a sexual relationship with Appellant. In a Grostefon assignment of error, Appellant reraised these same issues, adding his own arguments and citations in support of his position.

We address each aspect of this assignment of error in turn. Having considered all 

matters submitted in support of this issue, (including Appellant’s Grostefon submission) 

plus oral argument, we ultimately find investigators’ actions in this case do not warrant 

suppression of any evidence against Appellant. In so holding, we note that certain aspects 

of investigators’ actions in this case are hardly model investigative practices, but we find 

the searches and seizures in this case comport with the constitutional requirement of 

reasonableness.

A. Warrantless Use of GPS Tracking Device

In June 2011, AFOSI began physical surveillance of Appellant but could not track 

Appellant continuously due to manpower limitations. Therefore, in August 2011, the local 

AFOSI detachment sought approval from its region commander to place a GPS device on 

Appellant’s car which would allow AFOSI to track its movements by recording and 

transmitting the vehicle’s locational coordinates. Following existing AFOSI guidelines, 

investigators did not seek a search warrant or create an affidavit. The request to the region 

commander stated the monitoring was needed to “determine the locations SUBJECT 

frequents” and asserted that the “investigative activity [was] essential to determine if other 

possible victims exist[ed].” The request asserted that “[the local AFOSI detachment did] 

not have the manpower available to track SUBJECT’s movements on a daily basis.” It 

also stated that “[t]he tracker [would] be used to determine if SUBJECT visits any 

children’s organizations, parks, sports complexes, etc. where he could potentially have 

access to children.” 

Upon receiving the region commander’s approval for 60 days of electronic 

surveillance, AFOSI attached the GPS device to the underside of Appellant’s car on 23 

August 2011 while the car was parked on base. The device remained on the car until 12 

October 2011. Toward the end of this period, AFOSI used the GPS data to determine 
8 ACM 38346 

Appellant was making frequent stops at the Tyndall AFB visitors’ center at odd hours. 

AFOSI then reviewed the center’s sign-in sheets and learned Appellant was signing 17-

year-old AP onto the base. AFOSI previously had no knowledge of AP and his connection 

to Appellant. Two AFOSI agents who testified in motions practice both clearly indicated 

that the GPS data—not any other information gained during the investigation—led them 

to check the visitors’ center records. 

After learning this information from AFOSI, detectives from the local sheriff’s 

office interviewed AP on 9 November 2011. AP related he and Appellant had met online 

and began engaging in sexually explicit conversations. Within several months, their 

relationship became sexual and the two engaged in sexual acts on at least 25 occasions 

starting in early May 2011, with the encounters taking place in Appellant’s on-base home. 

AP recanted his allegation of sexual activity shortly thereafter, but he did not deny that he 

and Appellant met frequently at Appellant’s home. That same day, AFOSI sought and 

received authorization from a military magistrate to search Appellant’s on-base residence 

for certain electronic media, based, in part, on AP’s statements that he met and engaged in 

sexually explicit conversations with Appellant online. 

AFOSI continued its investigative activity and, in January 2012, it again placed a 

GPS tracking device on Appellant’s car after receiving the region commander’s 

permission. Within several days, the Supreme Court issued a decision holding that the 

installation of a GPS tracking device on a vehicle constitutes a search for Fourth 

Amendment purposes. AFOSI headquarters promptly issued guidance to cease use of these 

devices in the absence of a search warrant or authorization. In response, the AFOSI 

detachment removed the device from Appellant’s vehicle and did not review the data 

obtained from it. Appellant does not allege any prejudicial error resulted from the second 

use of the GPS tracking device; only the first use of the device between August and October 

2011 is at issue in this appeal.

In that Supreme Court decision, Jones v. United States, 132 S.Ct. 945 (2012), the 

Court analyzed whether the installation and month-long monitoring of a GPS device on the 

defendant’s car constituted a search under the Fourth Amendment.4 All nine Justices 

agreed that the defendant was searched when the police attached a GPS device to the 

underside of his car and tracked his movements for a month. Id. at 949. The Court split, 

however, on what constituted the “search.” The majority held that the Government’s 

attachment of the device, when coupled with an attempt to obtain information, constitutes 

a “search” under the Fourth Amendment. Id. Utilizing the common-law trespassory test, 

the Court found the government invaded the defendant’s “effects” (vehicle) when it 

physically intruded on the defendant’s private property to install the device for the purpose 

of obtaining information, a property rights intrusion that would have been considered a 

search within the meaning of the Fourth Amendment when it was adopted. Id. at 949, 954. 

 

4 The Fourth Amendment ensures that “[t]he right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend IV.
9 ACM 38346 

In reaching this conclusion, the Jones majority did not rely on the reasonable expectation 

of privacy test that had been exclusively used to analyze Fourth Amendment issues for 

almost 50 years, as the majority concluded the common law trespass-based approach 

disposed of the issue.5 The four concurring justices would have utilized the expectation of 

privacy test and found a violation due to the long term (four week) tracking of the 

defendant, even when the tracking occurred on public streets.6 

Relying on Jones, Appellant moved to suppress the GPS-derived evidence 

discovered through the use of the GPS data, including information derived from all media 

eventually found on Appellant’s electronic devices and the interviews of AP. During that 

litigation, the Government conceded its placement and use of the GPS was a search within 

the meaning of the Fourth Amendment based on Jones, and the military judge agreed. The 

military judge, however, did not suppress any of the evidence, after finding applicable 

several exceptions to the exclusionary rule.

The Government ultimately did not offer the GPS evidence into evidence. Also, 

Appellant was not charged with sexually abusing AP, and thus the sexually oriented 

information provided by AP during his interviews was never admitted into evidence, 

though AP did testify regarding his contact with Appellant after he was issued the nocontact order. Appellant was convicted of possession of child pornography based on 

evidence found on one of the seized computer items. This evidence included some images 

of Appellant molesting the younger sibling of a “little brother” he sponsored years earlier, 

which served as the evidence for the indecent acts charge. Appellant argues that all this 

evidence stemmed from the Government’s improper use of the GPS device between April 

and October 2011.

The Fourth Amendment protects against unreasonable searches and seizures. 

United States v. Long, 64 M.J. 57, 61 (C.A.A.F. 2006). The exclusionary rule is a judicially 

created remedy for violations of the Fourth Amendment and applies to evidence directly 

obtained through such a violation as well as evidence that is the indirect product (fruit) of 

unlawful police activity. United States v. Wicks, 73 M.J. 93, 103 (C.A.A.F. 2014). 

 

5

 The D.C. Circuit Court of Appeals had reversed the defendant’s conviction, concluding the extended surveillance 

of the defendant’s vehicle during a 28-day period constituted a warrantless search that was prohibited by the Fourth 

Amendment because (1) the use of the GPS was a search that violated the defendant’s reasonable expectation of 

privacy in his movements over the month’s long use of the GPS, (2) the search was not reasonable nonetheless, and 

(3) the improper admission of the GPS-derived data was not harmless. United States v. Maynard, 615 F.3d 544, 555–

68 (D.C. Cir. 2010). The Supreme Court unanimously agreed the court of appeals’ decision should be affirmed but 

the five justice majority opinion instead relied on trespass grounds, not expectation of privacy. Jones v. United States, 

132 S.Ct. 945, 949–50 (2012). The Court also noted the government had waived its argument that its GPS monitoring 

was justified by its alleged reasonable suspicious or probable cause to believe Jones was involved in drug distribution 

when it failed to raise this issue in the lower court. Id. at 954. A four justice concurring opinion followed the approach 

of the lower court, applying the “reasonable expectation of privacy” test and concluding four weeks of continuous 

GPS monitoring constituted a search under that standard. Id. at 964.

6

Justice Sotomayer, in a separate concurrence, agreed with both decisions. Id. at 957.
10 ACM 38346 

The exclusionary rule is a prudential doctrine fashioned to “compel respect for the 

constitutional guaranty.” Davis v. United States, 564 U.S. 229, 236 (2011). It is not a 

personal constitutional right nor is it designed to redress an injury from an unconstitutional 

search. Stone v. Powell, 428 U.S. 465, 486 (1976). “The [exclusionary] rule’s sole purpose 

. . . is to deter future Fourth Amendment violations. Davis, 564 U.S. at 236–37. Thus, in 

the absence of “appreciable deterrence,” exclusion of evidence is “clearly . . .

unwarranted.” Id. at 237 (quoting United States v. Janis, 428 U.S. 433, 454 (1976)).

The exclusion of evidence “exacts a heavy toll on both the judicial system and 

society at large,” because “[i]t almost always requires courts to ignore reliable, trustworthy 

evidence.” Davis, 564 U.S. at 237. An “‘unbending application’” of the exclusionary rule 

“would impede unacceptably the truth-finding functions of judge and jury” and 

“‘[generate] disrespect for the law and administration of justice.’” United States v. Leon, 

468 U.S. 897, 907–08 (1984) (quoting Stone, 428 U.S. at 491) (alteration in original). 

Because of these competing interests, the exclusionary rule calls for a “balancing 

approach,” which requires weighing the deterrent effect of suppression against the costs of 

exclusion. Id. at 913–24. To warrant exclusion of evidence, the “deterrence benefits of 

suppression must outweigh its heavy costs.” Davis, 564 U.S. at 237; see also Stone, 428 

U.S. at 486–87. The cost of excluding evidence is often high and disproportionate to its 

deterrent effect “when law enforcement officers have acted in objective good faith or their 

transgressions have been minor.” Leon, 468 U.S. at 908. “The deterrent purpose of the 

exclusionary rule necessarily assumes that the police have engaged in willful, or at the very 

least negligent, conduct which has deprived the defendant of some right.” Id. at 919. 

Here, the military judge found the exclusionary rule should not apply for three 

reasons. First, he concluded the good faith exception to that rule applied because AFOSI 

acted in objectively reasonable reliance on binding judicial precedent. Second, he found 

the evidence would inevitably have been discovered through lawful means. Third, he 

concluded the nexus between the Government’s illegal conduct and the evidence was so 

weak that the taint of the illegality was dissipated. 

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

of discretion, viewing the evidence in the light most favorable to the party prevailing 

below. United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F. 2015). That means we 

review the military judge’s findings of fact for clear error but his conclusions of law de 

novo. Id. 

1. Good Faith Exception

Evidence obtained by way of a Fourth Amendment violation will not be excluded if 

“law enforcement officials reasonably believed in good faith that their conduct was in 

accordance with the law even if decisions subsequent to the search or seizure have held 

that conduct of the type engaged in by the law enforcement officials is not permitted by the 

Constitution.” United States v. Peltier, 422 U.S. 531, 538 (1975). This reflects the 
11 ACM 38346 

Supreme Court’s determination that the slight deterrent benefit of excluding evidence 

derived from searches that were proper when conducted but held to be invalid in light of 

later case law does not justify the injury to society when criminal acts go unpunished. 

Davis, 564 U.S. at 239. The “harsh sanction of exclusion” is triggered only when law 

enforcement actions “are deliberate enough to yield ‘meaningfu[l]’ deterrence, and 

culpable enough to be ‘worth the price paid by the justice system.’” Id. (quoting Herring 

v. United States, 555 U.S. 135, 144 (2009)) (alteration in original). The “rigorous 

weighing” of the cost-benefit analysis requires a focus on the “flagrancy of the police 

misconduct” at issue, and when law enforcement agents act “with an objectively reasonable 

good-faith belief that their conduct is lawful,” the deterrent value of suppression is 

diminished. Id. at 238 (citing United States v. Leon, 468 U.S. 897, 909, 919 (1984)). 

Suppression “cannot be expected, and should not be applied, to deter objectively 

reasonable law enforcement activity.” Leon, 468 U.S. at 919. 

In Davis, the Supreme Court extended this good faith exception to situations where 

law enforcement agents act in objectively reasonable reliance on binding judicial decisions 

affecting their conduct even though that conduct is subsequently deemed unconstitutional; 

in such circumstances, the agents’ culpability is wholly absent. Davis, 564 U.S. 229, 239–

40.

7

 To exclude evidence when law enforcement rely on binding judicial precedent would 

only deter conscientious police work. Id. at 241. Officers who act in “strict compliance 

with binding precedent” do not violate the defendant’s Fourth Amendment rights 

“deliberately, recklessly, or with gross negligence” and such a situation does not involve 

any “recurring or systematic negligence” by law enforcement warranting exclusion. Id. at 

240.

In the wake of Jones, federal circuit courts have regularly applied Davis to the 

question of how to handle law enforcement uses of GPS tracking devices that seemed 

lawful at the time but later proved to be Fourth Amendment violations based on the Jones

decision. In circuits where precedent had directly addressed the propriety of warrantless 

use of GPS devices prior to Jones, these post-Jones decisions universally held that such

use did not require application of the exclusionary rule since the investigators were acting 

in objectively reasonable reliance on that binding precedent. See, e.g., United States v. 

Andres, 703 F.3d 828, 835 (5th Cir. 2013); United States v. Pineda-Moreno, 688 F.3d 1087, 

1090 (9th Cir. 2012); United States v. Ransfer, 743 F.3d 766, 774 (11th Cir. 2014).

 

7

In Davis, officers searched the defendant’s car after arresting him and placing him in a police car. At the time of the 

officer’s search, the Supreme Court had not yet decided Arizona v. Gant, 556 U.S. 332 (2009), which held that the 

Fourth Amendment requires officers to demonstrate the arrestee posed a continuing threat to their safety or a need to 

preserve evidence related to the crime to justify a warrantless vehicular search incident to arrest. Id. 556 U.S. at 341–

48. Prior to Gant, the Court of Appeals for the Eleventh Circuit had interpreted the Supreme Court’s decision in New 

York v. Belton, 453 U.S. 454 (1981), as establishing a bright-line rule authorizing the search of a vehicle’s passenger 

compartment simply incident to a recent occupant’s arrest. The Supreme Court found the officers’ conduct in Davis

“was in strict compliance with then-binding Circuit law and was not culpable in any way,” but that the conduct was 

unconstitutional under Gant. Davis v. United States, 564 U.S. 229, 239–40 (2011). 
12 ACM 38346 

To date, neither the Court of Appeals for the Armed Forces nor any service court 

has issued any decisions regarding the government’s installation and subsequent 

monitoring of a GPS device. Similarly situated federal courts have, however, found the 

Supreme Court’s pre-Jones decisions in United States v. Knotts, 460 U.S. 276 (1983), and 

United States v. Karo, 468 U.S. 705 (1984), to constitute the binding appellate precedent 

upon which law enforcement could reasonably have relied. See, e.g., United States v. Baez, 

744 F.3d 30, 35 (1st Cir. 2014); United States v. Aguiar, 737 F.3d 251, 261 (2nd Cir. 2013), 

cert. denied, 135 S.Ct. 400 (2014); United States v. Katzin, 769 F.3d 163, 173–74 (3rd Cir. 

2014) (en banc); United States v. Stephens, 764 F.3d 327, 337 (4th Cir. 2014); United States 

v. Fisher, 745 F.3d 200, 204 (6th Cir. 2014), cert. denied, 135 S.Ct. 676 (2014); United 

States v. Brown, 744 F.3d 474, 477–78 (7th Cir. 2014); United States v. Robinson, 781 F.3d 

453, 459 (8th Cir. 2015), cert. denied, 136 S.Ct. 596; United States v. Hohn, 606 Fed. 

Appx. 902, 906 (10th Cir. 2015) (unpub. op.).8

We follow this approach here and find that, at the time the AFOSI agents employed 

the GPS device without first procuring a warrant or search authorization, they acted in 

objectively reasonable reliance on the holdings of these two Supreme Court decisions to 

provide authority for their actions.9 Those decisions considered whether the Fourth 

Amendment required a warrant for the government to monitor a suspect’s location using a 

government-installed radio transmitter (beeper), and utilized the reasonable expectation of 

 

8 FED. R. CRIM. P. 41 governs the issuance of a warrant in a federal criminal proceeding. The 2006 Advisory 

Committee’s Note to this rule cited United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 

705 (1984), for the proposition that, under the Katz test, warrantless GPS tracking is lawful except in areas reasonably 

considered private, stating, “Warrants may be required to monitor tracking devices when they are used to monitor 

persons or property in areas where there is a reasonable expectation of privacy.” Fed. R. Crim. P. 41(b) advisory 

committee’s note (2006) (citing Karo, 468 U.S. 705) (emphasis added). “[I]f the officers intend to install or use the 

device in a constitutionally protected area, they must obtain judicial approval to do so.” Id. It also stated, “If, on the 

other hand, the officers intend to install and use the device without implicating any Fourth Amendment rights, there 

is no need to obtain the warrant.” Id. (citing Knotts, 460 U.S. 276) (emphasis added).

9 When considering how constitutional rights apply to servicemembers, military appellate courts are bound by the 

precedent of the Supreme Court unless by text or scope they are plainly inapplicable. United States v. Marcum, 60 

M.J. 198, 205 (C.A.A.F. 2004). Our superior court has consistently applied the Bill of Rights to members of the 

Armed Forces except in cases where the express terms of the Constitution make such application inapposite. Id. “At 

the same time, these constitutional rights may apply differently to members of the armed forces than they do to 

civilians” given that the military is a specialized society. Id. When considering how the Fourth Amendment applies 

in the military context, we rely on Supreme Court precedent but we also specifically consider whether any contextual 

factors involving military life require a deviation from that precedent. Id. at 205–06 (citing United States v. McCarthy, 

38 M.J. 398 (C.M.A. 1993) (warrantless entry into military barracks room to effectuate apprehension did not violate 

Fourth Amendment)); see also United States v. Taylor, 41 M.J. 168, 170 (C.M.A. 1994) (noting that Military Rules 

of Evidence 311 through 317, “like the decisions of the Supreme Court, divide Fourth Amendment issues between 

coverage (that is, when the Fourth Amendment is applicable) and protections”).
13 ACM 38346 

privacy test first formulated in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., 

concurring),

10 and used by the concurring justices in Jones.11

 

In United States v. Knotts, 460 U.S. 276 (1983), the Court found the warrantless use 

of a tracking device to monitor the movements of a vehicle on public roads did not violate 

the Fourth Amendment.12 The Court explained that, under the Katz framework, the 

determination of whether a governmental intrusion constitutes a search under the Fourth 

Amendment “cannot turn upon the presence or absence of a physical intrusion into any 

given enclosure,” but instead depends on whether the intrusion invaded a suspect’s 

reasonable expectation of privacy. Id. at 280–81. Applying that framework, the Court 

concluded that the use of a beeper to track the location of a suspect’s car on public roads 

did not constitute a search under the Fourth Amendment because “[a] person traveling in 

an automobile on public thoroughfares has no reasonable expectation of privacy in his 

movements from one place to another.” Id. at 277, 281. “The fact that the officers . . . 

relied not only on visual surveillance, but on the use of the beeper . . . does not alter the 

situation” relative to the Fourth Amendment. Id. at 282; see also Mil. R. Evid. 311(a)

(Evidence obtained through an unreasonable search is inadmissible if “[t]he accused had a 

reasonable expectation of privacy in the . . . property searched . . . or the accused would 

otherwise have grounds to object . . . under the Constitution . . . as applied to members of 

the armed forces.”); Manual for Courts-Martial, United States, Analysis of the Military 

Rules of Evidence, A22-17 (2012 ed.) (Military “Rules [of Evidence] 311–317 express the 

manner in which the Fourth Amendment to the Constitution ... applies to trials by courtsmartial.”).

The following year, in United States v. Karo, 468 U.S. 705 (1984), the Supreme 

Court reaffirmed the privacy framework by discounting the importance of trespass in the 

placement of the beeper device, finding “[t]he existence of a physical trespass is only 

marginally relevant to the question of whether the Fourth Amendment has been violated 

. . . [as] an actual trespass is neither necessary nor sufficient to establish a constitutional 

violation.” Id. at 712–13. The Court then found a Fourth Amendment violation when the 

government used a beeper to monitor the location of a container by having it carried inside 

the defendant’s residence, as, unlike the situation in Knotts, the presence of the beeper 

 

10 In Katz, the Supreme Court held an electronic surveillance of the petitioner’s conversations while he was in a public 

telephone booth was impermissible, despite his lack of property interest in the location. Katz v. United States, 389 

U.S. 347, 359 (1967). This reversed prior precedent which interpreted the Fourth Amendment very narrowly in 

holding that only physical searches of “material things—the person, the house, his papers or his effects” were 

implicated by the Fourth Amendment. Olmstead v. United States, 277 U.S. 438, 464 (1928). In contrast, Katz held 

“the Fourth Amendment protects people, not places.” 389 U.S. at 351. In the Jones decision, the majority announced 

that the Katz privacy test added to, but did not replace, the prior common law trespass-based one. United States v. 

Jones, 132 S.Ct. 945, 952 (2012).

11 The majority decision in Jones did not overrule Knotts or Karo, noting that the expectation of privacy test used in 

those cases had “been added to, not substituted for, the common-law trespassory test.” Jones, 132 S.Ct. at 952.

12

 This case has been considered the “foundational Supreme Court precedent for GPS-related cases.” United States 

v. Cuevas-Perez, 640 F.3d 272, 273 (7th Cir. 2011).
14 ACM 38346 

inside a can of contraband “could not have been visually verified” by officers unless they 

entered the home. Id. at 715. 

Our superior court consistently applied the reasonable expectation of privacy 

approach to searches conducted by military investigators, as opposed to the principles of 

property law and trespass. See, e.g., United States v. Long, 64 M.J. 57, 70 (C.A.A.F. 2006)

(“[T]he Supreme Court’s expectation of privacy approach applies [and] the possibility of 

exposure to the public eye diminishes or alleviates one’s expectation of privacy . . . .”); 

United States v. Daniels, 60 M.J. 69, 71 (C.A.A.F. 2004) (noting “[t]he United States 

Supreme Court defines a Fourth Amendment ‘search’ as a government intrusion into an 

individual’s reasonable expectation of privacy” and analyzing the issue under that 

framework); United States v. Springer, 58 M.J. 164, 168 (C.A.A.F. 2003) (“What a person 

knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.”); 

United States v. Wisniewski, 21 M.J. 370, 372 (C.M.A. 1986) (holding barracks resident 

had no reasonable expectation of privacy from visual intrusions where the contents of his 

room could be plainly viewed from a public walkway). 

Although not ruling directly on the constitutionality of warrantless tracking 

technology for vehicles, our superior court has referenced the limited expectations of 

privacy in the movements of automobiles. In United States v. Baker, 30 M.J. 262, 267

(C.M.A. 1990), the court referenced Knotts for the proposition that “[t]here is no 

expectation of privacy in the movement of a car on a highway, so that the warrantless use 

of a beeper to trace the car does not violate the Fourth Amendment.” See also United States 

v. Hessler, 4 M.J. 303, 314–15 (C.M.A. 1978) (“One has a lesser expectation of privacy in 

a motor vehicle because its function is transportation and it seldom serves as one’s 

residence or as the repository of personal effects . . . . It travels public thoroughfares 

where both its occupants and its contents are in plain view.”) (quoting United States v. 

Chadwick, 433 U.S. 1, 12 (1977)) (alteration in original).

Thus, while no binding appellate precedent existed in the military appellate courts 

that definitively stated AFOSI’s actions were lawful, none was needed because the 

Supreme Court and our superior court had made clear that Fourth Amendment issues in the 

military are analyzed with regard to the accused’s reasonable expectation of privacy. This 

area of the law appeared settled prior to Jones. In light of this case law involving similar 

technology, it was reasonable for the AFOSI policy to not require a warrant or search 

authorization prior to the installation of a tracking device on a suspect’s vehicle while it 

was parked in a public place, and subsequent monitoring of the vehicle’s movements on 

public roads. The relevant Supreme Court and Court of Appeals for the Armed Forces case 

law at that time indicated no Fourth Amendment search occurred due to the suspect’s lack 

of a reasonable expectation of privacy in the areas accessed by the agents and in the 

locations of the car on public roads. AFOSI could reasonably conclude placing the GPS 

tracking device on Appellant’s vehicle did not violate the Fourth Amendment and thus did 

not require a warrant or search authorization. 
15 ACM 38346 

Appellant also argues that even if relevant appellate precedent supports the 

warrantless use of a GPS tracking device, the Government presented no evidence that 

agents working on Appellant’s case were actually aware of and relied on such precedent. 

Davis does not indicate such evidence is necessary, and neither do any of the post-Jones 

circuit cases applying Davis. See, e.g., United States v. Martin, 807 F.3d 842, 847 (7th Cir. 

2015); United States v. Stephens, 764 F.3d 327, 335 (4th Cir. 2014). “The Fourth 

Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of 

law—must be objectively reasonable. We do not examine the subjective understanding of 

the particular officer involved. “The Fourth Amendment tolerates only reasonable

mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. 

We do not examine the subjective understanding of the particular officer involved.” Heien 

v. North Carolina, 135 S. Ct. 530, 539 (2014). We, likewise, decline to impose a subjective

requirement. The agents’ subjective knowledge or awareness is irrelevant, unless their 

conduct is sufficiently culpable and deliberate to trigger the invocation of the exclusionary 

rule. Herring, 555 U.S. at 143–45. Evaluating Fourth Amendment issues based solely on 

subjective good faith would improperly leave its protections in the discretion of the police. 

Leon, 468 U.S. at 915 n.13. It would also invite “federal courts on an expedition into the 

minds of police officers,” a foray that “would produce a grave and fruitless misallocation 

of judicial resources.” Id. at 922 n.23 (quoting Massachusetts v. Painten, 389 U.S. 560 

565 (1968)). We thus seek to determine the “objectively ascertainable question” of 

“whether a reasonably well trained officer would have known that the search was illegal in 

light” of binding relevant precedent, as “[t]he pertinent analysis of deterrence and 

culpability is objective.” Herring, 555 U.S. at 145. Here, we find a reasonably well trained 

AFOSI agent in 2011 would have known that Supreme Court precedent permitted him to 

attach a GPS device to Appellant’s car in a public location and monitor its movements 

without seeking a warrant. It is objectively apparent that the AFOSI policy was developed 

in light of the then-current state of the law regarding whether monitoring the location of a 

vehicle on public roads involved a Fourth Amendment search. No evidence of actual 

knowledge of or reliance on specific cases is necessary. 

In sum, the agents in this case could reasonably have relied on the Supreme Court’s 

holdings in Knotts and Karo and our Superior Court’s expectation of privacy framework 

to conclude that their warrantless placement of the GPS device and their use of the device 

to monitor the movements of Appellant’s vehicle on public streets and highways did not 

violate the Fourth Amendment. Such a search, conducted in objectively reasonable 

reliance on binding appellate precedent, is not subject to the exclusionary rule. Thus, the 

military judge did not abuse his discretion in declining to suppress the contested evidence.

2. Inevitable Discovery

Even in the absence of the good faith exception, the evidence derived from the GPS 

device would have been admissible because it would have inevitably been discovered by 

law enforcement, even in the absence of the GPS data. 
16 ACM 38346 

Improperly obtained evidence is admissible if it inevitably would have been 

discovered through independent, lawful means. Nix v. Williams, 467 U.S. 431, 444 (1984); 

United States v. Wallace, 66 M.J. 5, 10 (C.A.A.F. 2008). Mil. R. Evid. 311(b)(2) covers 

this exception to the exclusionary rule and states “[e]vidence that was obtained as a result 

of an unlawful search or seizure may be used when the evidence would have been obtained 

even if such unlawful search or seizure had not been made.” The “[e]xclusion of physical 

evidence that would inevitably have been discovered adds nothing to either the integrity or 

fairness of a criminal trial.” Nix, 467 U.S. at 446. The purpose of this doctrine is to ensure 

the exclusionary rule does not “put the police in a worse position than they would have 

been in absent any error or violation.” Id. at 443.

For the inevitable discovery doctrine to apply, the prosecution must establish, by a 

preponderance of the evidence, that “when the illegality occurred, the government agents 

possessed, or were actively pursuing, evidence or leads that would have inevitably led to 

the discovery of the evidence and that the evidence would inevitably have been discovered 

in a lawful manner had not the illegality occurred.” United States v. Dease, 71 M.J. 116, 

122 (C.A.A.F. 2012) (quoting United States v. Kozak, 12 M.J. 389, 394 (C.M.A. 1982)). 

“‘[M]ere speculation and conjecture’ as to the inevitable discovery of the evidence is not 

sufficient when applying this exception.” Wicks, 73 M.J. at 103 (quoting United States v. 

Maxwell, 45 M.J. 406, 422 (C.A.A.F. 1996)) (alteration in original). The prosecution must 

prove, based on demonstrated historical facts, that the evidence would have been 

discovered even if the illegal search had not occurred, through an alternative means 

untainted by the illegality. Nix, 467 U.S. at 443 n.5. This exception is only applicable 

“[w]hen the routine procedures of a law enforcement agency would inevitably find the 

same evidence.” Wicks, 73 M.J. at 103 (quoting United States v. Owens, 51 M.J. 204, 204

(C.A.A.F. 1999)) (alteration in original). 

We review a military judge’s inevitable discovery rulings for an abuse of discretion. 

Dease, 71 M.J. at 121. In this context, our superior court has applied a distinctly deferential 

standard of review. “In order to find an abuse of discretion, we must find that the military 

judge committed a clear error in his conclusions.” Id. (citing United States v. Houser, 36 

M.J. 392, 397 (C.M.A. 1993)). 

Before the GPS was installed, AFOSI’s investigation had been focused on 

Appellant’s involvement with BBBS and his potentially inappropriate relationship with 

boys he met through that program. Agents had interviewed JP about his relationship with 

Appellant, which included sexual contact at Appellant’s residence and activities consistent 

with sexual offender grooming behavior. Agents had also found and interviewed several 

of Appellant’s former little brothers or their parents in multiple states and had learned 

Appellant often flew and drove his little brothers to meet him or spend overnights with him 

at various locations, including his home, and communicated with them over social media, 

email or text messaging. His 20-year relationship with the BBBS had recently been 

terminated by the organization due to his repeated violations of the BBBS visitation 
17 ACM 38346 

policies with his latest little brother, including taking the child for the Christmas 2010 

holidays without permission. Appellant’s response to being terminated was to ask if he 

was being “accused of something.” After the termination, Appellant continued contact 

with that child through social media. 

According to the testimony of an AFOSI agent during the litigation of this motion, 

agents had also engaged in an unspecified amount of physical surveillance of Appellant, 

beginning in June or July 2011. They also found a pamphlet from a local high school band 

in his trash around this same timeframe. Agents had also conducted checks with several 

dozen youth organizations in Florida and learned Appellant had never been a volunteer 

with their programs. Appellant’s neighbors were also interviewed (including a boy who 

Appellant assisted with baseball), but they had no information about the matters being 

investigated. 

The military judge reached certain conclusions in ruling on the Defense motion. He 

found AFOSI considered this case of alleged sexual molestation by a field grade officer to 

be very serious, and the agents were committed to monitoring Appellant’s activities, 

whereabouts, and patterns. Before placing the GPS tracker, AFOSI possessed information 

suggesting Appellant had a long term and ongoing history of inappropriate relations with 

underage males, which included meeting them at his civilian and military residences. 

AFOSI was aggressively seeking to discover whether Appellant had any contacts with male 

youth in and around the base. Based on this, the military judge concluded the Government 

would inevitably have discovered the association between Appellant and AP since the two 

were meeting on a regular basis and engaging in sexual encounters at Appellant’s on-base 

residence during the active investigation. AP’s girlfriend and others had noticed and began 

to ask AP about their relationship. The military judge concluded that the fact that Appellant 

was picking AP up after school, dropping him off at his home, meeting him at the base 

visitor center, and obtaining visitor passes to bring him onto base could hardly have 

escaped AFOSI’s attention for long. He was certain that, under these circumstances, 

investigators would eventually have discovered an association between Appellant and AP 

and would have questioned AP about that relationship, thus AP’s statement to law 

enforcement was admissible. 

We find the military judge did not abuse his discretion in finding that law 

enforcement would inevitably have discovered an association between Appellant and AP 

and would have questioned AP about it. The Government met its burden of demonstrating 

it was more likely than not that, as of the day the GPS was installed, the agents were 

actively pursuing leads that would have inevitably led them to discover AP. As of that 

time, AFOSI knew a former little brother had made serious sexual abuse allegations against 

Appellant and that Appellant had recently been terminated from his long-term involvement 

with the BBBS program based on his recent efforts to engage in unauthorized visits with 

his little brother. The investigation had also revealed that, within the past six months, 

Appellant had brought former little brothers from other states in order to spend the holidays 
18 ACM 38346 

with him in Florida. Agents also were actively pursuing leads to determine whether 

Appellant had any contacts with other boys in the local area. Indicia of an interaction with 

a high school band was found in Appellant’ trash (AP was a member of that band). Agents 

were aware Appellant had a history of meeting boys at his residence (including his most 

recent little brother), and the agents had engaged in some physical surveillance of that 

residence. We also note that the government was already in possession of the visitor’s 

center sign-in sheets, as they were maintained at the Tyndall AFB visitor’s center. 

In light of this evidence and these leads, it is more likely than not that the existence 

of AP would inevitably have been discovered by AFOSI through its ongoing investigation 

and surveillance efforts, given that Appellant was bringing AP onto base on a regular basis, 

often after signing him onto base through the visitor center. The military judge did not 

abuse his discretion in declining to suppress the evidence.

3. Attenuation 

Under the fruit of the poisonous tree doctrine, the exclusionary rule prohibits the 

introduction of derivative evidence, both tangible and testimonial, that is the product of the

direct evidence found in the search or that has been acquired from it, “up to the point at 

which the connection with the unlawful search becomes ‘so attenuated as to dissipate the 

taint.’” Murray v. United States, 487 U.S. 533, 537 (1988) (quoting Nardone v. United 

States, 308 U.S. 338, 341 (1939)). Attenuation can occur “when the causal connection 

[between the search and the evidence] is remote. Attenuation also occurs when, even given 

a direct causal connection, the interest protected by the constitutional guarantee that has 

been violated would not be served by suppression of the evidence obtained.” Hudson v. 

Michigan, 547 U.S. 586, 593 (2006) (citation omitted). The attenuation doctrine applies 

to a witness’s testimony at trial where the identity of the witness was discovered during an 

unlawful search. United States v. Ceccolini, 435 U.S. 268, 280 (1978). Such testimony 

may be admitted even when the witness’s identity was discovered through an

unconstitutional search. Leon 468 U.S. at 910 (citing Ceccolini, 435 U.S. 268). “[S]ince 

the cost of excluding live-witness testimony often will be greater, a closer, more direct link 

between the illegality and that kind of testimony is required.” Ceccolini, 435 U.S. at 278. 

There is no bright line rule to determine whether derivative evidence is sufficiently 

attenuated to be admissible. United States v. Mapes, 59 M.J. 60, 78 (C.A.A.F. 2003). 

Instead, we examine several factors in determining whether to exclude evidence of livewitness testimony derived from illegal police activity. United States v. Jones, 64 M.J. 596, 

603 (Army Ct. Crim. App. 1997).13 First, we consider the degree of free will exercised by 

the witness because “[t]he greater the willingness of the witness to freely testify, the greater 

the likelihood that he . . . will be discovered by legal means and, concomitantly, the smaller 

 

13 At trial, the military judge applied the factors set forth in United States v. Conklin, 63 M.J. 333, 338–39 (C.A.A.F. 

2006), a case evaluating whether an accused’s consent to a subsequent search dissipated the taint of an earlier illegal 

search. The Conklin factors are related to, but not identical to, those used in evaluating the admissibility of live witness 

testimony.
19 ACM 38346 

the incentive to conduct an illegal search to discover the witness.” Id. (quoting Ceccolini, 

435 U.S. at 276) (alteration in original). Second, we consider the time lapse “between the 

time of the illegal search and the initial contact with the witness, on the one hand, and 

between the latter and the testimony at trial on the other.” Id. (quoting Ceccolini, 435 U.S. 

at 279). Third, we consider the role of the original illegal law enforcement activity in 

procuring the witness’s testimony, the law enforcement’s purpose, and the flagrancy of that 

conduct. Id. (citing Ceccolini, 435 U.S. at 279). Lastly, we conduct a cost-benefit analysis 

by comparing the cost of exclusion on the “evenhanded system of law enforcement” with 

the beneficial deterrent effect of exclusion. Id. (quoting Ceccolini, 435 U.S. at 280).

Here, we determine by a preponderance of the evidence that the Government met 

its burden. We find AP exercised his free will while making his initial statements, his 

partially recanting, and testifying at the court-martial. AP’s testimony and earlier 

statements were the product of his voluntary acts and were not coerced or induced by 

official authority, and thus constitute an independent source. See Ceccolini, 435 U.S. at 

279; United States v. Fogg, 52 M.J. 144, 151 (C.A.A.F. 1999) (“Certainly, there is an 

independent source in the testimony of the victims which, in this case, was the product of 

their voluntary acts.”). As to the temporal proximity, the time lapse between the illegal use 

of the GPS device and the initial contact with AP was approximately 26 days, and AP 

testified at trial over a year later.14 This factor, therefore, also favors the Government. The 

third factor is directed at police misconduct and whether such conduct has been employed 

to exploit the illegality. United States v. Khamsouk, 57 M.J. 282, 292 (C.A.A.F. 2002). As 

discussed above, we found the AFOSI acted in good faith when they gathered GPS data 

without a warrant or search authorization, and this factor favors the Government. 

Similarly, due to the lack of intentionally unlawful behavior by AFOSI, excluding the 

evidence would have a minimal deterrent effect, while the cost of excluding the contested 

evidence would be high. Furthermore, the information in the log-in sheets was already 

possessed by the government at Tyndall AFB’s visitor’s center. Given this, we find the 

evidence procured from AP and the search of Appellant’s house is sufficiently attenuated 

to be admissible and we find the military judge did not abuse his discretion by denying the 

defense request to exclude that evidence. 

Thus, the military judge did not abuse his discretion in declining to suppress the 

contested evidence.

B. Breadth of Search Authorization for Appellant’s Hard Drives

After visitor center records revealed Appellant was signing AP onto base at odd 

hours, AFOSI contacted the Bay County Sherriff’s Office (BCSO) for assistance. BCSO 

detectives subsequently interviewed AP, who told them he had engaged in a sexual 

 

14 AP testified at trial over a year later but did not testify regarding the sexual contact he had with Appellant, as 

Appellant was not charged for that activity. Instead, AP testified about his non-sexual contact with Appellant after 

the issuance of the no-contact order.
20 ACM 38346 

relationship with Appellant. In addition, he indicated that he had communicated through 

electronic means with Appellant as that relationship developed, although he offered no 

specifics about the nature or extent of this communication.

Soon after the interview with AP, AFOSI contacted a judge advocate for legal 

advice concerning searches and seizures of Appellant’s electronic media devices from his 

on-base residence.15 After being advised that sufficient probable cause existed to examine 

those devices, AFOSI contacted a military magistrate and received verbal authorization to 

search them. Testimony from AFOSI agents at trial makes clear they were seeking 

authorization to “search” the devices, not just seize them. In addition, the affidavit 

accompanying the written search authorization requests permission to “search for and 

collect” the pertinent electronic media devices. 

However, when this authorization was memorialized in writing the next day, the 

search authorization form did not specifically state that a search of the devices was being 

authorized. Instead, that form contains one line to list the “premises” to be searched, then 

contains more space to list the property subject to “seizure.” It appears that this ambiguity 

in the form is what led AFOSI to list the electronic media as property to be “seized” while 

broadly listing the residence as subject to search. The form authorizes a search of 

Appellant’s home, and seizure of the electronic media devices. Based on this, Appellant 

argues that AFOSI did not have authorization to search the electronic media devices after 

they were seized. We disagree.

Based on the facts above, we are satisfied that the clear intent of AFOSI was to 

request permission to “search” the electronic media devices, rather than merely to “seize” 

them. We are similarly convinced that the military magistrate’s intent was the same. See 

United States v. Carpenter, ACM 38628 (A.F. Ct. Crim. App. 14 January 2016) (unpub. 

op.) (finding that although warrant only authorized seizure, intent of military magistrate 

was to authorize search of electronic devices, and at a minimum the good faith exception 

applied). The Fourth Amendment requires a warrant to particularly describe the “place to 

be searched, and the persons or things to be seized.” U.S. CONST. amend. IV. The search 

authorization in this case did exactly that: it described the particular address of the “place 

to be searched,” and it particularly described the “persons or things to be seized.” A search 

that is conducted pursuant to a search authorization is presumptively reasonable. United 

States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014). As discussed below, there are still 

restrictions on the scope of the authorization, but the authorization did cover the search of 

the media seized in the residence. The search authorization plainly intended to grant 

AFOSI permission to search the contents of the electronic media devices, and even if an 

error was committed in completing the form, at a minimum the good faith exception to the 

exclusionary rule applies. See United States v. Carter, 54 M.J. 414, 419 (C.A.A.F. 2001). 

 

15 At the time, AFOSI appears to have been acting in a supporting role to the Bay County Sherriff’s Office, which was 

investigating Appellant for the state offense of using a computer to entice a minor to engage in sexual acts. 
21 ACM 38346 

We therefore find the military judge did not abuse his discretion in declining to suppress 

the evidence on this basis.

C. Terms of Search Authorization and Scope of Search

The affidavit requesting search authorization for Appellant’s residence stated 

AFOSI was investigating “Florida Statute Section 847.0135 Computer Pornography; 

Traveling to meet a minor.” The AFOSI special agent who submitted the affidavit to the 

magistrate testified at trial that, at the time the affidavit was signed, AFOSI was solely 

focused on supporting BCSO in its investigation that Appellant used a computer to entice 

AP to engage in sexual acts. He testified AFOSI sought search authorization because they 

were investigating the crime of traveling to meet a minor, and that electronic media had 

been used to communicate with and entice the minor. The Florida state statute defines 

“traveling to meet a minor” as, inter alia, a person who travels within the state in order to 

engage in an illegal sexual act with a child under the age of 18 years after using a computer 

online or Internet service to seduce, solicit, lure or entice the child to do so. FLA. STAT. § 

847.0135(3) (2010). Thus, when AFOSI sought the search authorization, it was looking 

for evidence that Appellant used any device capable of electronic data storage or 

transmission in order to seduce, solicit, lure, or entice AP to engage in an illegal sexual act 

with him. AFOSI was not necessarily looking for evidence that Appellant possessed any 

child pornography, and the record reveals no indication that he was suspected of such an 

offense at that time.

The military magistrate granted AFOSI’s request for authorization to conduct a 

search of Appellant’s residence to obtain “[a]ll electronic media and power cords for 

devices capable of transmitting or storing online communications.” AFOSI’s search of the 

residence resulted in the seizure of standalone computer hard drives, phones, thumb drives, 

floppy diskettes, and camera memory cards.

AFOSI then sent these items to a forensic laboratory which was tasked with 

searching them “for all video, images and possible online communications.” The request 

expressly sought “any and all information saved or maintained on [Appellant’s] cellular 

telephones, laptop computers or hard drives; all associated SIM cards, components, 

peripherals or other data, relating to the matter being investigated.” 

Based on this request, the laboratory prepared a forensic data extraction (FDE) of 

the applicable devices and returned the FDE to AFOSI for its review. An AFOSI agent 

plugged the FDE into a stand-alone laptop and reviewed the files contained in it. The FDE 

was organized by file type such as pictures, chat messages, and so forth, with sub-folders 

included within each main folder. The agent testified that he first searched through the 

“pictures” folder, because that was the folder at the top of the screen, finding several 

pictures of AP, videos of AP’s band concerts, and a screenshot of a Skype session between 

Appellant and AP. Then, in one of the sub-folders, the agent discovered what appeared to 
22 ACM 38346 

be child pornography. He stopped his review of the FDE until he obtained another search 

authorization to look for further evidence involving child pornography. 

At trial and on appeal, Appellant asserts that the search authorization was 

unconstitutional because it was overbroad in defining what could be seized. Appellant 

contends the Government only had information that Appellant had engaged in “online 

communications” with AP. Instead of using vague terms such as “electronic media,” he 

asserts the search authorization should have more particularly described types of 

electronics that could be used for such communications, such as laptop computers, smart 

phones, or gaming systems. Appellant also asserts that the manner in which AFOSI 

conducted the search and seizure reinforced the overbroad nature of the search 

authorization, as AFOSI indiscriminately seized multiple types of electronics that could 

not reasonably be expected to store such online communications. In a related aspect of this 

assignment of error, Appellant avers that even if the search authorization was not 

overbroad, AFOSI exceeded its scope by asking the forensic laboratory to search for videos 

and images, and then by first looking through the “pictures” folder rather than “chats,” 

“internet history,” or another folder that might more reasonably be expected to contain any 

evidence relevant to the online communications crime being investigated. 

We first address Appellant’s claim that the search authorization was 

unconstitutionally overbroad. In denying the defense’s suppression motion, the military 

judge noted that AFOSI relayed the following information to the magistrate: Appellant 

had met AP online, he had engaged in sexually explicit conversations with AP for about a 

year, he had then involved AP in a sexual relationship, and Appellant had used his 

computer to entice AP onto Tyndall AFB. The military judge ruled that these details 

provided a substantial basis to search for the requested items, and the search authorization 

was not overbroad because it contained enough particularity to sufficiently guide and 

control the agents’ judgment in selecting what to seize. See,. United States v. Hoffman, 75 

M.J. 120, 128 (C.A.A.F. 2016) (the good-faith exception requires the individual issuing 

the authorization have a substantial basis for determining the existence of probable cause)

We agree with the military judge’s analysis.

The Fourth Amendment’s requirement that a warrant particularly describe the scope 

of a search warrant prevents the government from engaging in “a general, exploratory 

rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 

(1971). The specific description of things to be seized and the place to be searched 

“eliminates the danger of unlimited discretion in the executing officer’s determination of 

what is subject to seizure.” United States v. Greene, 250 F.3d 471, 476–77 (6th Cir. 2001) 

(quoting United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991)). To meet this 

requirement, a “warrant must enable the executing officer to ascertain and identify with 

reasonable certainty those items that the magistrate has authorized him to seize.” United 

States v. George, 975 F.2d 72, 75 (2d Cir. 1992). Mil. R. Evid. 315(b)(1) echoes the Fourth 

Amendment’s particularity requirement. We review de novo whether the search 
23 ACM 38346 

authorization was overly broad, resulting in a general search prohibited by the Fourth 

Amendment. United States v. Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996).

In an early case evaluating the specificity of warrants relative to electronic

transmissions and communications, our superior court held that a federal warrant 

authorizing a search of the accused’s Internet service provider’s computer bank was not 

overly broad. United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996). In Maxwell, the 

court held that a warrant complied with the Fourth Amendment’s particularity requirement 

even though it: (1) included names of those merely receiving obscenity and unknowingly 

receiving child pornography, as opposed to only those transmitting obscenity and

knowingly receiving child pornography (the only illegal acts); and (2) lacked an 

identifiable “e-mail chain” to conclusively link the copies of the pornographic computer 

files presented to the magistrate with the separate typed list of user names provided as an 

attachment to the warrant application. Id. at 420. The court noted that the search 

authorization was drawn as narrowly as possible without conducting an “advance search”

of recipients’ mailboxes in order to weed out those who might have unknowingly received 

the illegal materials. Id. The court declined “to establish a more substantial burden . . . to 

impose unreasonably restrictive requirements for preparation of a search warrant.” Id. at 

421.

Our superior court’s holding generally comports with precedent developed in the 

federal civilian courts in the area of particularity. The Tenth Circuit has taken an active 

role in this area. On the one hand, “[t]he modern development of the personal computer 

and its ability to store and intermingle a huge array of one’s personal papers in a single 

place increases law enforcement’s ability to conduct a wide-ranging search into a person’s 

private affairs, and accordingly makes the particularity requirement that much more 

important.” United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). On the other 

hand, because computer evidence is easily mislabeled or disguised, “a computer search 

‘may be as extensive as reasonably required to locate the items described in the warrant.’” 

United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006) (quoting United States v. 

Wuagneux, 683 F.2d 1343, 1352 (11th Cir. 1982)). Therefore, “[i]t is unrealistic to expect 

a warrant to prospectively restrict the scope of a search by directory, filename or extension 

or to attempt to structure search methods—that process must remain dynamic.” United 

States v. Burgess, 576 F.3d 1078, 1093 (10th Cir. 2009). “In summary, it is folly for a 

search warrant to attempt to structure the mechanics of the search and a warrant imposing 

such limits would unduly restrict legitimate search objectives.” Id. at 1094.

The Tenth Circuit has not been alone in recognizing that search warrants for 

evidence residing on computer devices may necessarily require somewhat broad terms to 

ensure investigators may locate evidence of a crime. For example, in United States v. 

Upham, 168 F.3d 532, 535 (1st Cir. 1999), the court held a warrant that authorized the 

search and seizure of “[a]ny and all visual depictions, in any format or media, of minors 

engaging in sexually explicit conduct [as defined by the statute],” was not 
24 ACM 38346 

unconstitutionally overbroad. The court held that the search and seizure of all available 

disks was “about the narrowest definable search and seizure reasonably likely to obtain the 

images.” Id. Likewise, in United States v. Hall, 142 F.3d 988, 996–97 (7th Cir. 1998), the 

court held that a broad warrant allowing the search and seizure of many types of electronic 

media storage devices for child pornography or child erotica satisfied the particularity 

requirement. The court noted that the items listed in the warrant were qualified by phrases 

that emphasized that these items were related to child pornography. Id. In United States 

v. Richards, 659 F.3d 527 (6th Cir. 2011), the court upheld a broad warrant to search a 

computer server, noting that the degree of specificity required varies with circumstances 

of each case. The Sixth Circuit recognized:

[G]iven the unique problem encountered in computer searches, 

and the practical difficulties inherent in implementing 

universal search methodologies, the majority of federal courts 

have eschewed the use of a specific search protocol and, 

instead, have employed the Fourth Amendment’s bedrock 

principle of reasonableness on a case-by-case basis: “While 

officers must be clear as to what it is they are seeking on the 

computer and conduct the search in a way that avoids searching 

files of types not identified in the warrant, . . . a computer 

search may be as extensive as reasonably required to locate the 

items described in the warrant based on probable cause.”

Id. at 538 (quoting Burgess, 576 F.3d at 1092) (omission in original).

Likewise, courts have demonstrated a trend toward granting investigators latitude 

in the manner in which computer searches are conducted, while recognizing that there are 

limits to such authority. In 2008, this court found AFOSI exceeded the scope of a search 

authorization while investigating a sexual assault allegation. United States v. Osorio, 66 

M.J. 632 (A.F. Ct. Crim. App. 2008). A warrant granted AFOSI permission to search the 

computer and memory card for photos taken on the night of the alleged sexual assault. Id. 

at 634. However, an AFOSI agent preparing a mirror image of the hard drive opened 

thumbnail images of what appeared to be nude people and discovered child pornography. 

Id. at 635. This court found the search warrant was limited in scope and did not allow 

AFOSI to search the computer for photographs taken on dates other than the date of the 

alleged sexual assault. Id. at 636. Thus, we found that AFOSI exceeded the scope of this 

narrow warrant. Unlike Osorio, we conclude that the scope of the warrant was not 

exceeded in this case.

While computer technology involves greater dangers of invasion of privacy and 

overreaching, computer searches are fundamentally no different than other searches 

involving commingled documents. When commingled records are searched, “it is certain 

that some innocuous documents will be examined, at least cursorily, in order to determine 

whether they are, in fact, among those papers authorized to be seized.” Andersen v. 
25 ACM 38346 

Maryland, 427 U.S. 463, 482 n.111 (1976). In these types of searches, “responsible

officials, including judicial officials, must take care to assure that they are conducted in a 

manner that minimizes unwarranted intrusions upon privacy.” Id. Investigators must be 

allowed a “brief perusal of documents in plain view in order to determine whether probable 

cause exists for their seizure under the warrant.” United States v. Heldt, 668 F.2d 1238, 

1267 (D.C. Cir. 1981). Because computers and other electronic devices with internal 

digital storage have the capacity to store tremendous amounts of intermingled data, there 

may not be a practical substitute for briefly examining many, if not all, of the contents. 

United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009); United States v. Richards, 

659 F.3d 527, 539–40 (6th Cir. 2011).“The general touchstone of reasonableness which 

governs Fourth Amendment analysis . . . governs the method of execution of the warrant.” 

United States v. Ramirez, 523 U.S. 65, 71 (1998).

Based on these legal principles, we find no constitutional overbreadth concern with 

either the terms of the search authorization or the manner in which the search was carried 

out. As to the terms of the authorization, the military magistrate used the available

information to define the scope of the search authorization. At the time it sought the search 

authorization, AFOSI was primarily relying on AP’s statement that he and Appellant had 

engaged in protracted sexual communications online. AP was not specific as to whether 

those communications consisted of real-time videos, photographs being exchanged, emails, 

text messages, some other means of communication, or some combination of the above. 

All he told AFOSI was that the communication had begun about a year before the 

relationship turned sexual, and consisted of communication over a gaming system, 

Microsoft Service Network (MSN), and Skype. AP did not specifically say that he had 

shared pictures or videos with Appellant, but he did not exclude this possibility either.

We recognize that neither the affidavit nor the search authorization is a model of 

clarity. As noted in the sub-issue immediately above, the search authorization permits the 

seizure of all “electronic media and power cords for devices capable of transmitting or 

storing online communications.” The authorization does not further limit the search to any 

specific communications on those devices. However, the authorization also notes that 

AFOSI was investigating Appellant for allegedly violating a Florida statute. The Florida 

statute Appellant was suspected of violating broadly makes it a crime to use any “device 

capable of electronic data storage transmission” to entice a minor into engaging in an 

unlawful sexual act. The statute does not specify that any particular means of 

communication are necessary to constitute this offense. By specifically referring to this 

statute, and by mirroring the language of the Florida statute in defining the items to be 

seized, the magistrate was granting authorization to AFOSI to search the devices for any 

communications between Appellant and AP that would violate the state law. In addition, 

we may use AFOSI’s affidavit to help define the scope of the search authorization, as the 

search authorization used language identical to that in part of the affidavit and the affidavit 

accompanied the search authorization. See Groh v. Ramirez, 540 U.S. 551, 557–58 (2004). 

The affidavit further solidifies the position that AFOSI’s search was to be limited to 
26 ACM 38346 

evidence of communications that violated the state statute. The affidavit consistently 

referenced communications between Appellant and AP leading up to their sexual 

relationship, and referenced the Florida statute throughout. Under a constitutional standard 

of reasonableness, the search authorization provided AFOSI with sufficient guidance to 

determine the scope of its search and seizure. We therefore find that although the affidavit 

and search authorization could have been clearer, the search authorization was not 

constitutionally overbroad.16

Likewise, we find AFOSI did not exceed the scope of the search authorization. The 

agent who reviewed the FDE consistently testified that as he proceeded through computer 

files, his intent was to find evidence of communications between Appellant and AP. His 

choice to first search the “pictures” folder might not have been the most logical place to 

find this evidence (as AP had given no specific information indicating the two exchanged 

pictures), but it was not an unreasonable place to start, particularly when the agent testified 

that he started with the pictures folder because it was the first folder listed in the FDE. AP 

had told investigators that he had engaged in prolonged online communications with 

Appellant and that some of these communications were sexually explicit. Under these 

facts, it was reasonable to presume that images or videos were exchanged.17 In addition, 

the agent promptly ceased the search when he found images of child pornography, exactly 

the conduct courts have repeatedly cited in distinguishing from cases where the scope of 

the warrant was exceeded. Cf. United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), 

This case is also easily distinguishable from our decision in Osorio because the agent 

maintained his focus on the subject of the search warrant and promptly ceased the search 

when he discovered evidence of another crime. Cf. Osorio, 66 M.J. 632, 637 (A.F. Ct. 

Crim. App. 2008) (“Practitioners must generate specific warrants and search processes 

necessary to comply with that specificity and then, if they come across evidence of a 

different crime, stop their search and seek a new authorization.”)

We agree with the analysis of several federal circuit courts that investigators should not be 

limited in their searches for commingled computer files outside of the Fourth Amendment

standard of reasonableness. AFOSI’s search in this case—like the search authorization—

was not perfect, but it was in reasonable conformance with the search authorization. We,

therefore, hold that the military judge did not abuse his discretion in declining to suppress 

the child pornography images found during this search.18

 

16 Air Force Information Management Tool (IMT) 1176, Authority to Search and Seize, should be amended to resolve

these ambiguities. As currently drafted, the form contains a place for agents to list the premises or person to be 

searched, and the property to be seized. It does not further provide agents the opportunity to define how items seized 

from the premises or person are to be searched. It would be helpful to law enforcement agents, and better protect the 

privacy rights of individuals, to develop a form specifically tailored for the search and seizure of electronic evidence. 

17 While not germane to our analysis, it is worth noting that investigators did, in fact, find at least two images depicting 

Appellant and AP communicating online.

18 We note one additional matter on this sub-issue. The Air Force Office of Special Investigations’ request to the 

computer forensics laboratory asked the laboratory to “search” Appellant’s electronic devices “for all videos, images 

and possible online communication . . . relating to the matter being investigated.” The request did not specifically 

define the “matter being investigated,” though it did focus on communications between Appellant and AP. The record 
27 ACM 38346 

D. Validity of Search Authorization

Finally, Appellant contends that the search authorization was no longer valid by the 

time the search of the electronic devices was carried out because AFOSI failed to inform 

the military magistrate of a change in information that might affect his probable cause 

determination. After AP initially told local sheriffs that he and Appellant had engaged in 

a sexual relationship, AFOSI obtained the search authorization for Appellant’s residence 

and seized the electronic devices. Before AFOSI could search those devices, however, AP 

contacted the sheriffs and recanted, saying he had only engaged in a friendly relationship 

with Appellant that had not progressed to sexual conduct. He then repeated his recantation 

in an interview with AFOSI. In these follow-up interviews, AP affirmed that he had 

engaged in online communication and that he was sexually attracted to Appellant. He also 

admitted that he had contacted Appellant after his initial interview with sheriffs, though he 

claimed Appellant did not try to get him to recant his earlier statement. Appellant asserts 

that the search authorization was no longer valid by the time the devices were searched 

because AFOSI did not tell the military magistrate about AP’s later statements denying a 

sexual relationship with Appellant.

We review a military judge’s decision to find probable cause existed to support a 

search authorization for an abuse of discretion. United States v. Bethea, 61 M.J. 184, 187 

(C.A.A.F. 2005). “An abuse of discretion occurs if the military judge’s findings of fact are 

clearly erroneous or if the decision is influenced by an erroneous view of the law.” United 

States v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006). “In reviewing a ruling on a motion 

to suppress, we consider the evidence in the light most favorable to the prevailing party.” 

United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996).

The Fourth Amendment requires that “no Warrants shall issue, but upon probable 

cause.” A military magistrate issuing a search authorization must have a “substantial basis” 

for concluding that probable cause exists. United States v. Leedy, 65 M.J. 208, 213 

(C.A.A.F. 2007). Probable cause is a reasonable belief that the person, property, or 

evidence sought is located in the place to be searched. Mil. R. Evid. 315(f). Probable 

cause is evaluated by examining the “totality of the circumstances” to determine whether 

evidence is located at a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983); Leedy, 

65 M.J. at 212. It is a “fluid concept—turning on the assessment of probabilities in 

 

indicates the laboratory was only supposed to extract computer files responsive to the investigator’s request, although 

it is not altogether clear on this point. If the request to the laboratory only sought evidence of online communications 

between Appellant and AP, one might wonder why the forensic laboratory provided investigators with a forensic data 

extraction containing more than 10,000 images of child pornography. However, it appears as if a miscommunication 

might have been caused by the Florida statute Appellant was suspected of violating. The search authorization cited 

the Florida statute, which covers a wide array of misconduct related to computers and sexual acts, including child 

pornography. The title of the statute also contains the words “child pornography.” Therefore, we find it entirely 

reasonable to believe that when the laboratory received the search authorization, the laboratory believed investigators 

were seeking evidence that included child pornography, even though investigators were not actually seeking such 

evidence. Under these facts, we find investigators should have been more specific in their request to the laboratory, 

but investigators and the laboratory committed no wrongdoing. 
28 ACM 38346 

particular factual contexts—not readily, or even usefully, reduced to a neat set of legal 

rules.” Gates, 462 U.S. at 232.

In reviewing probable cause determinations, this court examines the information 

known to the magistrate at the time of his or her decision, and the manner in which the 

facts became known. Bethea, 61 M.J. at 187; Leedy, 65 M.J. at 214. If the defense makes 

a substantial preliminary showing that a government agent included a false statement 

knowingly and intentionally or with reckless disregard for the truth in the information 

presented to the magistrate, and if the allegedly false statement is necessary to the finding 

of probable cause, the defense upon request shall be entitled to a hearing. Mil. R. Evid. 

311(g)(2). However, if the material that is the subject of the alleged falsity or reckless 

disregard is set aside, and a sufficient showing of probable cause remains, no hearing is 

required and the search authorization or warrant remains valid. Franks v. Delaware, 438 

U.S. 154 171–72 (1978); United States v. Cowgill, 68 M.J. 388, 393 (C.A.A.F. 2010). 

“Even if a false statement or omission is included in an affidavit, the Fourth Amendment 

is not violated if the affidavit would still show probable cause after such falsehood or 

omission is redacted or corrected.” United States v. Gallo, 55 M.J. 418, 421 (C.A.A.F. 

2001) (quoting Technical Ordinance, Inc. v. United States, 244 F.3d 641, 647 (8th Cir. 

2001)). “Logically, . . . the same rationale extends to material omissions.” United States 

v. Mason, 59 M.J. 416, 422 (C.A.A.F. 2004). Therefore, for the defense to be entitled to 

relief due to matters not presented to the magistrate, “the defense must demonstrate that 

the omissions were both intentional or reckless, and that their hypothetical inclusion would 

have prevented a finding of probable cause.” Id. (citing United States v. Figueroa, 35 M.J. 

54, 56–57 (C.M.A. 1992)). 

We note that AP’s statements recanting his earlier claims of a sexual relationship 

with Appellant were made after the military magistrate granted search authorization. 

However, the electronic devices had only been seized—not searched—at the time AP 

recanted, and at a minimum, honest and thorough investigative work required that this 

information be presented to the magistrate. We, therefore, assume without deciding that 

AFOSI’s failure to bring this new information to the military magistrate constitutes either 

an intentional act or a reckless disregard for the truth. See United States v. Marin-Buitrago, 

734 F.2d 889, 894 (2d Cir. 1984) (“When a definite and material change has occurred in 

the facts underlying the magistrate’s determination of probable cause, it is the magistrate, 

not the executing officers, who must determine whether probable cause still exists. 

Therefore, the magistrate must be made aware of any material new or correcting 

information.”)

However, we hold that despite this omission, probable cause would have still existed 

had this matter been brought to the magistrate’s attention. AP’s recantations came only 

after AP contacted Appellant to inform him of his statements to investigators, and we find 

that his earlier, detailed statements about the nature of their sexual relationship would have 
29 ACM 38346 

convinced a military magistrate far more than his later, suspicious recantation.19 Also, AP 

did not specifically recant his claims that he and Appellant had engaged in sexuallyoriented communications online. The Florida statute Appellant was suspected of violating 

criminalizes use of electronic means to “seduce, solicit, lure, or entice” a child to engage 

in unlawful sexual conduct. It is not necessary for sex to actually result from the 

communication in order for a crime to be completed. Therefore, the military magistrate 

would certainly have maintained his earlier grant of search authorization even if he had 

been informed of AP’s later statements.

We have also reviewed Appellant’s Grostefon submissions on this issue (Issue 

XXIX), which largely build on the arguments of counsel concerning this sub-issue. 

Appellant generally asserts that the information provided to the magistrate failed to 

demonstrate that any recent communications with AP were stored on Appellant’s computer 

media, or that any media containing such communications would be in his Tyndall AFB 

home as opposed to some other location.20 We find Appellant’s Grostefon submission on 

this issue does not change our position outlined above. The military magistrate was 

provided with a sufficient basis to believe that electronic evidence existed on Appellant’s 

computer media in his Tyndall AFB home.

E. Conclusion: Search and Seizure Issues

We have considered the voluminous filings submitted both at trial and on appeal 

concerning the various Fourth Amendment issues raised in this case. We have also 

specifically considered Appellant’s Grostefon submissions concerning several aspects of 

the November 2011 searches and seizures (Issue XXXI). The Grostefon submissions 

generally cover the same alleged errors as presented in appellate defense counsel’s 

assignment of errors but raise different variations and arguments concerning these matters. 

The Grostefon submissions generally allege the search authorization did not particularly 

describe the places to be searched and the items to be seized. Having considered the totality 

of the filings concerning the searches and seizures, including Appellant’s Grostefon

submissions, we find Appellant is not entitled to relief on any aspect of this issue and see 

no need to specifically comment on Appellant’s Grostefon submissions regarding this 

matter. See Matias, 25 M.J. at 363. 

The actions of AFOSI were not perfect. Ideally, AFOSI should have: (1) more 

specifically listed in the search authorization application what aspects of Appellant’s 

electronic devices it wanted to search and what types of evidence it expected to find on 

these devices; (2) specified in the affidavit accompanying the search authorization that it 

was seeking evidence of videos and images, not just text-based communications, and why 

it believed this evidence was present; (3) better defined what types of evidence the forensics 

 

19 Appellant successfully moved this court to attach a video recording of AP’s recantation interview with Air Force 

investigators to the record. The recording demonstrates AP’s denials in the later interview lack credibility.

20 Appellant’s argument is based in part on his assertion that he was not stationed at Tyndall Air Force Base until 

August 2010, leading to the possibility that the communications could have occurred before his arrival in Florida.
30 ACM 38346 

laboratory was expected to provide on the FDEs; (4) outlined a clear search methodology 

for searching the FDEs, starting in folders where evidence of the crime being investigated 

was most likely to be found; and (5) informed the military magistrate of AP’s recantations 

concerning the sexual relationship. However, model investigative practice is not the Fourth 

Amendment standard. Instead, the standard is reasonableness. Despite these 

shortcomings, AFOSI presented the military magistrate with evidence demonstrating 

probable cause that Appellant had used his electronic devices to communicate with AP in 

an attempt to develop a sexual relationship with the child. The search authorization and 

the accompanying affidavit listed a specific state statute Appellant was suspected of 

violating, and the search and seizure language attempted to use language that modeled the 

state statute. AFOSI’s search of the devices remained focused on finding evidence of that 

crime. When the investigator came across evidence of Appellant’s possession of child 

pornography, he promptly stopped the search and obtained a new search authorization. We 

find the totality of AFOSI’s actions in this case either fall within the confines of 

reasonableness or are of such a nature that exclusion of the evidence would not 

meaningfully deter any potential police misconduct, and the military judge did not abuse 

his discretion in declining to suppress any evidence gathered as a result of the searches and 

seizures in this case.

III. Issue II: Ineffective Assistance of Counsel Allegation—

Disclosure of Confidential Information

Appellant was placed in pretrial confinement on 12 March 2012 after he violated a 

no-contact order with AP. Captain (Capt) CH was Appellant’s assigned area defense 

counsel during this time. Capt CH’s representation included helping Appellant get his nocontact order modified and representing Appellant during the pretrial confinement hearing.

While Appellant remained in pretrial confinement, AFOSI received additional 

authorization to search Appellant’s house. That search, conducted on 2 April 2012, 

resulted in the seizure of a password-protected external hard drive. The laboratory 

conducting the forensic examination of the hard drive subsequently informed AFOSI it 

may take weeks or months to crack the password and examine the hard drive, if the hard 

drive could be accessed at all.

During the initial briefing of this case and relying solely on information in the 

AFOSI report, Appellant alleged that on or about 18 May 2012, Capt CH met with Capt 

MT (assistant trial counsel) concerning the case. During this meeting, Capt CH allegedly 

told Capt MT that, shortly after Appellant was placed in pretrial confinement, Appellant

had asked a friend, Mr. PK, to remove items from the house. This led Capt MT to call Mr. 

PK and learn that Mr. PK had recently removed a number of items from Appellant’s home 

and taken them to Appellant’s mother’s house in New Jersey. AFOSI agents used this 

information to obtain a search warrant for Appellant’s mother’s home. The search located

a paper with handwritten account information on it, including passwords. The computer 

forensics laboratory was able to use this password information to access the hard drive. 
31 ACM 38346 

The hard drive contained images of child pornography that formed the basis of a 

specification of which Appellant was convicted.

In sum, Appellant alleged Capt CH violated the duty of confidentiality and the duty 

of loyalty under Air Force Rule of Professional Conduct 1.6 by disclosing information Capt 

CH gained from Appellant which then led to the discovery of evidence adverse to 

Appellant. Appellant asserts that Capt CH learned about Mr. PK’s activities in Appellant’s 

house through his representation of Appellant, and, by disclosing this information to trial 

counsel without Appellant’s consent and leading the Government to discover evidence 

adverse to Appellant, Capt CH’s representation fell measurably below the performance 

ordinarily expected of fallible lawyers. United States v. Polk, 32 M.J. 150, 153 (C.M.A. 

1991).

Following an order from this court, the government submitted declarations 

concerning this issue from Capt MT and Capt CH. In response to these declarations, 

Appellant then submitted his own declaration. 

After reviewing the declarations, the record of trial, and the parties’ briefs, and after 

hearing oral argument, we determined we could not resolve this assignment of error 

without ordering a post-trial hearing pursuant to United States v. DuBay, 37 C.M.R. 411, 

413 (C.M.A. 1967). A military judge conducted the hearing, thoroughly covering the 

specific questions we ordered to be addressed. The military judge issued the following 

findings of fact:

In 2011, Appellant and Capt CH entered into an attorney-client relationship 

concerning a no-contact order. The attorney-client relationship continued until Capt CH 

separated from the Air Force in the summer of 2012. 

On 12 March 2012, Appellant was placed in pre-trial confinement. That same day, 

AFOSI agents searched Appellant’s on-base home pursuant to a search authority. The next 

day, Capt CH met with his client at the confinement facility. Appellant asked Capt CH to 

contact Mr. PK in order to move Appellant’s dog, car, and some other personal items to 

the home of Appellant’s mother in New Jersey. Capt CH represented Appellant at the 

pretrial confinement hearing on 14 March 2012 and confinement was continued. 

Shortly thereafter, Capt CH contacted Mr. PK about Appellant’s request. Mr. PK 

and Appellant spoke on the telephone in the presence of Capt CH about the plan for Mr. 

PK to fly to Florida and then drive Appellant’s car with the dog to his mother’s home in 

New Jersey. 

On 17 March 2012, Mr. PK arrived in Florida. Capt CH met Mr. PK off-base and 

provided him with Appellant’s keys to his car and residence. Capt CH also arranged for 

Mr. PK to meet with Appellant in the confinement facility the next day. At the meeting, 
32 ACM 38346 

Appellant provided Mr. PK with a list of items he wanted moved to his mother’s home and 

their location in the house. Appellant did not ask Mr. PK to keep this meeting confidential 

or secret; Capt CH had arranged the meeting but was not present. Subsequently, Mr. PK 

went to Appellant’s home, found most of the listed items and placed them and the dog in 

the car which he then drove to Appellant’s mother’s home. 

On 2 April 2012, AFOSI agents again searched Appellant’s home. Afterwards, they 

informed Capt MT that it appeared that someone had removed items from Appellant’s 

home since AFOSI last searched it. Capt MT spoke to Capt CH about this issue. Surprised 

this was an issue, Capt CH told Capt MT there was nothing to worry about as a friend of 

Appellant had come to Florida to retrieve the dog, car, and some other items. Capt CH 

provided Capt MT with Mr. PK’s name and phone number. Capt MT contacted Mr. PK, 

who confirmed he removed some items from Appellant’s home and moved them to the 

home of Appellant’s mother in New Jersey. 

Using the information from Mr. PK, AFOSI agents prepared an affidavit in support 

of a search warrant for the New Jersey house. After the warrant was issued, a search of the 

home resulted in the seizure of a list of Appellant’s various account information and 

passwords. This list was used to gain access to the contents of the password-protected hard 

drive previously seized from Appellant’s home. Although law enforcement had been 

actively seeking ways to bypass the password protection, it is not clear that those efforts 

would have been successful. The information found on the hard drive is the evidence used 

at trial to support the charge of possession of child pornography. 

We adopt these findings of fact as our own as they are supported by the record and 

are not clearly erroneous. See United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007). 

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); United States v. Gutierrez, 66 M.J. 329, 330–31 (C.A.A.F. 2008). To 

establish ineffective assistance of counsel, “an 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). The 

question is therefore whether “the level of advocacy falls measurably below the 

performance ordinarily expected of fallible lawyers.” United States v. Haney, 64 M.J. 101, 

106 (C.A.A.F. 2006) (citing United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) 

(brackets and ellipsis omitted). 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) 
33 ACM 38346 

(quoting Strickland, 466 at 687). Actions by an attorney “that contravene the canons of 

legal ethics, do not necessarily demonstrate prejudice under the second prong of 

Strickland.” United States v. Saintaude, 61 M.J. 175, 180 (C.A.A.F. 2005). Counsel is 

presumed competent until proven otherwise. United States v. Anderson, 55 M.J. 198, 201 

(C.A.A.F. 2001). 

Confidential disclosures by a client to an attorney made 

in order to obtain legal assistance are privileged. The purpose 

of the privilege is to encourage clients to make full disclosure 

to their attorneys. As a practical matter, if the client knows that 

damaging information could more readily be obtained from the 

attorney following disclosure than from himself in the absence 

of disclosure, the client would be reluctant to confide in his 

lawyer and it would be difficult to obtain fully informed legal 

advice. However, since the privilege has the effect of 

withholding relevant information from the factfinder, it applies 

only where necessary to achieve its purpose. Accordingly it 

protects only those disclosures—necessary to obtain informed 

legal advice—which might not have been made absent the 

privilege.

Fisher v. United States, 425 U.S. 391, 403 (1976) (citations omitted).

“The loyalty of defense counsel to his client—before, during, and after trial—is a 

cornerstone of military justice.” United States v. Schreck, 10 M.J. 226, 228 (C.M.A. 1981). 

Air Force Rule of Professional Conduct 1.6 states that a lawyer “shall not reveal 

information relating to representation of a client unless the client consents after 

consultation, except for disclosures that are implicitly authorized in order to carry out the 

representation, and except as stated in paragraph (b).” Paragraph (b) sets forth certain 

exceptions to that general rule, including where disclosure is reasonably believed necessary 

“to prevent the client from committing a criminal act that the lawyer believes is likely to 

result in imminent death or substantial bodily harm, or substantial impairment of national 

security or the readiness or capability of a military unit, vessel, aircraft, or weapons 

system.”

Military cases involving defense counsel disclosing evidence to the government are 

rare.

In United States v. Province, 45 M.J. 359 (C.A.A.F. 1996), the appellant failed to 

return from liberty for a time before surrendering himself. When he surrendered himself, 

authorities issued him “straggler’s orders” that directed him to report to his original 

command at Marine Corps Base Quantico. Id. at 360. Province acknowledged these orders 

but failed to present himself at Quantico. Id. He was originally charged with one 
34 ACM 38346 

specification of unauthorized absence covering the entire period. Id. However, trial 

defense counsel then turned over a copy of the straggler’s orders Province had given to him 

to trial counsel in pretrial negotiations, anticipating that this issue would come out during 

the providence inquiry and might complicate the plea. Id. He also hoped Province’s earlier 

voluntary return might serve as mitigation. Id. Trial counsel used this to have a second 

specification of unauthorized absence referred, splitting the entire period into two 

segments. Id. at 360–61.

On appeal, our superior court examined three issues relating to the disclosure of the 

straggler’s orders: (1) whether disclosure of the orders violated Rule 1.6 of the American 

Bar Association Model Rules of Professional Conduct; (2) whether disclosure of the 

document was required by Rule 3.4 of the Model Rules, which prevents a party from 

denying or blocking another party’s access to evidence and material having potential 

evidentiary value; and (3) whether trial defense counsel’s disclosure of the document 

amounted to ineffective assistance of counsel. Id. at 361–63. The court held that disclosure 

of the orders did not violate Rule 1.6 because the disclosure was made to further effective 

representation. Id. at 362. The second question, the court held, was “a difficult one” 

because it was not clear whether the straggler’s orders were already accessible to the 

government (and thus not covered by Rule 3.4) or whether trial defense counsel would 

have been “concealing” evidence by not disclosing his possession of the orders. Id. The 

court held that the government had an equal opportunity to possess a copy of the orders, 

and therefore there was no obligation for trial defense counsel to turn them over. The court 

noted this was a “close call, and each case depends upon its unique circumstances.” Id. at 

363. Finally, the court held trial defense counsel was not ineffective because the client 

achieved a favorable result at trial. Id.

In another case, United States v. Ankeny, 28 M.J. 780 (N.M.C.M.R. 1989), aff’d, 30 

M.J. 10 (C.M.A. 1990), the appellant told his defense attorney that he had unsuccessfully 

attempted to get the officer in charge of urinalysis collection to switch his sample with 

another one. Defense counsel revealed this to an assistant staff judge advocate, and 

Ankeny was convicted based on the officer’s testimony. Id. at 781. The court found 

ineffective assistance of counsel without much additional analysis. Id. at 784.

In United States v. McCluskey, 20 C.M.R. 261 (C.M.A. 1955), the court found that 

a judge advocate used a confidence tendered during legal assistance to obtain evidence to 

be used in his later prosecution. The court held that evidence developed as a result of a 

breach of the attorney-client privilege may not be used to convict the client. Id. at 268.

Although Appellant would have us focus solely on the duty of confidentiality, trial 

defense counsel also has other duties to opposing counsel and the integrity of the system. 

“A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully 

alter, destroy or conceal a document or other material having potential evidentiary value.
35 ACM 38346 

A lawyer shall not counsel or assist another person to do any such act.” Air Force Rule of 

Professional Conduct, Rule 3.4(a). 

At the time that Capt CH was facilitating Mr. PK’s assistance in moving his client’s 

dog, car, and some personal items to another location, he did not believe the items being 

moved had evidentiary value. Our superior court has recognized that “each case depends 

upon its unique circumstances” in determining when a trial defense counsel is required to 

provide the prosecution with evidence obtained from or through representation of their 

client. Province, 45 MJ at 363. Capt CH knew that items had been removed from 

Appellant’s home and he had facilitated their removal. There was no error in Capt CH 

taking reasonable measures to ensure that the Government’s access to items that later 

determined to have potential evidentiary value was not obstructed by his well-intentioned, 

but perhaps short-sighted and misguided, actions. 21

Furthermore, Appellant’s communications to Capt CH about Mr. PK were not 

privileged. The communications were intended to be relayed to the third party, Mr. PK, or 

occurred in his presence. It is well established that material is not privileged if it is intended 

to be disclosed to a third-party. United States v. Marcum, 60 M.J. 198, 211 (C.A.A.F. 

2004) (Crawford, J. dissenting) (citing Cavallaro v. United States, 284 F.3d 236, 246–47 

(1st Cir. 2002)). Appellant argues that the rules on confidentiality do not mirror the rules 

on privilege and this exception should not apply. We disagree. Appellant’s 

communication to Capt CH about Mr. PK and moving his dog, car, and some personal 

effects to New Jersey were not confidential in this circumstance. The communications 

were intended to be relayed to a third-party and occurred in front of this same third party. 

The communications were not related to the representation of either the no-contact orders 

or the pretrial confinement hearing. At the DuBay hearing the trial judge expressly found 

that “the matters relating to [Mr. PK] were in the form of a personal, non-legal request.” 

We agree. We acknowledge that Mr. PK’s involvement may not have been necessary if 

Appellant had not been confined, however, that does not equate into Capt CH’s help in 

finding a home for Appellant’s dog as being part of the representation. 

Even if the communications were confidential, we are not convinced Appellant is 

able to establish prejudice in the circumstances of this case. The alleged prejudice is that 

Capt CH’s disclosure about the identity of Mr. PK led to the search warrant issued for the 

home of Appellant’s mother. The third prong of the ineffective assistance of counsel 

claims requires Appellant to show there is a reasonable probability that, absent the errors, 

there would have been a different result at trial. United States v. Gilley, 56 M.J. 113, 124 

(C.A.A.F. 2001). Therefore, we look to see if the Government would have identified Mr. 

PK through other methods in the absence of Capt CH’s statements. We conclude they 

would have identified him as a potential witness. Appellant’s phone calls in pretrial 

 

21 In order to avoid ethical dilemmas, we recommend that trial defense counsel not be involved in facilitating the 

removal of items from their client’s home. 
36 ACM 38346 

confinement were monitored and recorded. Capt MT regularly listened to these recordings 

and reviewed Appellant’s confinement visitor log. Capt MT had previously interviewed 

individuals identified through their contact with the confined Appellant. Mr. PK was both 

in the visitor log book and in the phone call recordings. The Government would have 

interviewed Mr. PK. Our conclusion is that the result of the trial would have been the same 

regardless of Capt CH’s intemperate statements.

To be clear, we do not commend the actions of trial defense counsel in this case. 

Ensuring the welfare of his client’s dog was not a legal responsibility and should have 

instead been addressed by Appellant’s first sergeant, commander, or other designee. If 

defense counsel are asked about matters related to their client that potentially could be 

viewed as revealing privileged or confidential information, we highly recommend they 

consult with their supervisors before making any statements. “We believe that contacting 

one’s state bar licensing body and using the ex parte hearing with the military judge for 

close questions like this would be advisable.” Province, 45 M.J. at 363. 

IV. Issues III and XVII—R.C.M. 707

Appellant next alleges that his right to speedy trial under R.C.M. 707 was violated 

in two respects. First, he alleges that the special court-martial convening authority 

(SPCMCA) abused his discretion in excluding 44 days of pretrial confinement from the 

R.C.M. 707 clock. Second, he alleges the SPCMCA abused his discretion in excluding an 

additional 20 days of pretrial confinement from the R.C.M. 707 clock. We disagree.

“The conclusion whether an accused received a speedy trial is a legal question that 

is reviewed do novo . . . .” United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003) 

(quoting United States v. Doty, 51 M.J. 464, 465 (C.A.A.F. 1999)). 

R.C.M. 707 generally requires the government to arraign an accused within 120 

days after the earlier of preferral of charges, the imposition of restraint, or entry on active 

duty. However, R.C.M. 707(c) permits all pretrial delays approved by the military judge 

or convening authority to be excluded from the calculation of the 120-day requirement. 

“The decision to grant or deny a reasonably delay is a matter within the sole discretion of 

the convening authority or a military judge. The decision should be based on the facts and 

circumstances then and there existing.” R.C.M. 707(c), Discussion. “Pretrial delays 

should not be granted ex parte, and when practicable, the decision granting the delay, 

together with supporting reasons and the dates covering the delay, should be reduced to 

writing.” Id. In reviewing a convening authority’s decision to exclude time from the 

R.C.M. 707 calculation, “the issue is not which party is responsible for the delay but 

whether the decision of the officer granting the delay was an abuse of discretion.” United 

States v. Lazauskas, 62 M.J. 39, 41–42 (C.A.A.F. 2005).

The record reveals the following timeline relevant to our analysis of both speedy 

trial issues:
37 ACM 38346 

Date Days following 

imposition of 

pretrial 

confinement

Activity

12 Mar 12 0 Appellant entered pretrial confinement

23 Apr 12 42 Appellant’s first request for speedy trial

9 May 12 58 Appellant’s commander forwarded memo to general 

court-martial convening authority informing him of delay 

in forwarding charges (justification: awaiting forensic 

analysis of Appellant’s computer hardware)

10 May 12 59 Appellant’s second request for speedy trial

15 May 12 64 Preferral package forwarded to general court-martial 

convening authority’s legal staff for review

7 Jun 12 87 Appellant’s third request for speedy trial

20 Jun 12 100 Government requested exclusion of time from R.C.M. 

707 speedy trial clock (justification: did not expect 

forensic analysis to be completed until roughly 15 July 

12)

28 Jun 12 108 Majority of charges preferred

2 Jul 12 112 SPCMCA excluded period from 15 May 12 until 27 June 

12 (44 days) for speedy trial purposes. The defense 

opposed excluding this period.

9 Jul 12 119 SPCMCA excluded 20 days for speedy trial purposes in 

a letter appointing the Article 32, UCMJ, investigating 

officer. 

6 Aug 12 147 Article 32, UCMJ, investigative hearing

15 Aug 12 156 Article 32, UCMJ, investigating officer completed his 

report

20 Aug 12 161 Additional charge preferred

27 Aug 12 168 Charges referred to general court-martial
38 ACM 38346 

30 Aug 12 171 Trial defense counsel moved to dismiss charges for 

Article 10, UCMJ, speedy trial violation

5 Sep 12 177 Arraignment

19 Feb 13 344 Military judge denied defense motion to dismiss for 

Article 10, UCMJ, speedy trial violation; trial began after 

several Article 39(a), UCMJ, sessions to resolve defense 

motions and other issues

177 total days elapsed between the imposition of pretrial confinement and 

arraignment. However, the SPCMCA excluded a total of 64 days from this period, 

reducing the number of days under the R.C.M. 707 clock to 113. Therefore, if the 

SPCMCA properly excluded these days, no R.C.M. 707 violation occurred.

A. 44-Day Exclusion

The Government’s basis for the requested exclusion from 15 May 2012 to 27 June 

2012 was that it needed time to analyze Appellant’s computer media devices. The basis 

for the Government’s request was as follows:

First, the vast majority of the evidence in this case will derive 

from the scientific findings of [the Defense Computer 

Forensics Laboratory]. Therefore, it is important to await for 

final forensic examination of the computer media equipment to 

assess the nature of the evidence against [Lieutenant Colonel]

Richards and to examine the true extent of his criminal 

conduct. To date we have received only piecemealed bits of 

evidence and while the evidence received clearly depict[s] 

criminal misconduct, we have yet to receive the full and 

complete forensic analysis that will truly shape the final 

charges against [Lieutenant Colonel] Richards. The 

government too, has a right to a fair trial and we submit that 

justice requires that [Lieutenant Colonel] Richards be brought 

to trial for all possible criminal misconduct.

The Government noted that one of the hard drives was encoded with password protection 

(as discussed in Issue II above) and that the forensics laboratory simply needed more time 

to complete its examination based on the number of devices to be analyzed and the amount 

of suspected child pornography on these devices. The Government also provided the 

convening authority with a timeline of its efforts to timely bring this case to trial. 
39 ACM 38346 

At trial, the Defense challenged this exclusion of time.22 The Defense asserted that 

this period should not have been excluded for three reasons: (1) the Government’s stated 

reason for the exclusion (to allow the forensics laboratory more time to conduct its 

analysis) was not valid because the Government received most of the information it needed 

from the laboratory before the excluded period, (2) numerous delays requested by the 

Government contradicted its claim that it was moving this case along as quickly as possible,

and (3) the delay prejudiced Appellant.

The military judge denied the Defense’s motion. Concerning the 44-day exclusion, 

he noted that the Government had provided the SPCMCA with a “detailed description of 

computer-related matters requiring further investigation, along with the legal analysis to 

why the requested exclusion was appropriate.” 

We find no error in the military judge’s ruling or in the SPCMCA’s decision to 

exclude this 44-day period from the R.C.M. 707 calculation. The discussion to R.C.M. 

707(c) specifically provides that allowable reasons to exclude time might include “time to 

enable counsel to prepare for trial in complex cases” and “time to secure the availability of 

. . . substantial witnesses, or other evidence.” This was certainly a complex case, requiring 

the forensic examination of multiple media devices on which extensive amounts of child 

pornography was found. It is true that, as the Defense asserted, much of the evidence from 

the forensics laboratory was already available to the Government. However, it was not 

unreasonable for the Government to wait for the remainder of this evidence before 

preferring charges, as the Government undeniably had an interest in ensuring Appellant’s 

court-martial captured all aspects of his diverse and extended misconduct. See United 

States v. Cossio, 64 M.J. 254, 257 (C.A.A.F. 2007). The Government ultimately decided 

to prefer charges before receiving the final forensics report, but this does not undercut the 

Government’s stated reasons for excluding this period. Rather, it demonstrates that the 

Government was sensitive to the need to try this case in a timely manner. The SPCMCA 

acted appropriately in excluding this 44-day period.

B. 20-Day Exclusion

On 9 July 2012, the SPCMCA excluded the period from 9 July 2012 to 30 July 2012 

from the R.C.M. 707 calculation. The SPCMCA found that the Government was ready to 

proceed with the Article 32, UCMJ, investigative hearing on 9 July, but civilian defense 

counsel was unavailable until 30 July. Appellant alleges the SPCMCA erred in two 

respects: (1) trial defense counsel had already advised the Government that Appellant 

wanted to proceed with the hearing as soon as possible and was willing to waive the 

presence of his civilian defense counsel to facilitate an earlier hearing date; and (2) the 

 

22 The Defense’s first motion to dismiss for a violation of Rule for Courts-Martial 707 did not challenge the 44-day

exclusion. Rather, the Defense, not realizing the later 20-day exclusion had been granted, asserted that the 120-day 

period had been exceeded. After the Government noted the 20-day exclusion and the military judge denied the motion 

to dismiss, the Defense filed another motion to dismiss, this time asserting that the convening authority abused his 

discretion in excluding both periods of time. 
40 ACM 38346 

Defense did not receive an opportunity to provide input to the SPCMCA before the 

exclusion decision was made.

We find no error in the SPCMCA’s decision to exclude this period of time, nor in 

the military judge’s ruling denying the Defense’s motion to dismiss for an R.C.M. 707 

violation. Appellant correctly notes that prior to 9 July 2012, trial defense counsel had 

informed the Government of Appellant’s desire to proceed to an investigative hearing as 

soon as possible and of his willingness to waive civilian defense counsel’s appearance at 

the hearing if necessary to facilitate a timely hearing. However, after this representation, 

Appellant hired a new civilian defense counsel. On 26 June 2012, a government 

representative emailed the new civilian defense counsel, along with the military defense 

counsel who had earlier communicated Appellant’s wishes. The government 

representative asked the two defense counsel when in July they were available to conduct 

the hearing. In a series of emails, civilian defense counsel represented that he was not 

available until 30 July. Military defense counsel was copied on all these messages, yet did 

nothing to re-emphasize his earlier representation of Appellant’s wishes. Instead, when 

discussion took place about a possible 6 August hearing date, military defense counsel 

stated, “that would work out better for me.” Based on this, the government representative 

was left with the reasonable impression that Appellant now wanted his new civilian defense 

counsel to represent him, and that the defense team was not available until 30 July 2012. 

The Government committed no error in communicating this to the SPCMCA, and the 

SPCMCA committed no error approving this 20-day exclusion.

Appellant also alleges that he should have received an opportunity to contest the 

requested exclusion to the SPCMCA. The discussion to R.C.M. 707(c) provides: “Pretrial 

delays should not be granted ex parte . . . .” The discussion does not elaborate on the nature 

of this requirement, and case law has not addressed the significance of this discussion. In 

general, the discussion to the Rules for Courts-Martial does not provide a binding source 

of law. Willenbring v. Neurauter, 48 M.J. 152, 168 (C.A.A.F. 1998) (observing that the 

discussion sections of the Rules for Courts-Martial “are not part of the Manual and . . . . do 

not contain official rules or policy”). In any event, the Government sought out the 

Defense’s position as to when it was available to conduct the investigative hearing. In 

writing, the Defense affirmatively represented that it was not available until 30 July. The 

Government accurately conveyed the Defense’s position to the SPCMCA, and the 

SPCMCA acted on the position defense counsel had articulated. We find no error in the 

method by which the SPCMCA was informed of the parties’ positions on this requested 

delay.

Finally, we have examined Appellant’s Grostefon claim of ineffective assistance of 

counsel related to this issue. Appellant alleges that his civilian defense counsel was 

ineffective by failing to object to the convening authority’s 20-day exclusion of time. He 

argues that his counsel apparently failed to read the letter, because trial defense counsel’s 

first motion to dismiss under R.C.M 707 failed to recognize that the 20-day period had 
41 ACM 38346 

been excluded. We find no basis for relief under this claim because even assuming civilian 

defense counsel was ineffective in this regard, no prejudice resulted. Trial defense counsel 

did ultimately challenge this 20-day exclusion before the military judge, and the military 

judge denied relief. As discussed above, we concur with the military judge’s ruling.

V. Issue IV: Article 10, UCMJ

Appellant next raises another speedy trial issue, this time alleging a violation of 

Article 10, UCMJ, 10 U.S.C. § 810. Under this issue, he generally challenges the entire 

period from the time he was placed in pretrial confinement until the date of trial, alleging 

that the length of the delay in bringing him to trial constitutes an Article 10, UCMJ, speedy 

trial violation. He specifically alleges that the Government’s argument that it was waiting 

on the forensic analysis of Appellant’s computer media is insufficient, as that examination 

was not aimed at discovering evidence relevant to the charged misconduct. He also focuses 

on specific delays that occurred within the overall processing of his case, such as the delay 

between imposition of pretrial confinement and preferral of charges; the delay between 

preferral and the Article 32, UCMJ, investigation; and the delay in forwarding a memo 

stating why charges were not being preferred in a reasonable manner.

We review the issue of whether the Government has violated Article 10, UCMJ, de 

novo, giving substantial deference to a military judge’s findings of fact. United States v. 

Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2003). 

When a servicemember is placed in pretrial confinement, “immediate steps shall be 

taken” to inform the accused of the charges and to either bring the accused to trial or 

dismiss the charges. Article 10, UCMJ. Unlike R.C.M. 707, Article 10, UCMJ, does not 

provide a specific time period within which the accused must be brought to trial. Article 

10, UCMJ, creates “a more stringent speedy trial standard than the Sixth Amendment.”23 

Cossio, 64 M.J. at 256. Nonetheless, the factors set forth in Barker v. Wingo, 407 U.S. 514 

(1972), that are used to analyze Sixth Amendment speedy trial issues “are an apt structure 

for examining the facts and circumstances surrounding an alleged Article 10 violation.” 

Mizgala, 61 M.J. at 127. Those factors are: “(1) the length of the delay; (2) the reasons 

for the delay; (3) whether Appellant made a demand for a speedy trial; and (4) prejudice to 

the appellant.” Id. at 129. 

While the Barker factors are relevant to our Article 10, UCMJ, analysis, “Sixth 

Amendment speedy trial standards cannot dictate whether there has been an Article 10 

violation.” Id. at 127. Instead, we “use the [Sixth Amendment] procedural framework to 

analyze Article 10 claims under the ‘immediate steps’ standard of the statute and the 

applicable case law.” United States v. Thompson, 68 M.J. 308, 312 (C.A.A.F. 2010). 

Article 10, UCMJ, does not demand “constant motion, but reasonable diligence in bringing 

the charges to trial.” United States v. Tibbs, 35 C.M.R. 322, 325 (C.M.A. 1965). “Short 

 

23 U.S. CONST. amend. VI.
42 ACM 38346 

periods of inactivity are not fatal to an otherwise active prosecution.” Mizgala, 61 M.J. at 

127. In reviewing whether the demands of Article 10, UCMJ, have been satisfied, “we 

remain mindful that we are looking at the proceeding as a whole and not mere speed.” Id.

at 125.

The military judge found as facts a chronology prepared by the installation deputy 

staff judge advocate and the information in an affidavit prepared by the installation chief 

of military justice. These documents generally detailed Government activity during the 

time leading up to arraignment, such as conducting the pretrial confinement hearing, 

investigating the suspected offenses, interviewing witnesses, attempting to identify 

potential victims, drafting a proof analysis, and coordinating with local law enforcement 

officials. In a short written ruling, the military judge denied the motion to dismiss, finding 

the Government took immediate steps to bring Appellant to trial.

We accept the military judge’s findings of fact insofar as they establish actions of 

the Government leading to Appellant’s arraignment. We review de novo whether those 

facts demonstrate a lack of reasonable diligence under Article 10, UCMJ, beginning with 

an analysis of the Barker factors.

A. Length of the Delay

The first factor under the Barker analysis is the length of the delay. This factor 

serves as a “triggering mechanism,” meaning that unless the period of delay is 

unreasonable on its face, “there is no necessity for inquiry into the other factors that go into 

the balance.” Cossio, 64 M.J. at 257 (quoting United States v. Smith, 94 F.3d 204, 208–09 

(6th Cir. 1996)). In Cossio, our superior court held that a full Barker analysis was 

appropriate where the accused had made a timely demand for a speedy trial and had been 

held in continuous pretrial confinement for 117 days after he moved for relief. Id. 

Likewise, in Mizgala, a 117-day period was sufficiently unreasonable to warrant further 

analysis. Mizgala, 61 M.J. at 128–29. In Thompson, a 145-day period of pretrial 

confinement triggered the full Article 10, UCMJ, inquiry. Thompson, 68 M.J. at 312; see 

also United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993) (“We see nothing in Article 

10 that suggests that speedy-trial motions could not succeed where a period under 90—or 

120—days is involved.”). We recognize that this was a complicated case involving 

allegations of prolonged and diverse misconduct over an extended period of time at 

multiple locations, and we have accounted for this in determining how much weight to give 

this factor. We, nonetheless, find that this factor weighs slightly in Appellant’s favor and 

that the delay is sufficiently unreasonable on its face to trigger further analysis of the 

remaining Barker factors and Article 10, UCMJ.

B. Reasons for the Delay

The chronology and affidavit adopted as facts by the military judge reveal the 

Government was engaged in significant activity throughout the 177-day period leading up 
43 ACM 38346 

to arraignment. Appellant was placed in pretrial confinement after he was observed 

breaking a no-contact order with a teenager who had stated he had a sexual relationship 

with Appellant. Appellant’s continued misconduct led AFOSI to execute additional 

searches of Appellant’s home, car, and office. These searches resulted in the discovery of 

additional images of child pornography that ultimately formed the basis for a specification 

referred to trial. The external hard drive on which this child pornography was found was 

password protected, causing significant delay in analyzing it. Ultimately, Appellant’s 

mother’s home in New Jersey had to be searched to find evidence relevant to the case, as 

outlined in Issue II above. While the facts found by the military judge reveal some minor 

gaps, they leave no doubt that the Government engaged in significant activity throughout 

the 177-day period.

The Government had the opportunity to conduct its preparations and investigations 

in large part because it decided to await forensic examination of Appellant’s computer 

media devices. Appellant alleges this was not an acceptable reason for the delay in bringing 

him to trial; we disagree. In a similar circumstance, our superior court in Cossio held that 

the government was entitled to wait on a forensic examination of the accused’s computer 

equipment before bringing the accused to trial, even though other evidence existed of the 

accused’s guilt. The court concluded that “it was not unreasonable for the Government to 

marshal and weigh all evidence, including forensic evidence, before proceeding to trial.” 

Cossio, 64 M.J. at 257. When the Government initially decided to wait on the examination, 

it reasonably believed it needed that evidence to go forward. That decision ultimately 

proved correct, as the testimony of the expert who conducted the forensic examination was 

critical to securing the conviction on the possession of child pornography specification. 

We see nothing unreasonable in the Government’s decision to await the forensic 

examination, especially where it used that time to take necessary steps to investigate and 

prepare the case for trial.24 This factor weighs in favor of the Government.

C. Speedy Trial Request

Appellant submitted three speedy trial requests in the initial months after his 

placement in pretrial confinement. The Government argues that these requests were 

“nothing more than transparent attempts to manufacture an issue for appeal,” because, at 

the same time Appellant was requesting a speedy trial, he was also seeking individuallydetailed defense counsel, something he knew would result in a delay if granted. We 

decline the invitation to read more into Appellant’s speedy trial requests. Appellant made 

 

24 Appellant also alleges that much of the period during which the forensic examination was being conducted was 

spent waiting for a “taint review” of the material on Appellant’s electronic devices. The stated purpose of this review 

was to ensure that the Government did not review material protected by the attorney-client privilege. Appellant alleges 

this rationale is deficient because, at the time he was placed into pretrial confinement, he was assigned to represent 

the government in utility law litigation; therefore, no taint concerns would be present. We reject this argument. The 

record reveals Appellant had previously been an area defense counsel assigned to represent servicemembers in military 

justice actions. It was reasonable for the Government to believe that Appellant’s electronic devices might contain 

protected information relating to his representation of servicemembers. We see nothing unreasonable in the 

Government’s precautionary step of conducting the taint review.
44 ACM 38346 

his requests before charges were preferred and before the Article 32, UCMJ, investigation. 

We fail to see how requesting appointment of a specifically-named counsel would 

necessarily result in delay, and we see nothing inherently disingenuous about Appellant’s 

speedy trial requests. This factor weighs in favor of Appellant.

D. Prejudice

Appellant asserts he suffered prejudice from the delay in bringing him to trial in the 

following ways: (1) the conditions of his pretrial incarceration were oppressive, as he was 

housed with post-trial inmates; (2) he suffered anxiety while awaiting the resolution of 

charges, particularly in enduring roadblocks in securing adequate medical care; and (3) his 

defense was impaired because he did not have unfettered access to his trial defense counsel 

and legal resources to research issues in preparation of his defense. We disagree that these 

situations constitute prejudice resulting from the delay in bringing him to trial.

The Supreme Court has established the following test for prejudice in the Sixth 

Amendment speedy trial context:

Prejudice, of course, should be assessed in the light of the 

interests of defendants which the speedy trial right was 

designed to protect. This Court has identified three such 

interests: (i) to prevent oppressive pretrial incarceration; (ii) to 

minimize anxiety and concern of the accused; and (iii) to limit 

the possibility that the defense will be impaired. Of these, the 

most serious is the last, because the inability of a defendant 

adequately to prepare his case skews the fairness of the entire 

system.

Barker, 407 U.S. at 532 (footnote omitted). 

We find that Appellant has failed to demonstrate prejudice under any of these three 

interests. As to the first, Appellant correctly notes that the military judge awarded him 75 

days of additional credit toward his sentence to confinement under R.C.M. 305(k) for 

inconveniences such as a leaky roof, short-term commingling with post-trial confinees, 

limited access to fitness and recreational equipment, difficulty obtaining certain allergy 

medications, and problems with the facility’s heating system. However, such violations 

hardly rendered Appellant’s pretrial confinement overly harsh or oppressive. As to the 

second interest, Appellant has not identified “particularized anxiety and concern greater 

than the normal anxiety and concern associated with pretrial confinement.” United States 

v. Wilson, 72 M.J. 347, 354 (C.A.A.F. 2013). His generalized claims that he experienced 

obstacles to getting allergy medication fall short of demonstrating particularized anxiety 

and concern. Finally, and most importantly, he has wholly failed to demonstrate that his 

defense may have been impaired. Appellant’s defense team raised 18 motions at trial. 

Trial defense counsel was successful in getting 7 of the 17 referred specifications 
45 ACM 38346 

dismissed. Appellant has pointed to no witness or evidence that became unavailable as a 

result of the delay. Our review of the record reveals a well-litigated case by trial defense 

counsel in the face of strong evidence by the prosecution. Appellant was ably represented 

by a team of counsel, and we reject Appellant’s position that his defense was impaired 

because he experienced some difficulty personally researching issues and freely 

communicating with his counsel.25

E. Balancing of Barker Factors in an Article 10, UCMJ, Context

Considering the fundamental command of Article 10, UCMJ, for reasonable 

diligence, and balancing the Barker factors, we conclude that Appellant was not denied his 

right to a speedy trial under Article 10, UCMJ. Although there were situations in which 

the Government might have been able to move more quickly, overall the Government 

demonstrated consistent progress toward bringing this case to trial, and it made a 

reasonable decision to await the results of the computer forensics examination. The record 

does not reveal that the forensic laboratory improperly prioritized or otherwise 

unreasonably delayed the forensic examination of the computer evidence, and when the 

Government realized that it could no longer afford to wait for the full results of the 

examination, it preferred charges. 

Appellant has failed to demonstrate any prejudice as a result of the delay. It is 

apparent his defense team took full advantage of the delay by raising several motions that 

led to the dismissal of several charges and other relief. Even after Appellant was arraigned, 

trial did not take place for another 170 days to allow for the litigation of several defense 

motions and the resolution of the final composition of Appellant’s defense team. We 

conclude that the Government proceeded to trial with reasonable diligence under the 

circumstances of this case, and the military judge did not err in concluding that Appellant 

was not denied his Article 10, UCMJ, right to a speedy trial.

VI. Issue V: Admission of Testimony under Mil. R. Evid. 404(b)

Appellant met DP in about 1997 and married her in 2000. The couple divorced in 

2003. DP had a son who lived with the couple during their marriage. DP’s son was about 

10 years old when the couple met and about 13 years old when Appellant and DP were 

married. The Government called DP to testify to certain aspects of their relationship. She 

testified that during their six years together they engaged in intimate kissing twice, both 

times being very awkward, and never had sexual intercourse. DP testified that she 

attempted to have intercourse with Appellant, but he rejected her advances. She also 

testified that Appellant seemed to be more interested in her son than her. DP testified that 

on one occasion she went into her son’s room and found him straddling Appellant, who 

was lying on his back. When her son got off of Appellant, DP saw that Appellant had an 

 

25 Even if Appellant’s defense was impaired by this lack of access, we fail to understand how the delay in bringing

him to trial worsened this problem. If anything, granting him more time to conduct research and consult with counsel 

would seem to improve Appellant’s ability to prepare for trial.
46 ACM 38346 

“extremely obvious” erection under his shorts, which he covered by quickly untucking his 

shirt. DP testified that when she left Appellant, he was devastated about her son leaving 

but had no reaction to her leaving.

At trial, the Defense raised a motion in limine to exclude DP’s testimony on this 

matter. The Government responded that it was offering the testimony under Mil. R. Evid. 

404(b) to aid in proving the specifications alleging the indecent acts toward the sibling of 

a “little brother,” arguing that this is “clear, strong evidence that [Appellant], in fact, would 

have a sexual interest in a child, that this was something he was looking for.” 

The military judge denied the Defense’s motion in limine. He found that the 

evidence reasonably supported a conclusion that Appellant committed the acts to which 

DP testified, and that the proffered evidence was “highly probative of whether [the] 

accused had motive, intent, or plan to engage in the alleged indecent acts involving [NR].” 

Finally, he found that DP’s testimony survived a balancing test under Mil. R. Evid. 403, in 

that its probative value was not substantially outweighed by the danger of unfair prejudice; 

confusion of the issues; misleading the members; or considerations of undue delay, waste 

of time, or needless presentation of cumulative evidence. Appellant challenges this ruling, 

asserting that the Government offered this evidence to show that Appellant was a sexual 

deviant and was attracted to young boys—an improper purpose under Mil. R. Evid. 404(b). 

Appellant argues that even if this evidence served a proper purpose under Mil. R. Evid. 

404(b), it does not survive the Mil. R. Evid. 403 balancing test and, therefore, should have 

been suppressed.

We review a military judge’s decision to admit or exclude evidence for an abuse of 

discretion. United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010). “The abuse of 

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

challenged action must be ‘arbitrary, fanciful, clearly unreasonable, or clearly erroneous.’” 

United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (quoting United States v. 

McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000)). A decision to admit or exclude evidence 

based upon Mil. R. Evid. 403 is within the sound discretion of the military judge. United 

States v. Smith, 52 M.J. 337, 344 (C.A.A.F. 2000). However, “[w]here the military judge 

is required to do a balancing test under [Mil. R. Evid.] 403 and does not sufficiently 

articulate his balancing on the record, his evidentiary ruling will receive less 

deference . . . .” United States v. Berry, 61 M.J. 91, 96 (C.A.A.F. 2005). 

Mil. R. Evid. 404(a) generally states that evidence of a person’s character or a trait 

of character is not admissible for the purpose of proving action in conformity with that 

character or trait. However, Mil. R. Evid. 404(b) sets forth exceptions to that rule.

Under United States v. Reynolds, three standards are utilized to test the admissibility 

of evidence of uncharged misconduct under Mil. R. Evid. 404(b):
47 ACM 38346 

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

members that Appellant committed prior crimes, wrongs or 

acts? 

2. What fact . . . of consequence is made more or less probable 

by the existence of this evidence? 

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

danger of unfair prejudice? 

29 M.J. 105, 109 (C.M.A. 1989) (quotation marks and citations omitted).

In United States v. Morrison, 52 M.J. 117 (C.A.A.F. 1999), the appellant was 

convicted of battery on a child under the age of 16 years and committing indecent acts. 

One of the victims was the daughter of a family friend; the other victim was the appellant’s 

niece. Id. at 119. The military judge admitted Mil. R. Evid. 404(b) evidence that the 

appellant had sexually abused his daughter over an eight-year period. Id. at 120. The 

military judge found that the acts with his daughter were similar to those with the other two 

girls and, therefore, admissible to show motive, plan or scheme, ability or opportunity, and 

lack of mistake. Id. at 122. On appeal, our superior court found that the military judge 

abused his discretion. The court held that uncharged acts “must be almost identical to the 

charged acts” to be admissible as evidence of a plan or scheme. Id. (quoting United States 

v. Brannan, 18 M.J. 181, 183 (C.M.A. 1984)). Likewise, “[w]here evidence is offered to 

show modus operandi, there must be a ‘high degree of similarity between the extrinsic 

offense and the charged offense.’ The similarity must be so great that it is ‘like a signature 

marking the offense as the handiwork of the accused.’” Id. (quoting United States v. 

Gamble, 27 M.J. 298, 305 (C.M.A. 1988)).26

We find the military judge abused his discretion in admitting DP’s testimony 

concerning Appellant’s acts toward DP’s son. 

The admission of DP’s testimony was erroneous under the second Reynolds prong. 

The trial judge, trial counsel, and appellate government counsel have all failed to articulate 

a fact of consequence that is made more or less probable by DP’s testimony evidence. The 

military judge’s written ruling relied on the rationale that the proffered evidence was 

probative of whether Appellant had motive, intent, or plan to engage in the charged 

indecent acts involving NR. Uncharged misconduct is only admissible if offered for some 

purpose other than to demonstrate that the accused is predisposed to such criminal activity. 

United States v. Taylor, 53 M.J. 195, 199 (C.A.A.F. 2000). We see no fact made more or 

 

26 Mil. R. Evid. 414 was enacted after United States v. Morrison, 52 M.J. 117 (C.A.A.F. 1999), and it provides 

guidance for determining the admissibility of evidence of similar crimes in child molestation cases. Trial counsel did 

not provide the required notice, and neither of the parties addressed the applicability of Mil R. Evid. 414. The military 

judge’s ruling likewise did not address Mil. R. Evid. 414. Therefore, we do not address the potential admissibility of 

the evidence under Mil. R. Evid. 414. 
48 ACM 38346 

less probable by DP’s testimony, other than propensity. “[E]vidence of uncharged bad acts 

may not be introduced solely to show that the accused has a propensity to commit crimes 

of the type charged.”27 Morrision, 52 M.J. at 121. The only relevance to DP’s testimony 

was to show that Appellant was the type of person who would commit the charged offenses. 

This is exactly what Mil. R. Evid. 404 prohibits.

Having determined that the military judge abused his discretion in admitting DP’s 

testimony under Mil. R. Evid. 404(b), we must test for prejudice under Article 59(a), 

UCMJ, 10 U.S.C. 859(a). Our test in this regard is to “determine whether this error resulted 

in material prejudice to [the a]ppellant’s substantial rights.” United States v. Barnett, 63 

M.J. 388, 397 (C.A.A.F. 2006). “We evaluate prejudice from an erroneous evidentiary 

ruling by weighing (1) the strength of the Government’s case, (2) the strength of the defense 

case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in 

question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).

Under this standard, we find no material prejudice to a substantial right of Appellant 

from the military judge’s erroneous admission of DP’s testimony. The Government’s case 

concerning the indecent acts toward the “little brother’s” sibling was strong. The 

Government had photographic evidence of Appellant’s acts taken from Appellant’s 

computer. The photos themselves, combined with the computer forensic evidence and 

other evidence tying Appellant to the photos, convincingly demonstrated that Appellant 

committed the charged misconduct. The Defense case, conversely, essentially involved 

implying that somehow photos of the indecent acts must have come from some other source 

than Appellant, even though photos were taken during times when the victim was in 

Appellant’s care. We recognize that the military judge erroneously found that DP’s 

testimony was relevant, but the military judge’s ruling offered no reason to believe he, as 

the factfinder, placed great value on this evidence. Under these circumstances, we are 

confident that the erroneous admission of DP’s testimony had no impact on Appellant’s 

conviction for the specifications of indecent acts.

Appellant raises one other issue regarding prejudice that bears discussion. After the 

military judge’s ruling concerning DP’s testimony, Appellant elected to be tried by a 

military judge alone. Trial defense counsel noted that Appellant’s forum choice was based 

on the ruling regarding DP’s testimony and one other evidentiary ruling. Appellant now 

alleges that he was prejudiced by the admission of DP’s testimony, in part, because it 

affected his forum choice. Appellant cites no case law to indicate that a ruling that affects 

forum choice constitutes prejudice, in and of itself, and we find no authority for this 

position. Appellant presumably made his forum choice precisely to minimize the danger 

 

27 The word “bad” does not appear in Mil. R. Evid. 404(b). However, the rule is traditionally interpreted as referring 

to “bad acts” as part of the general prohibition against character evidence to show action in conformity therewith. See, 

e.g., United States v. James, 63 M.J. 217, 219 (C.A.A.F. 2006) (“The rule allowed evidence of bad acts to be admitted 

for limited purposes, but the basic evidentiary rule excluded bad acts solely to show bad character and a propensity to 

act in conformance with that bad character.” (emphasis added)).
49 ACM 38346 

of prejudice resulting from the military judge’s rulings, and electing to be tried by a military 

judge alone resulted in no cognizable harm to Appellant. If we accepted Appellant’s 

position, an accused could convert every erroneous ruling into a basis for a new trial merely 

by stating that the ruling played into the choice of forum. We find that a ruling that affects 

forum choice does not, in and of itself, materially affect a substantial right of an accused.28 

Appellant was not prejudiced by the military judge’s erroneous ruling admitting DP’s 

testimony, and he is not entitled to relief on this issue.

VII. Issue VI: Admission of Evidence under Mil. R. Evid. 413 and 414

Before trial, the Government provided the Defense notice that it intended to 

introduce evidence that Appellant had sexually molested another “little brother” about 20 

years earlier. The former “little brother,” JP, stated that Appellant showed him 

pornography and touched him inappropriately when JP was eight years old.29 JP stated 

that this conduct continued after Appellant moved away, as JP continued to visit Appellant. 

JP further stated that Appellant’s conduct progressed to attempts to have anal sex with him, 

and the conduct continued until JP was about 14 years old.

At trial, the Defense moved to exclude JP’s testimony, asserting that it failed to 

qualify for admission under Mil. R. Evid. 413. The military judge disagreed, finding JP’s 

testimony was relevant and its probative value was not substantially outweighed by its 

prejudicial effect. Appellant now alleges the military judge abused his discretion in 

admitting this testimony. We disagree.

As in the previous issue, we review the denial of a motion to suppress for an abuse 

of discretion. United States v. Larson, 66 M.J. 212, 215 (C.A.A.F. 2008). 

Mil. R. Evid. 413(a) provides that “[i]n a court-martial in which the accused is 

charged with an offense of sexual assault, evidence of the accused’s commission of one or 

more offenses of sexual assault is admissible and may be considered for its bearing on any 

matter to which it is relevant.” Before admitting evidence under this rule, the military 

judge is required to find that (1) the accused is charged with an offense of sexual assault, 

(2) the evidence proffered is evidence of the accused’s commission of another offense of 

sexual assault, and (3) the evidence is relevant under Mil. R. Evid. 401 and 402. United 

States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000). In addition, under Mil. R. Evid. 403, 

the probative value of the evidence must not be substantially outweighed by the danger of 

unfair prejudice or similar concerns. Id. 

 

28 Appellant also alleges prejudice because the military judge’s erroneous ruling likely impacted the sentence 

adjudged. Our review of the record reveals no reason to believe the military judge used DP’s testimony in determining 

Appellant’s sentence.

29 JP provided the initial report of child sexual abuse that led to the wider investigation into Appellant’s activities. 

Appellant was not charged with any offense involving JP. 
50 ACM 38346 

Mil. R. Evid. 414(a) sets forth a similar rule in a slightly different context. It states 

that “[i]n a court-martial in which the accused is charged with an offense of child 

molestation, evidence of the accused’s commission of one or more offenses of child 

molestation is admissible and may be considered for its bearing on any matter to which it 

is relevant.” This rule, like Mil. R. Evid. 413, “establishes a presumption in favor of 

admissibility of evidence of prior similar crimes in order to show predisposition to commit 

the designated crimes.” United States v. Tanner, 63 M.J. 445, 448 (C.A.A.F. 2006) (citing 

Wright, 53 M.J. at 482–83). Like Mil. R. Evid. 413, a military judge must perform a twostep analysis to determine the admissibility of evidence under Mil. R. Evid. 414. First, the 

military judge must make three threshold findings: (1) the accused is charged with an act 

of child molestation as defined by the rule, (2) the proffered evidence is evidence of his 

commission of another offense of child molestation as defined by the rule, and (3) the 

evidence is relevant under Mil. R. Evid. 401 and 402. United States v. Ediger, 68 M.J. 

243, 248 (C.A.A.F. 2008). If these three threshold factors are met, then the military judge 

must apply the balancing test of Mil. R. Evid. 403. Id.

In performing the Mil. R. Evid. 403 balancing test under either Mil. R. Evid. 413 or 

414, a careful balancing must be performed due to “the potential for undue prejudice that 

is inevitably present when dealing with propensity evidence.” United States v. James, 63 

M.J. 217, 222 (C.A.A.F. 2006). Factors the military judge should consider include: 

(1) strength of proof of the prior act, for example, whether the proof represents a conviction 

or mere gossip; (2) probative weight of the evidence; (3) potential for less prejudicial 

evidence; (4) potential of distraction to the factfinder; (5) time needed for proof of the prior 

conduct; (6) temporal proximity between the charged misconduct and the prior act; 

(7) frequency of the acts; (8) presence or lack of intervening circumstances; and 

(9) relationship between the parties. Wright, 53 M.J. at 482.

As an initial matter, the record contains some confusion as to whether JP’s 

testimony was offered under Mil. R. Evid. 413 or 414, or both. The record of trial does not 

contain the Government’s notice to trial defense counsel, but both the Defense’s motion 

and the Government’s response refer only to Mil. R. Evid. 413. During motions practice, 

however, trial defense counsel noted that Mil. R. Evid. 414 was the more appropriate rule 

and asked the military judge to apply that rule. The military judge accordingly found the 

evidence admissible under both rules. On appeal, Appellant concedes that Mil. R. Evid. 

414 is the more appropriate rule, but contends the analysis would be substantively identical 

under either rule. 

We agree with Appellant that Mil. R. Evid. 414 is the more appropriate rule in this 

situation, and we choose to analyze this issue under that rule, recognizing that the military 

judge found the evidence admissible under either rule.30 Having done so, we find no abuse 

 

30 Assuming this matter should be analyzed under Mil. R. Evid. 413, our conclusion would not change. Both the 

charged and prior actions constitute offenses of sexual assault, as defined by Mil. R. Evid. 413(d). Otherwise, our 

analysis under Mil. R. Evid. 413 would be identical to our analysis under Mil. R. Evid. 414.
51 ACM 38346 

of discretion in the military judge’s ruling to admit JP’s testimony. “Mil. R. Evid. 414 sets 

forth a two-part test to determine whether proposed "similar crimes" constitute "child 

molestation": (1) whether the conduct constitutes a punishable offense under the UCMJ, 

federal law, or state law when the conduct occurred; and (2) whether the conduct is 

encompassed within one of the specific categories set forth in Mil. R. Evid. 414(d)(2)”

United States v. Fetrow, 75 M.J. 574, 582-83 (A.F. Ct. Crim. App. 2016) The first two 

factors (whether Appellant was charged with an act of child molestation and whether JP’s 

testimony was evidence of his commission of another offense of child molestation) are 

easily met. As to the relevancy of this evidence, we agree with Appellant that the military 

judge’s analysis of this threshold factor was cursory. However, we see no abuse of 

discretion in his ultimate conclusion that JP’s testimony was relevant. Mil. R. Evid. 414 

“reflects a presumption that other acts of child molestation constitute relevant evidence of 

predisposition to commit the charged offense.” Tanner, 63 M.J. at 449. The Defense case 

was that the Government did not meet its burden of proving Appellant was the person 

pictured in the digital images found on Appellant’s computer committing indecent acts 

upon the “little brother’s” sibling. JP’s testimony, showing Appellant’s predisposition to 

commit sexual acts upon young boys in his care, was directly relevant to the charged 

indecent acts.

We also find no abuse of discretion in the military judge’s ruling that JP’s testimony 

was admissible under the Mil. R. Evid. 403 balancing test. The military judge listed all the 

relevant Wright factors that impacted his balancing test. We recognize that the military 

judge did not spell out his weighing of these factors, but instead summarily found that the 

probative value of JP’s testimony was not substantially outweighed by the danger of unfair 

prejudice. See United States v. Dewrell, 55 M.J. 131, 138 (C.A.A.F. 2001) (noting that a 

military judge is not required to make detailed findings of fact under Mil. R. Evid. 403, but 

must, nevertheless, fully evaluate the evidence and make a clear record of the reasoning 

behind its findings). We conclude the military judge adequately explained his reasoning. 

Even if we give the military judge’s ruling less deference based on the failure to 

thoroughly spell out his application of the Wright factors, we still concur with his 

conclusion. Applying the Wright factors on our own, we also find that the probative value 

of JP’s testimony was not outweighed by the danger of unfair prejudice. 

Strength of proof of the prior act. JP’s testimony reflected direct and detailed 

evidence from the victim of Appellant’s prior acts.

Probative weight of the evidence. JP’s testimony demonstrated Appellant’s 

predisposition to commit sexual acts toward young boys in his care, a fact that directly 

helped prove the charged indecent acts. Appellant asserts that the two acts were 

sufficiently different to render the earlier acts less probative because Appellant took 

pictures in the charged acts and there is no evidence he took pictures in the prior acts. We 

disagree that the absence of photos renders the earlier acts any less probative.
52 ACM 38346 

Potential for less prejudicial evidence. We see no less prejudicial evidence that 

could be admitted to prove Appellant’s prior acts.

Potential distraction to the factfinder and time needed for proof of the prior conduct. 

Particularly in a military-judge alone trial, calling one witness to establish Appellant’s prior 

acts did not distract the factfinder or add greatly to the time involved.

Temporal proximity between the charged misconduct and the prior act. We 

recognize the two acts were separated by about 14 years. However, this one factor does 

not outweigh the remaining factors.

Frequency of the acts. JP’s testimony revealed Appellant engaged in sexual acts 

with him often over a period of several years. 

Presence or lack of intervening circumstances. Appellant underwent normal 

military reassignments in between the prior acts and the charged misconduct, but 

otherwise, no specific intervening circumstances are apparent.

Relationship between the parties. No relationship between JP and the victim of the 

charged misconduct was apparent.

Even if we were to grant the military judge less deference, our own weighing of 

these factors convinces us that JP’s testimony survives the Mil. R. Evid. 403 balancing test. 

We find no abuse of discretion in the admission of this evidence.

VIII. Issue VII: Legal and Factual Sufficiency—Possession of Child Pornography

Appellant contends his conviction for possessing child pornography is legally and

factually insufficient in two respects: (1) the evidence did not definitively establish that 

Appellant possessed the charged material within the continental United States, as charged;

and (2) the evidence does not support a finding that Appellant knowingly possessed the 

material during the charged time frame. We disagree.

Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of legal and 

factual sufficiency de novo. United States v. Lane, 64 M.J. 1, 4 (C.A.A.F. 2006). Article 

66(c), UCMJ, requires that we approve only those findings of guilty that we determine to 

be correct in both law and fact. The test for legal sufficiency is whether, when the evidence 

is viewed in the light most favorable to the government, a reasonable factfinder could have 

found Appellant guilty of all elements of the offense, beyond a reasonable doubt. United 

States v. Turner, 25 M.J. 324, 324 (C.M.A.1987) (citing Jackson v. Virginia, 443 U.S. 307, 

319 (1979)). “[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). 
53 ACM 38346 

The test for factual sufficiency is “whether, after weighing the evidence in the record 

of trial and making allowances for not having personally observed the witnesses,” [we are]

convinced of the [appellant]’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325. 

Review of the evidence is limited to the entire record, which includes only the evidence 

admitted at trial and exposed to the crucible of cross-examination. Article 66(c), UCMJ; 

United States v. Bethea, 46 C.M.R. 223, 224–25 (C.M.A. 1973). 

The charge and specification that formed the basis for Appellant’s conviction for 

possessing child pornography reads as follows:

That [Appellant] did, within the continental United States, 

between on or about 2 July 2007 and on or about 12 March 

2012, wrongfully and knowingly possess more than one digital 

image of minors engaging in sexually explicit conduct, which 

conduct was prejudicial to good order and discipline and of a 

nature to bring discredit upon the armed forces.

The Government only charged Appellant with possessing a small number of images of 

child pornography found on his computer media devices. The Government successfully 

admitted many other such images found on Appellant’s devices under Mil. R. Evid. 404(b), 

to show purposes such as intent, knowledge, and absence of mistake or accident. The 

Government also introduced evidence that Appellant’s computer media devices contained 

stories about sexual interactions between men and boys, as well as Internet search terms 

indicative of child pornography.

During its case-in-chief, the Government called the examiner who analyzed 

Appellant’s computer media to testify about the external computer hard drive on which the 

charged images were found. The examiner testified that the external hard drive was first 

formatted on 11 March 2011. He testified the charged images were recovered as 

“thumbnail” images from this external hard drive, and that the external hard drive was used 

to back up Appellant’s laptop computer. He testified that the charged images were backed 

up to the external hard drive on 22 October 2011, from Appellant’s laptop. The examiner 

testified that the thumbnail images found on the external hard drive, and the fact that these 

thumbnail images were backed up from the laptop, indicated that Appellant viewed the 

images on the laptop. The charged images were not found on the laptop itself, but the 

Government introduced evidence that Appellant purchased this laptop in either February 

or April 2010.31 The examiner also testified that the operating system on the laptop was 

installed in April 2010. The external hard drive on which the charged images were found 

was found in Appellant’s home on 12 March 2012.

Appellant first contends that the evidence did not demonstrate that the offense 

occurred within the continental United States. He asserts that the Government did not 

 

31 The evidence indicates Appellant ordered the computer in February 2010 but was not billed for it until April 2010.
54 ACM 38346 

definitively establish the dates during which the possession occurred, the Government did 

not present evidence that Appellant was actually in the continental United States on these 

dates, and evidence in the record indicates Appellant was out of the country for at least six 

months during the charged time frame. We reject Appellant’s argument and find the 

conviction for possessing child pornography legally and factually sufficient. 

While the charged time frame reached back to 2 July 2007, the evidence at trial 

convincingly demonstrated Appellant possessed the images in question on his laptop, and 

he did not purchase the laptop until February or April 2010. Appellant’s performance 

reports and other personnel documents in the record of trial indicate he was stationed in 

the continental United States from early 2010 through March 2012. Additionally, even if 

he might have been out of the country for brief periods during this time, we have no trouble 

concluding that he continued to possess the charged images when he returned to the United 

States, as they remained on his laptop until at least such time when he backed up the 

laptop’s contents to his external hard drive. There, the images remained until the external 

hard drive was seized in March 2012. Appellant’s possession of child pornography took 

place in the continental United States.

Appellant’s second attack on the sufficiency of his conviction centers on his

contention that he did not knowingly possess the material. He focuses on testimony by the 

computer forensic examiner that the images made their way from Appellant’s laptop to the 

external hard drive “by accident,” and that the thumbnail images were found in the external 

hard drive’s unallocated space. He asserts that this evidence indicates that the charged 

images may have resided on the laptop and the external hard drive without his knowledge. 

He also notes that the charged images were not found on the laptop itself, which he argues 

further supports a theory that he did not knowingly possess the charged images. Finally, 

he notes that the charged images were “thumbnail” images; he asserts this shows that the 

images may have resided on the laptop without his knowledge.

We disagree with Appellant’s contention that the evidence did not prove he 

knowingly possessed the charged images. Regardless of whether Appellant knew the 

images resided on his external hard drive, he knew they resided on his laptop after he 

purchased it in February or April 2010. The examiner’s testimony indicates that the 

thumbnail images appeared in the cache on Appellant’s computer devices because at one 

point Appellant opened the images to view them and later deleted them. The uncharged 

images admitted under Mil. R. Evid. 404(b), the stories found on Appellant’s computer, 

and the search terms Appellant used to search for child pornography convince us that the 

images did not appear on Appellant’s laptop without his knowledge. Viewed in the light 

most favorable to the Government, a reasonable factfinder could have found Appellant

guilty of all elements of this offense beyond a reasonable doubt. Similarly, after weighing 

the evidence in the record of trial and making allowances for not having personally 

observed the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt.
55 ACM 38346 

IX. Issue VIII: Lawfulness of No-Contact Orders

Appellant challenges the lawfulness of the first no-contact order he was convicted 

of violating. He raises four bases for this challenge: (1) the order served no valid military 

purpose, (2) the order was overly broad, (3) the order conflicted with Appellant’s 

constitutional and statutory rights against compulsory self-incrimination, and (4) the order 

unconstitutionally restricted his rights to self-representation and access to witnesses under 

the Sixth Amendment. We disagree.

We review de novo the lawfulness of a military order. United States v. New, 55 

M.J. 95, 106 (C.A.A.F. 2001). The critical “attributes of a lawful order include: 

(1) issuance by competent authority—a person authorized by applicable law to give such 

an order; (2) communication of words that express a specific mandate to do or not do a 

specific act; and (3) relationship of the mandate to a military duty.” United States v. 

Deisher, 61 M.J. 313, 317 (C.A.A.F. 2005). Orders are presumed to be lawful, and 

Appellant bears the burden of demonstrating otherwise. New, 55 M.J. at 106; United States 

v. Hughley, 46 M.J. 152, 154 (C.A.A.F. 1997). Thus, “a subordinate disobeys an order at 

his own peril,” though they may challenge the lawfulness of the order when it is given or 

in later proceedings. United States v. Kisala, 64 M.J. 50, 52 (C.A.A.F. 2006). 

The no-contact order at issue was given by the commander of the Air Force Legal 

Operations Agency (AFLOA) on 24 June 2011, about two months after the initial report to 

AFOSI of an allegation of child sexual abuse against Appellant. In the interim, AFOSI had 

interviewed at least three former “little brothers” of Appellant, but none claimed Appellant 

did anything improper. The no-contact order read, in its entirety, as follows:

1. The Air Force Office of Special Investigations is 

investigating certain criminal misconduct allegedly committed 

by you. Both for your own protection and to safeguard the 

integrity of the ongoing investigation, you are hereby ordered 

to refrain from initiating any contact and/or communication 

with any person whom you know to be associated with “Big 

Brothers Big Sisters,” or whom you know to be associated with 

any mentoring program for minors under age 18, for which you 

are or were a volunteer or employee. This no-contact order 

prohibits your communication with “Big Brothers Big Sisters” 

or similar youth organization employees, volunteers, and staff, 

and with any child you have mentored or are currently 

mentoring, regardless of current age, including with his or her 

family members.

2. This order prohibits all forms of oral or written 

communication, personally or through a third party, including 
56 ACM 38346 

face-to-face contact, telephone, letter, data fax, electronic mail, 

text message, instant message, social networking website, 

other website, or chat room communications. If anyone 

described in paragraph 1 initiates any contact or 

communication with you, you must immediately cease the 

communication and notify me of the facts and circumstances 

surrounding such contact. You shall remain at all times and 

places at least 500 feet away from anyone described in 

paragraph 1 wherever located, including, but not limited to, 

residences, workplaces, and previously used or known 

organization meeting locations.

3. This order will remain in effect for 90 days beginning with 

your receipt of the order, unless earlier terminated. If you 

believe a valid reason exists to modify this order, you may 

contact me in writing to seek modification or termination of the 

order. Should you have any questions regarding the terms and 

conditions of this order, you must contact me in writing with 

your inquiry. Violation of this order will result in disciplinary 

action.

Appellant acknowledged receipt and understanding of this order.32

On 19 July 2011, Appellant’s commander issued a “supplemental clarification” of 

the earlier no-contact order, at the request of Appellant’s trial defense counsel. The 

supplemental order clarified Appellant’s requirements if anyone covered by the no-contact 

order contacted him as follows: “If anyone described in paragraph 1 of the Order initiates 

any contact or communication with you, you must immediately cease the contact or 

communication and notify me, in writing, of the date, time and name of person initiating 

the contact or communication. No other information is required.” The supplemental order 

stated it was to remain in effect until 22 September 2011, unless earlier terminated. 

Appellant again acknowledged receipt and understanding of the supplemental order. The 

order was later amended to run through 20 December 2011. 

On 6 January 2012, more than two weeks after the series of no-contact orders 

expired, Appellant’s commander extended the no-contact order through 5 May 2012. This 

extension did not alter the terms of the original order and its supplemental clarification, 

other than by extending their length. This order averred that the earlier orders were being 

extended because AFOSI had not completed its investigation into Appellant’s alleged 

misconduct.

 

32 The person who served the order on Appellant later informed Appellant that if someone covered by the no-contact 

order contacted him, Appellant was permitted to inform that person that there was a no-contact order in place and that 

he could not speak to the person.
57 ACM 38346 

Appellant was convicted of violating this series of no-contact orders with three 

different people from late 2011 though early 2012. 

Appellant’s first challenge to this series of no-contact orders focuses on the purpose 

of the orders—for Appellant’s protection and to safeguard the integrity of the ongoing 

investigation. Appellant contends that the original order was issued solely on the basis of 

an allegation of misconduct about 14 years earlier, before Appellant entered the Air Force. 

He also states that at the time the initial order was issued, there was no evidence Appellant 

had attempted to obstruct or impede the investigation. Finally, he asserts that the order 

prohibited contact not only with children Appellant had been involved with in the BBBS 

program, but also their family members and BBBS staff members, indicating there was no 

military purpose for such a broad prohibition. 

The military judge denied a motion to dismiss the specifications alleging violations 

of these orders, finding the orders were lawful. Finding that the orders had a valid military 

purpose, he ruled, “Protecting civilians from injury at the hands of military members, and 

preventing tampering with witnesses and evidence, are valid military purposes. [T]he 

orders given the accused were designed to accomplish those purposes.”

Like the military judge, we find the series of no-contact orders served valid military 

purposes. The initial order articulated two valid military purposes: (1) to protect Appellant 

(presumably from allegations of further misconduct), and (2) to safeguard the integrity of 

the ongoing investigation. Protecting servicemembers from themselves and protecting 

others from servicemembers are both equally valid military purposes for a no-contact order. 

United States v. Padgett, 48 M.J. 273, 278 (C.A.A.F. 1998). Protecting the integrity of an 

ongoing criminal investigation is also a legitimate purpose of a no-contact order as it 

furthers the military’s interest in resolving allegations of criminal conduct by its members. 

There may not have been evidence at the time the initial no-contact order was issued that 

Appellant had actually tried to obstruct or impede the investigation, but this is not required. 

“There is no requirement in the law that a commander determine whether improper conduct 

has occurred before prohibiting it and no requirement that a commander determine that a 

member of the command intends to commit an improper act before prohibiting it.” Id. It 

is true that at the time of the initial no-contact order, the only allegation was by a former 

“little brother” of misconduct that took place about 14 years earlier. Nonetheless, AFOSI 

learned early in its investigation that Appellant had extensive involvement in the BBBS 

program and that he had recently been disenrolled for violations of the program’s rules 

regarding contact with minors. Appellant’s commander was faced with a situation that 

required extensive investigation to determine the breadth and depth of Appellant’s possible 

misconduct. As the investigation proceeded, additional misconduct came to light, 

requiring extensions of the initial order. Under these circumstances, we have no trouble 

concluding that the commander possessed a valid military purpose for issuing the series of 

no-contact orders. 
58 ACM 38346 

Appellant next argues that the initial order, as clarified and extended, was overly 

broad in two ways: (1) the orders prohibited all communication, rather than 

communication that might intimidate or influence any person connected with the 

investigation; and (2) the series of orders restricted access to people such as family 

members of BBBS children and BBBS staff members, while Appellant’s commander had 

no reason to believe communication with these people might have affected the 

investigation. We reject this argument. Appellant’s misconduct caused the Air Force to 

conduct a lengthy, detailed investigation. Until the extent of Appellant’s misconduct was 

known, the Air Force had a legitimate reason to issue a broad order prohibiting 

communication with anyone associated with BBBS or similar mentoring programs. The 

series of orders prohibited contact with a specific class of people tied directly to the scope 

of AFOSI’s investigation. This is, therefore, unlike the order Appellant cites to from 

United States v. Wysong, 26 C.M.R. 29, 31 (C.M.A. 1959), which “sought to place the 

accused in a tight vacuum completely sealed off from all normal communicative exchange 

with those with whom he would be most likely to converse.” We, likewise, see no problem 

with the prohibition against all communication with these individuals, rather than merely 

prohibiting communication about the investigation. Under the circumstances, prohibiting 

all communication with these individuals (many of whom Appellant no longer formally 

mentored through the BBBS program) was not overly broad in scope, nor did it impose an 

unjust limitation on Appellant’s personal rights. This is particularly true given that 

Appellant was not convicted for a one-time, inadvertent violation of the orders, but of 

repeated, long-term violations with several people. Cf. United States v. Moore, 58 M.J. 

466, 468 (C.A.A.F. 2003) (holding that a standing order prohibiting unnecessary 

association by military personnel with civilian employees was not overbroad given the 

context in which the order was issued and the manner in which it was violated); United 

States v. Womack, 29 M.J. 88, 91 (C.M.A. 1989) (determining that an order to practice safe 

sex with all partners, including civilians, was not overly broad).

Appellant’s third attack on the series of no-contact orders is that his constitutional 

and statutory rights against compulsory self-incrimination were violated. He asserts that 

the initial order, as modified, required him to disclose the name of any person initiating 

contact with him, as well as the date and time of that contact. He states he continued to

engage in communication with three individuals who contacted him, and by requiring him 

to disclose the contacts by these people, “it [was] reasonable for [Appellant] to believe that 

if he disclosed the required information, that disclosure would have been used by 

investigators and would have led to the discovery of incriminating information.”

We find no concern that the order, as amended, violated Appellant’s constitutional 

or statutory rights against compulsory self-incrimination. The Fifth Amendment and 

Article 31(a), UCMJ, 10 U.S.C. § 831(a), prohibit the government from compelling a 

servicemember to incriminate themselves. However, not every situation in which the 

government requires a servicemember to divulge potentially incriminating information 

violates the member’s constitutional or statutory rights. In United States v. Heyward, 22 
59 ACM 38346 

M.J. 35 (C.M.A. 1986), the accused challenged an Air Force regulation imposing a 

requirement to report drug use by others. The accused asserted that his conviction for 

dereliction of duty resulting from his violations of this regulation violated his privilege 

against compulsory self-incrimination. Our superior court disagreed. The court noted that 

the regulation did not require the accused to report his illegal acts, and the mere possibility 

that information the accused might disclose could focus investigators’ attention on the 

reporting servicemember was insufficient to invalidate the reporting requirement. Id. at 

37. See also United States v. Medley, 33 M.J. 75 (C.M.A. 1991) (holding a dereliction of 

duty conviction did not violate the right against compulsory self-incrimination, even 

though the accused joined, on other occasions, the criminal acts of those she reported).

We recognize that this case differs from the general regulation at issue in Heyward. 

Here, Appellant’s commander issued a specific order toward a person already suspected of 

misconduct; whereas in Heyward, the regulation was “not aimed at a particular group 

suspected of criminal activity, but instead applie[d] equally to all Air Force members who 

know of drug abuse by others.” Heyward, 22 C.M.R. at 37. However, this concern is 

greatly obviated by the fact that the record contains no evidence Appellant actually made 

disclosures pursuant to these no-contact orders, and he was not charged with dereliction of 

duty or disobeying an order for failing to do so. See United States v. Castillo, 74 M.J. 160 

(C.A.A.F. 2015) (finding no basis for a facial Fifth Amendment challenge to Navy 

regulations based on hypothetical constitutional questions). Instead, Appellant was merely 

charged with violating the terms of the no-contact orders by either contacting people 

covered by the orders or for continuing to engage in communication with them after being 

contacted. Appellant has not shown that he provided incriminating evidence pursuant to 

the disclosure requirement. The “mere possibility” that compliance with the disclosure 

requirement might have led to some incriminating information is an insufficient basis to 

find the orders unlawful, as no criminal liability resulted from the disclosure requirement. 

See United States v. Williams, 27 M.J. 710, 716 (A.C.M.R. 1988) (observing that the Fifth 

Amendment protects “the right not to be criminally liable for one’s previous failure to obey 

a statute which requires an incriminatory act”) (quoting Leary v. United States, 395 U.S. 

6, 28 (1969)).

Finally, Appellant alleges that the order unconstitutionally restricted his rights to 

self-representation and access to witnesses, as guaranteed by the Sixth Amendment. He 

notes he was representing himself in criminal proceedings by the State of Florida on 

charges of traveling to meet a minor for purposes of engaging in sexual activity. Because 

of this, he asserts, the no-contact orders unlawfully denied him access to potential witnesses 

relevant to the state proceedings. We reject this argument. 

The Sixth Amendment guarantees the right to represent one’s self in criminal 

proceedings. Faretta v. California, 422 U.S. 806, 836 (1975). The Sixth Amendment also 

provides a person charged with a criminal offense the right to compulsory process to obtain 

defense witnesses. Taylor v. Illinois, 484 U.S. 400, 408–09 (1988). 
60 ACM 38346 

We find the series of no-contact orders did not impose an “unjust limitation” on 

Appellant’s Sixth Amendment rights to represent himself in state proceedings or to obtain 

access to defense witnesses in the state proceedings. United States v. Wartsbaugh, 45 

C.M.R. 309, 314 (C.M.A. 1972). Appellant failed to demonstrate at trial any actual 

limitation on his ability to represent himself or to interview potential defense witnesses in 

the state proceedings against him. See United States v. Nieves, 44 M.J. 96, 99 (C.A.A.F. 

1996) (declining to find an order prohibiting discussions with witnesses unlawful, in part 

because there was “no evidence that appellant ever requested permission to interview [a 

witness] or that such permission was denied”). We, therefore, decline to find the order 

unlawful based on theoretical or hypothetical limitations the order might have placed on 

his Sixth Amendment rights. Womack, 29 M.J. at 91. Additionally, at the time the initial 

no-contact order was issued, no state criminal proceedings had been initiated against 

Appellant. While state charges were later brought, the last extension in this series of nocontact orders expired on 5 May 2012, and Appellant has not alleged that the state 

proceedings required him to interview witnesses or otherwise prepare for trial before the 

final extension expired. In fact, our review of the record reveals it is extremely unlikely 

that Appellant required access to any potential witnesses for the state proceedings before 5 

May 2012. Finally, the record reveals that Appellant’s defense counsel in the court-martial 

were repeatedly able to interview potential witnesses in the state criminal proceedings. 

There is no reason Appellant could not have used information learned in those interviews 

to prepare for the state proceedings.

In summary, the series of no-contact orders served valid military purposes, was not 

overly broad, did not conflict with Appellant’s constitutional and statutory rights against 

compulsory self-incrimination, and did not impermissibly curtail Appellant’s Sixth 

Amendment rights to self-representation and access to witnesses. The series of orders was 

reasonably drawn to allow AFOSI to investigate Appellant’s suspected misconduct without 

the risk of interference from Appellant and to protect Appellant. Appellant has not met his 

burden of demonstrating the series of orders was unlawful.

X. Issue IX: Lawfulness of Additional No-Contact Order

On 10 November 2011, while the series of no-contact orders discussed above was 

in effect, Appellant’s commander issued an additional no-contact order. This order was 

directed solely at Appellant’s contact with AP, as AP had just provided a statement that he 

and Appellant had engaged in a sexual relationship. This order directed Appellant to 

refrain from “contacting and/or communicating with” AP through a variety of means. It 

also required that if AP initiated contact with Appellant, Appellant must immediately cease 

communication with AP and notify the commander of the facts and circumstances 

surrounding such contact. Appellant promptly violated this order by communicating with 

AP, and he continued to violate the order over a prolonged period until he was caught in a 

car with AP, leading to his placement in pretrial confinement.
61 ACM 38346 

Appellant now alleges that the 10 November 2011 no-contact order was unlawful 

based on the same alleged deficiencies as those discussed immediately above. We 

summarily reject Appellant’s argument based on the legal framework and analysis 

discussed above. Valid military purposes existed for the order, as AP had just stated he 

and Appellant had been engaged in a prolonged sexual relationship. The fact that AP later 

recanted his statement under suspicious circumstances does not alter the fact that this 

matter needed to be investigated free of interference by Appellant. The no-contact order 

was not overbroad under the analysis above, particularly because it only related to 

Appellant’s contact with one person. The order’s requirement to report any contact by AP 

does not violate Appellant’s right to be free from compulsory self-incrimination. Again, 

there is no evidence Appellant ever reported contact with AP, and he was not charged with 

violating this provision of the order. Finally, the order did not impermissibly impact his 

ability to interview witnesses and prepare for his defense in state proceedings. We see no 

reasonable possibility based on the record that Appellant had a valid need to interview AP 

before the no-contact order expired. Appellant is not entitled to relief under this assignment 

of error.

XI. Issues X and XXVI: Unreasonable Multiplication of Charges and

Ineffective Assistance of Counsel

Appellant’s next assignment of error alleges that two specifications of committing 

an indecent act with a male under 16 years of age constituted an unreasonable 

multiplication of charges for both findings and sentencing purposes.33 The first of the 

specifications alleged that Appellant placed his fingers on the buttocks of the sibling of one 

of Appellant’s “little brothers” on or about 10 June 2005. The second of the specifications 

alleged that he placed his fingers on the same child’s penis on the same date. Appellant 

argues that because the evidence indicated the two actions occurred within a short time of 

each other, the military judge should have merged the two specifications for findings and 

sentencing purposes. He also notes that the Article 32, UCMJ, investigating officer raised 

the issue of unreasonable multiplication of charges and suggests the Government’s failure 

to resolve this issue in Appellant’s favor constitutes evidence of prosecutorial 

overreaching. We disagree.

“A military judge’s decision to deny relief for unreasonable multiplication of 

charges is reviewed for an abuse of discretion.” United States v. Campbell, 71 M.J. 19, 22 

(C.A.A.F. 2012). Courts may apply the doctrine of unreasonable multiplication of charges 

to dismiss certain charges and specifications. R.C.M. 307(c)(4) summarizes this principle 

as follows: “What is substantially one transaction should not be made the basis for an 

unreasonable multiplication of charges against one person.” The principle provides that 

the government may not needlessly “pile on” charges against an accused. United States v. 

Foster, 40 M.J. 140, 144 n.4 (C.M.A. 1994). Our superior court has endorsed the following 

 

33 Appellant does not allege that these two specifications constitute multiplicious charging in violation of the double 

jeopardy clause of the Constitution. 
62 ACM 38346 

non-exhaustive list of factors to consider in determining whether unreasonable 

multiplication of charges has occurred:

(1) Did the [appellant] object at trial that there was an 

unreasonable multiplication of charges and/or specifications?;

(2) Is each charge and specification aimed at distinctly 

separate criminal acts?;

(3) Does the number of charges and specifications 

misrepresent or exaggerate Appellant’s criminality?;

(4) Does the number of charges and specifications 

[unreasonably] increase Appellant’s punitive exposure?; and

(5) Is there any evidence of prosecutorial overreaching or 

abuse in the drafting of the charges?

United States v. Quiroz, 55 M.J. 334, 338–39 (C.A.A.F. 2001) (quoting United States v.

Quiroz, 53 M.J. 600, 607 (N.M. Ct. Crim. App. 2000)) (line breaks added and quotation 

marks omitted). “[U]nlike multiplicity—where an offense found multiplicious for findings 

is necessarily multiplicious for sentencing—the concept of unreasonable multiplication of 

charges may apply differently to findings than to sentencing.” Campbell, 71 M.J. at 23. In 

a case where the Quiroz factors indicate unreasonable multiplication of charges principles 

affect sentencing more than findings, “the nature of the harm requires a remedy that focuses 

more appropriately on punishment than on findings.” Quiroz, 55 M.J. at 339.

Applying the Quiroz factors, we find these two specifications do not represent an 

unreasonable multiplication of charges. Appellant inappropriately touched the child in two 

distinct ways. These two actions might have been separated by a short period of time, but 

they were still separated. Thus, Appellant’s misconduct involved two distinctly separate 

criminal acts, and charging them separately did not misrepresent his criminality. Charging 

these actions under two separate specifications increased Appellant’s punitive exposure, 

but not unreasonably so, particularly in a case where the findings resulted in a maximum 

punishment to confinement of 47 years. We also find no evidence of prosecutorial 

overreaching or abuse in the drafting of the charges. The mere fact that the Article 32, 

UCMJ, investigating officer recommended merging the two specifications causes no 

inference of prosecutorial overreaching or abuse. Rather, this represents a situation where 

the convening authority and staff judge advocate reasonably disagreed with the 

investigating officer’s recommendation. The two specifications do not represent an 

unreasonable multiplication of charges.
63 ACM 38346 

Appellant’s Grostefon claim of ineffective assistance of counsel on this issue alleges 

that his trial defense counsel should have moved for relief on this issue at trial. He alleges 

that because they did not do so, his chances of prevailing on this issue on appeal are 

diminished because the first Quiroz factor asks whether Appellant objected at trial. We 

find no ineffective assistance of counsel for at least two reasons. First, for the reasons 

discussed above, there was no unreasonable multiplication of charges, and thus no reason 

for his trial defense counsel to move for relief and no prejudice resulted from their failure 

to do so. Second, our resolution of this issue does not rest on the first Quiroz factor. Even 

if Appellant had objected at trial, the remaining Quiroz factors would cause us to find no 

unreasonable multiplication of charges existed. Appellant was not denied effective 

assistance of counsel. 

XII. Issue XI: Imposition of Pretrial Confinement

As noted above, Appellant was placed in pretrial confinement in March 2012, after 

he was found in a car with AP in violation of a no-contact order. Within 48 hours of 

imposition of pretrial confinement, the required probable cause determination was 

completed by the AFLOA commander. R.C.M. 305(i)(1). Within seven days of imposition 

of pretrial confinement, the required review of pretrial confinement was conducted by a 

lieutenant colonel who was a subordinate of the general officer who ordered Appellant into 

pretrial confinement. R.C.M. 305(i)(2). Appellant argued at trial that neither official was 

neutral and detached, as required under the Rules for Courts-Martial. The military judge 

disagreed, and so do we.

We review a military judge’s ruling on the legality of pretrial confinement for abuse 

of discretion. United States v. Wardle, 58 M.J. 156, 157 (C.A.A.F. 2003). “There is an 

abuse of discretion when a military judge applies an erroneous view of the law.” Id. 

R.C.M. 305(d) states that no person may be ordered into pretrial confinement except 

when there is a reasonable belief that an offense triable by court-martial has been 

committed, the person confined committed it, and confinement is required by the 

circumstances. R.C.M. 305(i) requires neutral and detached officers to conduct two 

reviews of this probable cause determination to support continued pretrial confinement. 

R.C.M. 305(k) provides that the remedy for noncompliance with R.C.M. 305(i) “shall be 

an administrative credit against the sentence adjudged for any confinement served as the 

result of such noncompliance.” 

The requirement for prompt review by a neutral and detached officer supports the 

Fourth Amendment’s right of the people to be secure in their persons against unreasonable 

seizures. County of Riverside v. McLaughlin, 500 U.S. 44, 60 (1991); Gerstein v. Pugh, 

420 U.S. 103, 112–13 (1975); United States v. Rexroat, 38 M.J. 292, 294 (C.M.A. 1993); 

Courtney v. Williams, 1 M.J. 267, 270–71 (C.M.A. 1976). An officer is not neutral and 

detached when he or she becomes too directly involved with law enforcement such that the

officer cannot perform his or her duties with a judicial attitude rather than a law 
64 ACM 38346 

enforcement attitude. United States v. Ezell, 6 M.J. 307, 315 (C.M.A. 1979); United States 

v. Redlinski, 56 M.J. 508, 512 (C.G. Ct. Crim. App. 2001), rev’d in part on other grounds, 

58 M.J. 117 (C.A.A.F. 2003).

We find no abuse of discretion in the military judge’s findings that both reviews 

were conducted by neutral and detached officers. With respect to the 48-hour review 

conducted by the AFLOA commander, commanders are not per se unqualified to act as 

neutral and detached reviewers. Rexroat, 38 M.J. at 296. The only reasons Appellant 

articulates that this particular commander was not neutral and detached are that the 

commander issued the no-contact orders Appellant was accused of violating, and the 

commander was the subject of an Article 138, UCMJ, 10 U.S.C. § 938, complaint by 

Appellant regarding the no-contact orders. However, the no-contact orders formed only 

part of the alleged misconduct by Appellant. We see nothing about the violations of the 

no-contact orders or the Article 138, UCMJ, complaint that would cause any concern that 

the AFLOA commander would be so personally offended that she would lose the ability to 

perform her quasi-judicial role in this matter. Likewise, Appellant points to no statements 

or particular actions by the commander indicating a loss of objectivity. The military judge 

committed no error of law in his finding on this matter, and we find no abuse of discretion.

With regard to the lieutenant colonel conducting the seven-day review, the only 

evidence Appellant cites to indicate the reviewer was not neutral and detached is the fact 

that the reviewer was directly rated by the commander that ordered Appellant into pretrial 

confinement. We decline to create a per se rule that a person in such a situation is not 

neutral and detached. We see nothing in the reviewer’s report to indicate he was anything 

less than conscientious in exercising his independent judgment.34 In addition, there is no 

evidence that the general officer who ordered Appellant into pretrial confinement 

possessed some personal stake in the outcome of the reviewer’s decision. We see no reason 

to believe the reviewer was not neutral and detached. The military judge applied the correct 

legal analysis to this issue at trial, and we find no abuse of discretion in his ruling.

XIII. Issues XII and XXX: Maximum Punishment—Possession of 

Child Pornography

Appellant next contends that the military judge erred in determining the maximum 

punishment for Appellant’s conviction of possessing child pornography under Charge I, 

Specification 1. As he did at trial, Appellant contends that the maximum punishment to 

confinement for this offense should have been confinement for 4 months rather than the 10 

years the military judge determined. We disagree.

 

34 Appellant cites to one line of the reviewer’s report in which he quoted language from the 48-hour memorandum 

without changing the language out of the first person. We are not concerned that the reviewer was acting as a “rubber 

stamp” from this one matter.
65 ACM 38346 

“The maximum punishment authorized for an offense is a question of law, which 

we review de novo.” United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011).

Appellant was charged with wrongfully and knowingly possessing more than one 

digital image of minors engaging in sexually explicit conduct under Article 134, UCMJ. 

In response to a bill of particulars, the Government did not indicate whether the charged 

images merely appeared to be minors or were actually verified to be minors. Therefore, 

relying on Beaty, trial defense counsel argued that the maximum punishment provided for 

in 18 U.S.C. § 2252A did not apply because the specification failed to allege that the 

children in the images were actual minors. Instead, trial defense counsel asserted, the most 

closely analogous offense to be used for determining the maximum punishment was a 

simple disorder, carrying with it a maximum sentence to confinement of 4 months. The 

military judge ruled against Appellant, and Appellant renews this argument on appeal.

Consistent with Beaty and United States v. Finch, 73 M.J. 144, 148 (C.A.A.F. 2014), 

when all the elements of a federal crime, except the jurisdictional element, are included in 

a Clause 1 or 2, Article 134, UCMJ, specification, the analogous federal statute provides 

the maximum punishment. Id. at 147–48 (quoting United States v. Leonard, 64 M.J. 381, 

384 (C.A.A.F. 2007)); see also R.C.M. 1003(c)(1)(B)(ii) (providing that an offense not 

listed in or closely related to one listed in the Manual is punishable as authorized by the 

United States Code).

Unlike the specification in Beaty, the specification here did not allege that the 

images were of only “what appears to be” minors. Moreover, Beaty reaffirmed that it was 

not an abuse of discretion to use the analogous United States Code maximum for a 

specification alleging possession of “visual depictions of minors engaging in sexually 

explicit activity.” Beaty, 70 M.J. at 42. The specification here used substantially identical 

language to that approved in Beaty. Therefore, the charged crime here is punishable as 

authorized by the United States Code provision criminalizing possession of “child 

pornography,” which carries a maximum sentence to confinement of 10 years. The term 

“child pornography” includes any visual depiction of sexually explicit conduct where (1) 

the visual depiction involves “the use of a minor engaging in sexually explicit conduct” or 

(2) the “visual depiction is a digital image, computer image, or computer-generated image 

that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” 

18 U.S.C. § 2256(8)(A), (B) (emphasis added). Consistent with this definition of child 

pornography, the specification alleges the wrongful and knowing possession of video and 

photographic visual depictions of “minors” engaging in sexually explicit conduct. 

Therefore, the military judge correctly used the punishment authorized for possession of 

child pornography under 18 U.S.C. § 2252A(a)(5) for purposes of determining the 

maximum punishment. 

We have also examined Appellant’s Grostefon submission regarding this issue, 

which focuses on the language used in the Government’s response to the bill of particulars. 
66 ACM 38346 

We see nothing in the Government’s response to the bill of particulars that indicates that 

the Government’s theory was anything other than that Appellant possessed digital images 

of actual minors.

XIV. Issue XIII: Completeness of Record of Trial

Appellant alleges the record of trial is not substantially complete because it fails to 

contain his motion in limine filed at trial to exclude DP’s testimony under Mil. R. Evid. 

404(b). Therefore, he asserts, this court should approve a sentence that does not exceed 

that set forth in Article 54(c)(1)(B), UCMJ, 10 U.S.C. § 854(c)(1)(B). We disagree.

The transcript of Appellant’s court-martial indicates the Defense filed a written 

motion to exclude DP’s testimony. However, the record does not indicate that this motion 

was ever marked as an exhibit, and the record of trial contains no such motion.

“Whether a record is complete and a transcript is verbatim are questions of law that 

[we review] de novo.” United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2013). 

Article 54(c)(1), UCMJ, requires a “complete record of the proceedings and testimony” to 

be produced in every “general court-martial in which the sentence adjudged includes death, 

a dismissal, a discharge, or (if the sentence adjudged does not include a discharge), any 

other punishment which exceeds that which may otherwise be adjudged by a special courtmartial.” The parties agree this requirement applies to Appellant’s case. They also agree 

that trial defense counsel apparently filed a motion in limine to exclude DP’s testimony, 

and that this motion is absent from the record of trial. They disagree as to the effect of this 

omission.

A “complete” record must include the exhibits that were received in evidence, along 

with any appellate exhibits. R.C.M. 1103(b)(2)(D)(v). In assessing whether a record is 

complete, the threshold question is “whether the omitted material is substantial, either 

qualitatively or quantitatively.” Davenport, 73 M.J. at 377 (quoting United States v. 

Lashley, 14 M.J. 7, 9 (C.M.A. 1982) (quotation marks omitted)). A substantial omission 

from the record of trial renders it incomplete; conversely, an insubstantial omission does 

not render a record of trial incomplete. United States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 

2000). “[O]missions are qualitatively substantial if the substance of the omitted material 

‘related directly to the sufficiency of the Government’s evidence on the merits’ and ‘the 

testimony could not ordinarily have been recalled with any degree of fidelity.’” Davenport, 

73 M.J. at 377 (quoting Lashley, 14 M.J. at 9). “Omissions are quantitatively substantial 

unless ‘the totality of omissions . . . becomes so unimportant and so uninfluential when 

viewed in the light of the whole record, that it approaches nothingness.’” Id. (quoting 

United States v. Nelson, 13 C.M.R. 38, 43 (C.M.A. 1953)).

Failure to produce a complete record “does not necessarily require reversal. Rather, 

an incomplete or non-verbatim record . . . raises a presumption of prejudice which the 
67 ACM 38346 

Government may rebut.” United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999) 

(quoting MCM, app. 21 at A21-77 (1998 ed.)). If the omission is substantial, thereby 

raising a presumption of prejudice, the government may rebut the presumption by 

reconstructing the missing material. See United States v. Garries, 19 M.J. 845, 852 

(A.F.C.M.R. 1985) (holding that the government rebutted the presumption of prejudice 

through reconstructed testimony), aff’d, 22 M.J. 288 (C.M.A. 1986). But see United States 

v. Snethen, 62 M.J. 579, 581 (A.F. Ct. Crim. App. 2005) (holding the reconstruction of the 

missing witness testimony was insufficient to overcome the presumption of prejudice, 

because of the importance of the lost testimony and arguments, the lengthy duration of the 

unrecorded portion of the proceedings, and the length of time between trial and 

reconstruction).

Applying these standards, we find the missing Defense motion in limine does not 

constitute a substantial omission. As an initial matter, it does not appear that the Defense 

motion was ever marked as an appellate exhibit, meaning the Government was not required 

to include it in the record of trial. Assuming the military judge should have marked the 

motion as an appellate exhibit, its omission did not render the record of trial incomplete. 

The substance of the Defense motion was discussed in an Article 39(a), UCMJ, 10 U.S.C. 

§ 839(a), session. The thrust of the Defense’s position was made clear on the record. In 

addition, we have found that the military judge erred in admitting this testimony (although 

we found no material prejudice to a substantial right resulting from the error). Therefore, 

as we have sided with Appellant on the issue he raised at trial, we see no way he could be 

prejudiced as a result of the omission of the written motion. We find Appellant is not 

entitled to relief on this issue.

XV. Issue XIV: Cumulative Effect of Errors

Appellant avers that cumulative effect of the errors that occurred at trial should 

compel us to set aside the findings and sentence. As support for this position, Appellant 

cites the numerous assignments of error raised in his brief. He also asserts that the military 

judge failed to conduct sufficient analysis while ruling on several motions and objections, 

which should lead this court to decline to apply the standard presumption that military 

judges are presumed to know and follow the law.

As our sister court has observed, the law “requires us to evaluate the fairness of 

Appellant’s trial using the cumulative error doctrine.” United States v. Parker, 71 M.J. 

594, 630 (N.M. Ct. Crim. App. 2012) (citing United States v. Dollente, 45 M.J. 

234, 242 (C.A.A.F. 1996); United States v. Banks, 36 M.J. 150, 171 (C.M.A. 1992)). We 

must evaluate the errors against the background of the whole case, giving particular

attention to “the nature and number of the errors committed; their interrelationship, if any, 

and combined effect; how the [trial] court dealt with the errors as they arose (including the 

efficacy of any remedial efforts); and the strength of the government’s case.” Id. (quoting 

Dollente, 45 M.J. at 242).
68 ACM 38346 

We have reviewed Appellant’s assignments of error, including those raised pursuant 

to Grostefon. We have found only one non-prejudicial error involving the admission of 

testimony by Appellant’s ex-wife pursuant to Mil. R. Evid. 404(b). Apart from this one 

matter, we have found no error (prejudicial or otherwise) in the military judge’s rulings. 

The Government introduced ample evidence of Appellant’s guilt on all charges and 

specifications, and Appellant was not denied a fair trial. Our finding of one prejudicial 

error does not warrant application of the cumulative error doctrine. United States v. Pope, 

69 M.J. 328, 335 (C.A.A.F. 2011); Dollente, 45 M.J. at 242.

XVI. Issue XV: Ineffective Assistance of Counsel—Failure to Raise 

Legal Errors in Clemency

Appellant alleges that he received ineffective assistance of counsel when his trial 

defense attorneys did not raise any legal errors for the convening authority’s consideration 

during clemency, even though the trial defense team raised 18 motions during trial. 

Applying the standard set forth in Issue II above, we summarily reject this assignment of 

error. 

Counsel have broad discretion to determine the approach they believe will be most 

effective in petitioning for clemency; no requirement exists to allege legal errors simply 

because the issues were raised at trial. Trial defense counsel put together a voluminous 

and impassioned plea for clemency to the convening authority. Pursuant to this court’s 

order, trial defense counsel also submitted declarations that explained their strategy for 

approaching the clemency request. They explained that, in their view, a more compelling 

approach was to focus on the impact of the findings and sentence on Appellant. This 

represents a reasonable approach, and this court “will not second-guess the strategic or 

tactical decisions made at trial by defense counsel.” United States v. Mazza, 67 M.J. 470, 

475 (C.A.A.F. 2009). We find trial defense counsel were not ineffective in electing not to 

raise allegations of legal error to the convening authority. Even presuming they were 

ineffective, no prejudice resulted, particularly where we have found no basis for relief in 

any of the alleged legal errors raised at trial. 

XVII. Issue XVI: Referral—Compliance with Rule for Courts-Martial 601(d)(2)(A)

Appellant alleges, pursuant to Grostefon, that the charges and specifications were 

improperly referred to a general court-martial. He asserts that he did not receive a full 

opportunity to cross-examine witnesses and have witnesses and evidence produced during 

the investigation. Therefore, he contends, the Government did not substantially comply 

with R.C.M. 405(f), which sets forth the rights of an accused at an Article 32, UCMJ, 

hearing.35 In turn, he argues, the convening authority’s referral of charges was deficient 

 

35 Article 32, UCMJ, 10 U.S.C. § 832 and R.C.M. 405 were revised subsequent to the investigation conducted in this 

case. All references in this opinion are to the versions in place at the time of Appellant’s investigation.
69 ACM 38346 

because R.C.M. 601(d)(2)(A) provides that a convening authority may not refer a 

specification to a general court-martial unless there has been substantial compliance with 

R.C.M. 405.

Whether a court-martial possessed jurisdiction over an appellant is a question we 

review de novo. United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005). Proper 

referral is a jurisdictional prerequisite to a court-martial. United States v. Ballan, 71 M.J. 

28, 32 (C.A.A.F. 2012); R.C.M. 201(b)(3). 

Appellant argues that the Government did not substantially comply with R.C.M. 

405(f), because he requested the production of four witnesses at the investigatory hearing 

and both the special court-martial convening authority and the investigating officer denied 

the request. He also avers that his ability to cross-examine a Government witness was 

impaired because the witness repeatedly stated that he did not know the answers to certain 

questions the Defense posed. Finally, he protests that he repeatedly requested the 

production of the AFOSI report of investigation, but the Government did not provide this 

report until after the Article 32, UCMJ, investigation. We disagree that the Government 

failed to substantially comply with R.C.M. 405(f); therefore, we find no jurisdictional 

defect with the referral of this case to a general court-martial.

Appellant raised this issue before the military judge, who rejected the motion for a 

new Article 32, UCMJ, investigation. The military judge noted the following:

There is no evidence that the Defense objected at the Article 

32 hearing to any failure to provide the requested witnesses. 

The Defense did not submit the written objections prior to 

completion of the [investigating officer’s] report. Nor did the 

Defense afterward submit objections to the Convening 

Authority.

. . . .

The Defense failure to make timely objection constitutes 

waiver under [R.C.M.] 405(k). And the Defense does not 

offer, nor can this Court find, “good cause for relief from the 

waiver.”

Because Appellant did not object to the Article 32, UCMJ, investigation, Appellant’s

argument that the Government failed to substantially comply with R.C.M. 405(f) is waived. 

Setting aside the issue of waiver, Appellant’s claim fails on more fundamental 

grounds. Our review of the Article 32, UCMJ, investigation reveals that Appellant 

received ample opportunity to cross-examine witnesses and have witnesses and evidence 

produced. The witnesses he requested who were not produced at most could have testified 
70 ACM 38346 

to their decision-making process in issuing the no-contact orders. However, the no-contact 

orders themselves contained ample detail about the reasons the orders were issued, and 

there is no reason to believe these witnesses would have added anything of significance to 

this issue. As to the AFOSI report of investigation, Appellant might not have been given 

the formal, finalized report, but key documents from that report were included in the 

investigation. The summarized witness statements provide no indication that the Defense 

was hampered in any way from representing Appellant at the investigatory hearing. As the 

military judge found, “At no time has the Defense made any showing as to how testimony 

of the requested witnesses, [or] the AFOSI investigatory material, would be relevant and 

non-cumulative. Nor is there any reason to believe that it would affect the referral decision 

of the convening authority.” Appellant may now wish he had access to additional 

information or witnesses, but we have no trouble concluding that the Government complied 

with R.C.M. 405(f) and the convening authority was authorized to refer this case to a 

general court-martial.

XVIII. Issue XVIII: Ineffective Assistance of Counsel—Failure to Object to the 

Article 32, UCMJ, Investigation

As an alternative argument to the issue immediately above, Appellant argues his 

trial defense counsel were ineffective by failing to file objections to the Article 32, UCMJ, 

investigation. He asserts that had his counsel filed such objections, the military judge 

would not have found that he waived his jurisdictional objection concerning the convening 

authority’s referral decision. Applying the standards set forth in Issue II above, we find no 

ineffective assistance of counsel. The record reveals Appellant was ably represented at the 

Article 32, UCMJ, investigation. In fact, trial defense counsel’s representation convinced 

the investigating officer to not recommend going forward on one serious charge and 

specification that had been preferred. The convening authority accepted this 

recommendation. We find that trial defense counsel’s overall performance at the Article 

32, UCMJ, hearing was not “unreasonable under prevailing professional norms.” United 

States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006). In addition, we find no prejudice to 

Appellant from any claimed ineffectiveness of counsel. As noted above, our decision as 

to the convening authority’s referral does not rest on the lack of objection to the Article 32, 

UCMJ, investigation. Rather, Appellant failed to demonstrate that the requested witnesses 

were relevant, and there is no reason to believe he received anything less than a full and 

fair investigation. Appellant has not demonstrated that his counsel’s failure to file 

objections to the Article 32, UCMJ, investigation represents ineffective assistance of 

counsel.

XIX. Issue XIX: Statute of Limitations—Possession of Child Pornography

Charge I, Specification 1 alleged that Appellant wrongfully and knowingly 

possessed more than one digital image of minors engaging in sexually explicit conduct. 
71 ACM 38346 

The charged time frame ran between on or about 2 July 2007 and on or about 12 March 

2012. The summary court-martial convening authority signed for receipt of this charge 

and specification on 2 July 2012. Under Article 43, UCMJ, 10 U.S.C. § 843, the statute of 

limitations for this offense is five years before the receipt of charges by the summary courtmartial convening authority. Appellant did not raise any issue concerning the statute of 

limitations for this charge and specification at trial. However, he now alleges that his 

conviction for this charge and specification violates the statute of limitations because the 

specification alleged that the misconduct began “on or about” 2 July 2007, leading to a 

possibility that he was convicted for misconduct that began more than five years before the 

receipt of charges. At a minimum, Appellant asserts that the military judge had an 

affirmative obligation to address this issue with Appellant on the record.

The interpretation of the statute of limitations is a question of law we review de 

novo. United States v. Cimball-Sharpton, 72 M.J. 777, 782 (A.F. Ct. Crim. App. 2013). 

On the one hand, “questions about whether certain conduct occurred within the limitations 

period or other relevant circumstances appear to be questions of fact. These preliminary 

fact decisions will not be reversed unless clearly erroneous.” United States v. Sills, 56 M.J. 

556, 562 (A.F. Ct. Crim. App. 2001) (quotation marks omitted), vacated on other grounds, 

56 M.J. 239 (C.A.A.F. 2002). However, the rights accorded under the statute of limitations 

may be waived when the accused, with full knowledge of the privilege, fails to plead the 

statute in bar of the prosecution. United States v. Toxell, 30 C.M.R. 6 (C.M.A. 1960).

Regardless of the standard of review, Appellant cites two decisions by our superior 

court that he asserts required the military judge to sua sponte advise Appellant concerning 

the statute of limitations—United States v. Salter, 20 M.J. 116 (C.M.A. 1985) and United 

States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004). He asserts that because the military 

judge did not so advise him, this court should review his complaint regarding the statute of 

limitations de novo. Under that standard, he asserts that the statute of limitations was 

violated because the evidence indicated Appellant may have possessed the images 

sometime prior to 2 July 2007. We reject Appellant’s argument.

As an initial matter, we find the military judge had no sua sponte duty to advise 

Appellant concerning the statute of limitations. In Salter, the court reaffirmed its longstanding position that “‘whenever it appears that the statute of limitations has run against 

an offense,’ that fact will be brought to the attention of the accused by the court.” Salter, 

20 M.J. at 117 (quoting United States v. Rodgers, 24 C.M.R. 36, 38 (C.M.A. 1957)). This 

rule was designed to prevent the application of the waiver doctrine in a situation where 

“the record does not disclose that [the accused] was aware of that right.” Id. Likewise, in 

Thompson, our superior court stated,

When the evidence reasonably raises issues concerning a 

lesser-included offense or the statute of limitations, the military 

judge is charged with specific affirmative responsibilities. . . .

The military judge has an affirmative obligation to advise an 
72 ACM 38346 

accused of the right to assert the statute of limitations, and must 

determine that any waiver of the statute of limitations bar is 

both knowing and voluntary.

Thompson, 59 M.J. at 439 (citations omitted). This requirement is also captured in R.C.M. 

907(b)(2)(B), which states that a charge or specification shall be dismissed upon motion if 

“[t]he statute of limitations (Article 43) has run, provided that, if it appears that the accused 

is unaware of the right to assert the statute of limitations in bar of trial, the military judge 

shall inform the accused of this right.”

The principle set forth in these authorities provides Appellant no basis for relief. 

The charge and specification limited the charged time frame to the period of five years 

before the receipt of charges. Thus, to use the language from Salter, it did not appear that 

the statute of limitations had run, and the military judge had no obligation to advise 

Appellant concerning the statute of limitations (particularly when Appellant had already 

raised a statute of limitations motion concerning other charges and specifications). Under 

these facts, the military judge was not required to advise Appellant concerning the statute 

of limitations, because there was no reason for him to believe an issue regarding the statute 

of limitations was present. 

Because the military judge was not required to advise Appellant regarding this issue, 

Appellant either waived or forfeited this issue by failing to raise this issue at trial. Even 

under a de novo review, however, we find no problem concerning the statute of limitations. 

The charge sheet properly limited the charged time frame to a period within the statute of 

limitations. Even if an argument could be made that the “on or about” language concerning 

the 2 July 2007 date created some theoretical possibility that Appellant was convicted of 

offenses that began before 2 July 2007, the facts of this case do not support such a concern. 

The Government’s expert convincingly demonstrated that Appellant possessed these files 

well after 2 July 2007. We reject this assignment of error.

XX. Issue XX: Denial of Request to Detail Individual Military Defense Counsel

While the investigation was proceeding, Appellant submitted a by-name request to 

have Major (Maj) NM detailed as an individual military defense counsel. The Chief Senior 

Defense Counsel denied that request, noting Maj NM was stationed in California and the 

proceedings were in Florida. The Chief Senior Defense Counsel stated the distance, plus 

Maj NM’s other responsibilities, precluded him from being reasonably available. 

Appellant appealed this decision to the Chief of the Trial Defense Division. That official 

granted the appeal, detailing Maj NM to represent Appellant. 

While this matter was pending, Appellant submitted an additional by-name request 

to have Lieutenant Colonel (Lt Col) JP detailed to his defense team. Because Lt Col JP 

served as a Chief Senior Defense Counsel, the Chief of the Trial Defense Division was the 

decision-making official for this request. That official denied the request, noting that she 
73 ACM 38346 

had instead detailed Maj MM, one of the division’s “most seasoned defenders” and a 

person with “the qualifications and experience for the charges that have been referred to 

trial.” The deciding official also cited the distance between Lt Col JP’s home station and 

Tyndall AFB and Lt Col JP’s workload as factors that influenced her decision.

At trial, Appellant challenged the decision to deny detailing Lt Col JP. The military 

judge found there was no abuse of discretion or impropriety in the deciding official’s 

action. The military judge concurred that Lt Col JP was not reasonably available to serve 

as individual military defense counsel in this case. Appellant re-raises this challenge on 

appeal.

We examine the denial of requested counsel and the military judge’s review of such 

denial for an abuse of discretion. United States v. Anderson, 36 M.J. 963, 973 (A.F.C.M.R. 

1993). 

Article 38(b), UCMJ, 10 U.S.C. § 838(b), provides that an accused may be 

represented “by military counsel of his own selection if that counsel is reasonably 

available,” as determined under service regulations defining the term “reasonably 

available,” and establishing procedures for making this determination. R.C.M. 506(b)(1) 

reiterates this direction, and sets out certain categories of persons not considered reasonably 

available because of the nature of their duties or positions. None of those categories applies 

to the instant case. R.C.M. 506(b)(1) then states that the service Secretary concerned “may 

determine other persons to be not reasonably available because of the nature or 

responsibilities of their assignments, geolineart considerations, exigent circumstances, or 

military necessity.” R.C.M. 506(b)(2) provides that if the person requested does not fall 

within one of the categories listed as not being reasonably available, the convening 

authority shall forward the request to the head of the requested person’s organization to 

make an administrative determination whether the requested person is reasonably available 

in accordance with service procedures. The rule provides, “This determination is a matter 

within the sole discretion of that authority.”

Air Force Instruction (AFI) 51-201, Administration of Military Justice, ¶ 5.4.2 (21 

December 2007), set forth additional categories of persons not ordinarily considered to be 

reasonably available. Lt Col JP did not fall within one of these categories. The instruction 

provides that a counsel is reasonably available if “the appropriate approval authority 

determines the requested counsel can perform the duties . . . without unreasonable expense 

or detriment to the United States and without unreasonable delay in the proceedings.” AFI 

51-201, ¶ 5.4.3. That paragraph further provides the following factors for the approval 

authority to consider in making this determination:

The duties, workload, and assignment status of the 

requested counsel;
74 ACM 38346 

The experience level, duties, and workload of the 

military counsel already detailed to represent the 

accused;

The nature and complexity of the charges and legal 

issues involved in the case;

Whether a certified assistant trial counsel is detailed to 

the case;

The workload of the office to which the requested 

counsel is assigned and the availability of personnel to 

meet those demands;

The distance from the expected site of the proceedings; 

and

Whether requested counsel is likely to be a necessary 

witness at trial or is otherwise conflicted from 

representing the accused.

We find no abuse of authority in the decision by the Chief of the Trial Defense 

Division to deny detailing Lt Col JP to Appellant’s defense team. At the time the decision 

was made, Appellant was represented by an area defense counsel and a senior defense 

counsel. The deciding official specifically noted that she considered the criteria laid out in 

AFI 51-201, and the analysis contained in the denial memorandum supports this. The 

deciding official cited factors such as Lt Col JP’s duties and workload, the experience level 

of military counsel already detailed to represent Appellant, and the distance from the 

expected site of the proceedings. Appellant may disagree with the deciding official’s 

weighing of the relevant considerations, but under the broad discretion granted to decision 

makers in this area, more than mere disagreement is necessary for us to second-guess such 

a decision. The Chief of the Trial Defense Division did not abuse her discretion in 

declining to detail Lt Col JP to Appellant’s defense team, and the military judge did not 

abuse his discretion in ruling against Appellant on this issue.

XXI. Issues XXI and XXII: Admission of Evidence under 

Mil. R. Evid. 702 and Ineffective Assistance of Counsel

The searches of Appellant’s computer media devices revealed explicit photographs 

of NR, some of them with an adult male. The adult male’s face was not visible in the 

photographs, but the adult male’s hands and penis were visible in some of the photographs. 

Appellant was charged with committing indecent acts toward NR based on the 

photographic evidence. To aid in proving these specifications, the Government called Mr. 
75 ACM 38346 

Christopher Iber, a forensic examiner at the Federal Bureau of Investigation. Mr. Iber 

testified that his duties included comparison analysis, which involved comparing items 

depicted in photographs with other items. The Government established that Mr. Iber had 

specialized training and experience in this area, and proffered Mr. Iber as an expert in 

comparison analysis. Trial defense counsel did not object to this, and the military judge so 

recognized Mr. Iber. Mr. Iber then testified that he had compared the photographs of NR 

with a photograph of Appellant’s hand. He testified that based on similar features between 

the two hands—such as knuckle creases, hand creases, and blemishes—in his opinion, the 

hands depicted in the two photographs were the same. Trial defense counsel did not object 

to this testimony. In cross-examination, trial defense counsel effectively explored the 

limitations of Mr. Iber’s training and experience.

On appeal, Appellant alleges that the military judge erred in admitting Mr. Iber’s 

testimony. Alternatively, he asserts that trial defense counsel were ineffective by failing 

to object to Mr. Iber’s testimony. He asserts that Mr. Iber lacked qualifications to serve as 

an expert in comparison analysis and that Mr. Iber’s testimony does not qualify as reliable 

under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). We disagree.

We review de novo the question of whether the military judge properly performed 

his or her gatekeeping function in ruling upon expert testimony. United States v. Flesher, 

73 M.J. 303, 311 (C.A.A.F. 2014). However, appellate courts normally review for an abuse 

of discretion the military judge’s decision to permit a witness to testify as an expert, the 

limitations placed on the scope of the witness’s testimony, and the enforcement of those 

limitations. Id. When an appellant does not object at trial, we review for plain error. 

United States v. Green, 55 M.J. 76, 81 (C.A.A.F. 2001). In general, “[t]he military judge 

has broad discretion as the ‘gatekeeper’ to determine whether the party offering expert 

testimony has established an adequate foundation with respect to reliability and relevance.” 

United States v. Allison, 63 M.J. 365, 369 (C.A.A.F. 2006) (quoting Green, 55 M.J. at 80).

Mil. R. Evid. 702 sets forth the basic standard for expert testimony:

If scientific, technical, or other specialized knowledge will 

assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education may testify 

thereto in the form of an opinion or otherwise if (1) the 

testimony is based upon sufficient facts or data, (2) the 

testimony is the product of reliable principles and methods, and 

(3) the witness has applied the principles and methods reliably 

to the facts of the case.

Thus, an expert “may testify if he or she is qualified and testimony in his or her area of 

knowledge would be helpful.” United States v. Billings, 61 M.J. 163, 166 (C.A.A.F. 2005). 

“A suggested ‘test’ for deciding ‘when experts may be used’ is ‘whether the untrained 
76 ACM 38346 

layman would be qualified to determine intelligently and to the best possible degree the 

particular issue without enlightenment from those having a specialized understanding of 

the subject . . . .” United States v. Meeks, 35 M.J. 64, 68 (C.M.A. 1992) (alteration in 

original) (quoting FED. R. EVID. 702 advisory committee note). 

In addition, military courts apply the factors set forth in United States v. Houser, 36 

M.J. 392 (C.M.A. 1993) in determining whether to admit expert testimony. Those factors 

are: (1) the qualifications of the expert, (2) the subject matter of the expert testimony, 

(3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the 

reliability of the evidence, and (6) whether the probative value of the testimony outweighs 

other considerations. Id. at 397. It is not necessary to satisfy each of the Houser factors; 

the “gatekeeping inquiry must be tied to the facts of a particular case.” United States v. 

Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007). Houser, which was issued before the Supreme 

Court’s decision in Daubert, is consistent with Daubert and remains a valid test for 

determining the admissibility of expert testimony. United States v. Griffin, 50 M.J. 278, 

284 (C.A.A.F. 1999). The Daubert criteria for determining the reliability of expert 

testimony are: (1) whether the technique can be, and has been, tested; (2) whether the 

technique has been subjected to peer review and publication; (3) the technique’s known or 

potential rate of error and whether standards exist to control the technique’s operation; and 

(4) whether the technique enjoys general acceptance within the relevant expert community. 

Daubert, 509 U.S. at 593–94.

Trial defense counsel did not object to Mr. Iber’s testimony; therefore, the military 

judge did not place his analysis of the Houser factors on the record. By failing to object to 

Mr. Iber’s testimony at trial, Appellant, at a minimum, forfeited this issue. Under a plain 

error analysis, we find no error in admitting Mr. Iber’s testimony. Appellant properly notes 

certain limitations in Mr. Iber’s qualifications such as his lack of certification. These 

limitations were explored effectively in cross-examination. However, Mr. Iber had been 

employed as a photographic technologist for nine years, attended a two-year training 

program, engaged in professional development activities, engaged in extensive comparison 

analysis as part of his duties, and previously testified as an expert in comparison analysis 

four times. His qualifications were sufficient that his opinion could be helpful to the 

factfinder. He appropriately limited his testimony to his study of the photographs at issue, 

and the issue of whether the male hand in the pictures was that of Appellant was of central 

relevance to these specifications. Particularly in this military judge-alone trial, there was 

minimal to no concern of unfair prejudice or similar issues. The expert’s opinion was 

supported by testimony comparing specific items in the photographs, demonstrating that it 

was Appellant’s hand in the photographs of NR.

Appellant did not request a Daubert hearing, so the record is not well developed as 

to whether techniques used in Mr. Iber’s comparison analysis are sufficiently reliable under 

that standard. However, Mr. Iber did testify that all his work is peer reviewed. Ultimately, 

his testimony only involved pointing out matching characteristics of the two sets of 
77 ACM 38346 

photographs, and then offering his opinion that the two sets of photographs depicted the 

same hand. We see no reason why these techniques would present any concern under 

Daubert. The military judge committed no error in not sua sponte excluding Mr. Iber’s 

testimony. 

Additionally, even presuming error in allowing Mr. Iber to testify, we find no 

prejudice from such error. A layperson’s examination of the two sets of photographs easily 

reveals similarities between the hands depicted in each set. Mr. Iber’s testimony only 

identified specific features of the hand in the photographs and added his opinion that, based 

on these features, the hand in each set of photographs belonged to the same person. In 

addition to a layperson’s examination of the photographs, the Government could rely on 

the following evidence: (1) the photographs of NR were found on Appellant’s computer; 

(2) Appellant was the “big brother” of NR’s brother and NR often came on outings; (3) the 

bed sheets and headboard in the photograph matched the distinctive sheets and headboard 

taken from Appellant’s bedroom; and (4) the metadata from the photographs found on 

Appellant’s computer revealed that the images were taken during times when Appellant 

was known to be caring for NR and NR’s brother. Mr. Iber’s testimony was helpful to the 

factfinder, but it was hardly necessary to demonstrate beyond a reasonable doubt that 

Appellant committed indecent acts upon NR.

Finally, using the standard outlined in Issue II, we find Appellant received effective 

assistance of counsel on this issue. Trial defense counsel provided declarations on this 

issue. They explained that they did not object to Mr. Iber’s testimony because they 

believed the similarities between the two sets of photographs was obvious to a layperson, 

and Mr. Iber’s testimony was not necessary to prove the Government’s case. Therefore, 

being able to cross-examine Mr. Iber about the limits of his training and expertise 

represented a better strategy than possibly excluding the testimony altogether and having 

the factfinder simply conduct his own analysis. Additionally, trial defense counsel 

observed that the threshold under Mil. R. Evid. 702 to qualify as an expert is low, and they 

believed Mr. Iber easily met this threshold. We find trial defense counsel’s explanations 

sound, and we will not second-guess their tactical decisions. Additionally, they effectively 

cross-examined Mr. Iber and limited the impact of his testimony. Appellant received 

effective assistance of counsel on this issue.

XXII. Issues XXIII and XXIV: March 2012 Search Authorization and

Ineffective Assistance of Counsel

Appellant’s next assignment of error challenges the search authorization for his 

home and car on 12 March 2012. That search authorization was issued after Appellant was 

found in a car with AP in violation of a no-contact order. The affidavit accompanying the 

request for search authorization stated that based on Appellant’s violation of the no-contact 

order, “it is believed that there is evidence of electronic communication between 

[Appellant] and [AP] within the residence and/or vehicle necessary to establish a meeting 
78 ACM 38346 

between the two.” Appellant alleges that this is a conclusory statement that fails to

establish a substantial basis for the military magistrate to find probable cause. 

The standard of review and governing legal authorities for this issue are generally 

set forth in Issue I.E. above. However, where an appellant has not challenged the admission 

of evidence at trial, he or she may prevail on appeal only by showing plain error. Mil. R. 

Evid. 103. To establish plain error, Appellant must demonstrate that (1) there was error, 

(2) the error was plain or obvious, and (3) the error materially prejudiced a substantial right. 

United States v. Olano, 507 U.S. 725, 732–35 (1993). If Appellant has intentionally 

relinquished a known right at trial, as opposed to merely failing to assert a right, the issue 

is waived, and Appellant has lost the right to raise the issue on appeal. United States v. 

Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). 

Appellant did not challenge this issue at trial. At a minimum, therefore, he has 

forfeited this issue. The Government asserts that Appellant waived this issue rather than 

forfeited it because he never challenged the search authorization despite raising numerous 

other motions—including other Fourth Amendment challenges. We need not decide 

whether Appellant waived rather than forfeited this issue because, even assuming 

Appellant only forfeited it, we find no plain or obvious error in the admission of evidence 

resulting from the 12 March 2012 search authorization. Appellant was observed violating 

a no-contact order by riding in a car with AP. It is reasonable to believe that this meeting 

did not occur spontaneously and Appellant and AP recently communicated to set up this 

meeting. We find no plain error in the admission of this evidence.

Appellant also alleges his trial defense counsel were ineffective by failing to raise 

an objection to the admission of this evidence at trial. The Government submitted a 

declaration from one of the trial defense counsel stating that this evidence was not 

challenged because counsel believed probable cause existed for the search authorization.

Appellant later filed a motion to submit documents and a motion for leave to file a 

supplemental assignment of error concerning this issue. These motions were filed after 

this court had returned the record of trial to the convening authority to conduct the DuBay

hearing necessitated by Issue II. We granted both motions while the record of trial was 

with the convening authority. 

The Government then moved for reconsideration en banc, asserting that this court 

was without jurisdiction to grant the motions because the case was with the convening 

authority. We delayed action on the Government’s en banc reconsideration motion to 

address this matter in this opinion. Having done so, we deny the Government’s motion. 

The court declined to consider this matter en banc. Likewise, this panel declined to 

reconsider the granting of Appellant’s motions. This matter had no bearing on the issue 

being addressed in the DuBay hearing. As a result, the Government’s concern that it would 

have to simultaneously litigate this case in two forums was unfounded. In addition, our 
79 ACM 38346 

ultimate decision to grant the motions to supplement the record results in no prejudice to 

the Government.

Having considered the supplemental assignment of error and the documents 

Appellant moved to submit, and applying the standards set forth in Issue II above, we find 

no ineffective assistance of counsel. “When an appellant argues that counsel was 

ineffective for erroneously waiving a motion, it makes sense to deny the claim if Appellant 

would not be entitled to relief on the erroneously waived motion, because the accused 

cannot show he was harmed by not preserving the issue.” United States v. Bradley ̧ 71 

M.J. 13, 17 (C.A.A.F. 2012). We see no basis for suppressing evidence found pursuant to 

the search authorization. The failure to object to this issue at trial prevented the record 

from being fully developed on this matter, but the record demonstrates that AFOSI 

informed the military magistrate that Appellant was found riding in a car with AP in 

violation of a no-contact order. Under plain error review, Appellant bears the burden of 

showing that the magistrate did not have a substantial basis to believe that evidence of 

electronic communication would be found in the premises to be searched. Common sense 

suggests that the two communicated to set up their meeting, and there was substantial 

evidence that the two had an extensive record of communication by electronic means. Even 

if trial defense counsel had moved to suppress this evidence, our analysis would remain 

the same on appeal. In any event, trial defense counsel vigorously represented Appellant 

at trial and successfully moved to dismiss 7 of the 17 referred specifications. Appellant 

has not met his burden of demonstrating that his counsel were ineffective.

XXIII. Issue XXV: Legal and Factual Sufficiency—Violation of No-Contact Orders

Appellant alleges his convictions of three specifications of failing to obey a lawful 

order are legally and factually insufficient. He contends that the evidence failed to 

demonstrate that he committed the offenses “within the continental United States,” as 

charged. Instead, he asserts that the charged misconduct occurred when he sent text and 

Facebook messages, and the Government introduced no evidence that he sent these 

messages while in the continental United States. 

Applying the standards set forth in Issue VII, we find Appellant’s conviction of 

these three specifications legally and factually sufficient. The record convincingly 

demonstrates Appellant was in Florida throughout most, if not all, of the charged time 

frame. The relevant messages the Government introduced contain no indication that 

Appellant was out of the country, and in many instances the messages indicate he was at 

his home station in Florida. Witness testimony and cell phone records also support the 

Government’s contention that Appellant committed the charged misconduct while in the 

continental United States. Viewed in the light most favorable to the Government, a 

reasonable factfinder could have found Appellant guilty of all elements of these offenses

beyond a reasonable doubt. Similarly, after weighing the evidence in the record of trial 
80 ACM 38346 

and making allowances for not having personally observed the witnesses, we are convinced 

of Appellant’s guilt beyond a reasonable doubt.

XXIV. Issue XXVII: Article 13, UCMJ

At trial, Appellant moved to receive administrative credit for alleged illegal pretrial 

punishment. His motion cited several conditions of his pretrial confinement; the military 

judge’s ruling found the following facts relevant to this issue.

1. On or about 12 March 2012, the accused was placed in 

pretrial confinement at Tyndall AFB, FL. On or about 23 April 

2012, the accused was transferred to the Bay County Jail in 

Panama City, FL.

2. Arriving at the Bay County Jail, the accused was involved 

in booking and intake procedures. At that time, medical 

personnel determined he may be a suicide risk. The accused 

then spent roughly three days in a suicide watch area known as 

“C-2.” C-2 was a relatively austere environment where, for 

their own safety, inmates were given so[-]called “boat beds” 

resting on the floor, were required to eat their meals without 

the use of utensils, and underwent other restrictions.

3. The accused was then transferred to the “C-1 Pod” at the Bay 

County Jail. The C-1 Pod is a “protective custody” area with 

a day room and about 12 cells, capable of handling up to two 

detainees per cell. The accused’s case is one that had received 

considerable media attention in the local area. For this reason, 

and because of the nature of the offenses the accused was 

alleged to have committed, Bay County Jail officials placed the 

accused in the C-1 Pod out of concern for his safety. Detainees 

in the protective custody pod receive special protection, 

including different uniforms from general population, so that 

jail staff can easily identify them as detainees who cannot have 

contact with general population.

4. The accused has remained assigned to the C-1 Pod from late 

April 2012 to the present. While assigned to the C-1 Pod, the 

accused has experienced a number of inconveniences or 

hardships:

a. Leaky Roof. For years, the Bay County Jail has had 

problems with a leaky roof (now under repair). From April to 

July 2012, the accused’s cell experienced water leaks when it 
81 ACM 38346 

rained. The accused was assigned to the lower of two bunks, 

and thus his bed was protected from leaks and only got wet on 

one occasion. But water dripped from light fixtures and other 

sources, requiring him to “squeegee” it repeatedly from his 

cell. In July 2012, the accused filed a formal complaint with 

jail authorities, and he was then moved to [a] cell in the C-1 

Pod with no water leaks.

b. Commingling. Typically the C-1 Pod population is 

about twenty detainees. Precise data were not available, but 

among these detainees there were commonly several—perhaps 

one-fourth—who had been convicted and sentenced, and were 

awaiting transfer from the jail to long term incarceration with 

the State Department of Corrections. From about 10 

November 2012 to 10 February 2013, the accused shared a cell 

with an individual who was, at or about that time, convicted 

and in the process of being sentenced and transferred from the 

C-1 Pod.

c. Fitness and Recreation. The C-1 Pod had a day room 

with television and games available, which the detainees were 

allowed to access from 0500-2230 daily. Members of the C-1 

Pod were allowed roughly three hours per week of outdoor 

recreation. The outdoor facility provided C-1 Pod detainees 

was a small enclosed pen, without the equipment and other 

exercise opportunities allowed the general jail populace.

d. Health Care. During his stay of approximately ten 

months in the Bay County Jail, the accused has been afforded 

roughly twenty visits for medical and other health care. His 

overall treatment opportunities have been satisfactory, but he 

has experienced interruptions in some of his scheduled 

appointments and in the receipt of certain allergy medications.

e. Heating. In December 2012, for a period of about 

two weeks, the local area experienced a cold spell. The heating 

system at the Bay County Jail had difficulty accommodating 

the change in temperature. [D]etainees in the C-1 Pod endured 

temperatures at or about 60 degrees.

In the analysis section of the ruling, the military judge concluded that “there was no purpose 

or intent by any governmental authority to punish the accused, and that there was no 

imposition of punishment prior to trial.” 
82 ACM 38346 

The military judge found no violation of Article 13, UCMJ. However, the military 

judge found that Appellant was entitled to 75 days of confinement credit under R.C.M. 

305(k) and United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007), for the unusually harsh 

circumstances he experienced. Appellant now challenges the portion of the military 

judge’s ruling denying relief under Article 13, UCMJ. In addition to the matters 

specifically discussed in the military judge’s ruling, he alleges other harsh conditions of 

his pretrial confinement, including denial of access to legal resources, denial of access to 

medical care, harassment by a guard, and instances when he was made to wear prisoner 

clothing outside the jail. Some of these issues are raised for the first time on appeal.

Article 13, UCMJ, prohibits the intentional imposition of punishment on an accused 

before trial and pretrial confinement conditions that are more rigorous than necessary to 

ensure the accused’s presence at trial. United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 

2003). The ultimate issue of unlawful pretrial punishment presents a mixed question of 

law and fact. United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997) (citing 

Thompson v. Keohane, 516 U.S. 99, 111–12 (1995)). The specific question of whether an 

appellant was subject to the intentional imposition of punishment before trial “entails a 

purpose or intent to punish an accused before guilt or innocence has been adjudicated.” Id. 

Therefore, on such “‘basic, primary, or historical facts’ we will defer to the trial judge who 

is in the best position to evaluate them, and on those points, we will reverse only for a clear 

abuse of discretion.” Id. (quoting Thompson, 516 U.S. at 110). 

The military judge issued thorough, well-supported findings of fact concerning 

Appellant’s motion at trial. Appellant has raised no serious challenge to these findings of 

fact, and we see no clear error in them. The Government called an official from the Bay 

County Jail in motions practice, and he convincingly testified that the facility has suffered 

from long-term maintenance issues that impacted Appellant. He also convincingly testified 

that jail officials took reasonable steps to alleviate the effects of these issues on Appellant 

and that Appellant was never singled out or made the object of punishment. As to the 

alleged delays or interruptions in medical care, the military judge saw nothing particularly 

egregious about these issues, and neither do we. Appellant was provided sufficient care by 

military medical standards. As to the issues Appellant raises for the first time on appeal, 

even assuming Appellant has not waived his right to raise these issues by his failure to do 

so at trial, we see nothing about these matters to indicate government officials intended to 

punish Appellant. Appellant no doubt suffered to some extent as a result of the conditions 

of his pretrial confinement, and the military judge recognized this by granting him 

confinement credit under R.C.M. 305(k). However, the military judge’s conclusion that 

no intent to punish existed is well supported and his decision not to grant relief does not 

represent a clear abuse of discretion. 

XXV. Issue XXVIII: Article 55, UCMJ
83 ACM 38346 

Finally, Appellant alleges that the conditions of his post-trial confinement violated 

Article 55, UCMJ. He asserts that he did not receive adequate treatment in the Bay County 

Jail for chronic medical conditions (allergies and vertigo), and that the deliberate 

indifference to these medical conditions constituted cruel and unusual punishment. We 

disagree.

We review de novo allegations of cruel and unusual punishment. United States v. 

White, 54 M.J. 469, 471 (C.A.A.F. 2001). Both the Eighth Amendment36 and Article 55, 

UCMJ, prohibit cruel and unusual punishment. In general, we apply the Supreme Court’s 

interpretation of the Eighth Amendment to claims raised under Article 55, UCMJ, except 

where legislative intent to provide greater protections under Article 55, UCMJ, is apparent. 

United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000). “[T]he Eighth Amendment 

prohibits two types of punishments: (1) those ‘incompatible with the evolving standards 

of decency that mark the progress of a maturing society’ or (2) those ‘which involve the 

unnecessary and wanton infliction of pain.’” United States v. Lovett, 63 M.J. 211, 215 

(C.A.A.F. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). A violation of 

the Eighth Amendment is shown by demonstrating: “(1) an objectively, sufficiently serious 

act or omission resulting in the denial of necessities; (2) a culpable state of mind on the 

part of prison officials amounting to deliberate indifference to [Appellant’s] health and 

safety; and (3) that [Appellant] has exhausted the prisoner-grievance system . . . and that 

he has petitioned for relief under Article 138, UCMJ.” Id. (footnotes and quotation marks 

omitted).

An appellant is entitled to reasonable medical care for serious medical conditions. 

United States v. McPherson, 72 M.J. 862, 873 (A.F. Ct. Crim. App. 2013), aff’d, 73 M.J. 

393 (C.A.A.F. 2014). “[D]eliberate indifference to serious medical needs of prisoners 

constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth 

Amendment.” Estelle, 429 U.S. at 103–04 (citation omitted). In determining whether an 

appellant’s medical needs are “serious,” we examine whether the medical needs involve 

“serious health risks.” McPherson, 72 M.J. at 873 (quoting United States v. Haymaker, 46 

M.J. 757, 761 (A.F. Ct. Crim. App. 1997)). “Denial of adequate medical attention can 

constitute an Eighth Amendment . . . violation. A failure to provide basic . . . care can 

constitute deliberate indifference. However, it is not constitutionally required that health 

care be ‘perfect’ or ‘the best obtainable.’ [An appellant is] entitled to reasonable medical 

care, but not the ‘optimal’ care recommended . . . .” White, 54 M.J. at 474–75 (citations 

omitted). 

To prevail, Appellant must show: (1) he has exhausted administrative remedies, 

under both the confinement grievance system and in accordance with Article 138, UCMJ; 

(2) prison officials committed a “sufficiently serious act or omission” that denied him 

necessities; and (3) the act or omission resulted from a culpable state of mind reflecting 

 

36 U.S. CONST. amend. VIII.
84 ACM 38346 

deliberate indifference by confinement officials to Appellant’s health and safety. Lovett, 

63 M.J. at 215. We look objectively at whether an act denied a prisoner his necessities, 

while we subjectively test the state mind of the prison officials. United States v. Brennan, 

58 M.J. 351, 353 (C.A.A.F. 2003). 

Assuming that Appellant satisfies the first prong of the Lovett test of exhausting 

administrative remedies,37 we find his claim fails on the second prong. Appellant’s 

submissions demonstrate that he was confined at the Bay County Jail for 33 days. Even 

assuming that Appellant did suffer from allergies and vertigo, and that he received no 

medication for these conditions, we find no evidence in the record that he faced any 

“serious health risks” as a result of this denial of care for a relatively short period of time, 

and we have no reason to believe this is the case. Appellant has not alleged sufficient facts 

to allow us to conclude that he faced the possibility of “further significant injury or the 

unnecessary and wanton infliction of pain” as a result of his short-term denial of medication 

for these medical conditions. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) 

(quotation marks omitted). Appellant has not satisfied his burden of demonstrating that

prison officials committed a sufficiently serious act or omission that denied him 

necessities; thus, he is not entitled to relief on this issue.

XXVI. Additional Issue: Appellate Delay

This case was docketed with this court on 20 May 2013, meaning more than 35

months have passed between docketing and this opinion. The appellate delay in this case 

exceeds the standards set forth in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). 

We review de novo claims that an appellant was denied his due process right to a 

speedy post-trial review and appeal. Moreno, 63 M.J. at 135. In conducting this review, 

we assess the four factors laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the 

length of the delay, (2) the reasons for the delay, (3) Appellant’s assertion of the right to 

timely review and appeal, and (4) prejudice. Id. There is a presumption of unreasonable 

appellate delay when the Court of Criminal Appeals does not render a decision within 18 

months of docketing. Id. at 142. If the appellate delay in a given case does not rise to the 

level of a due process violation, this court may nonetheless exercise its broad authority 

under Article 66(c), UCMJ, to grant sentence relief even in the absence of a showing of 

material prejudice. United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002).

 

37 The Article 138, UCMJ, 10 U.S.C. § 838, complaint Appellant attached to his appeal was denied. A denial letter 

notes that Appellant did not file the complaint until 255 days after his alleged improper post-trial confinement ended. 

Appellant claims that he pursued redress with confinement officials after the conditions ended, but has not attached 

any evidence of such. 
85 ACM 38346 

We decline to grant sentence relief in this case. Having analyzed the four Barker

factors, we find the delay in rendering this opinion does not constitute a due process 

violation. We also find that Tardif relief is not appropriate in this case. 

We note the following factors that particularly guided our analysis on this point: 

(1) this case involved unusually voluminous and complex issues, with the record of trial 

filling 17 volumes (including more than two full volumes of post-trial and appellate 

documents) and 31 raised issues; (2) Appellant himself was responsible for a portion of the 

delay due to his untimely and repeated Grostefon submissions and his decision to hire 

civilian counsel 15 months after the case was docketed; (3) the numerous allegations of 

ineffective assistance of counsel required procurement of responsive affidavits or 

declarations; (4) Appellant requested and was granted oral argument in this case, but oral 

argument could not be scheduled for more than two months after the motion was granted 

due to civilian appellate defense counsel’s schedule; (5) a DuBay hearing was necessary to 

adequately address one of Appellant’s allegations of ineffective assistance of counsel; and 

(6) Appellant requested, and was granted, a second oral argument after the DuBay hearing. 

This court conducted several status conferences and took all appropriate measures to move 

this case to completion. 

We are confident that the numerous orders this court issued in this case sufficiently 

demonstrate that the court has vigorously exercised its responsibility to timely review this 

case. Therefore, Appellant is not entitled to relief based on the fact that more than 18 

months elapsed after docketing until today’s opinion.

XXVII. 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 approved findings and 

sentence are AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court