UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

LIND, KRAUSS, and PENLAND

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist JOSHUA D. CHANDLER

United States Army, Appellant

ARMY 20120680

Headquarters, I Corps (Rear) (Provisional) (convened)

Headquarters, I Corps (action)

David L. Conn, Military Judge 

Colonel Kurt A. Didier, Staff Judge Advocate (pretrial)

Colonel William R. Martin, Staff Judge Advocate (post-trial)

For Appellant: Captain Robert H. Meek, III (argued); Lieutenant Colonel Jonathan 

F. Potter, JA; Major Amy E. Nieman, JA; Captain Sara E. Lampro, JA (on brief).

For Appellee: Captain Scott L. Goble, JA (argued); Colonel John P. Carrell, JA; 

Lieutenant Colonel James L. Varley, JA; Major John K. Choike, JA; Major Alison L. 

Gregoire, JA (on brief).

7 April 2015

---------------------------------

OPINION OF THE COURT

---------------------------------

PENLAND, Judge:

An officer panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of conspiracy to sell military property of a value of more than

$500; conspiracy to steal military property of a value of more than $500; conspiracy 

to steal military property of a value of less than $500; wrongful disposition of 

military property of a value of more than $500; sale of military property of a value 

of more than $500; sale of military property of a value of less than $500; larceny of 

military property of a value of more than $500; larceny of military property of a 

value of less than $500; housebreaking; unlawful entry; wrongful communication of

a threat; and obstruction of justice in violation of Articles 81, 108, 121, 130, and

134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 908, 

921, 930, 934 (2006). The panel sentenced appellant to a dishonorable discharge, 
CHANDLER—ARMY 20120680

2

confinement for ten years, forfeiture of all pay and allowances, and reduction to the 

grade of E-1. The convening authority approved only so much of the sentence as 

provided for a dishonorable discharge, confinement for nine years and two months, 

forfeiture of all pay and allowances, and reduction to the grade of E-1.

This case is before the court for review under Article 66, UCMJ. Appellant 

raises three assignments of error, all of which merit discussion but no relief. We 

have also considered those matters personally raised by appellant pursuant to 

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they are without 

merit. Though not raised by appellant, we also find that two of the findings of guilt 

of conspiracy should be consolidated into one specification to reflect appellant’s 

single agreement to commit multiple offenses.

FACTUAL BACKGROUND

 Appellant was an armorer in Headquarters and Headquarters Company, 

4th Battalion, 9th Infantry Regiment, 4th Stryker Brigade Combat Team, 2d Infantry 

Division, Joint Base Lewis-McChord (JBLM), Washington. He conspired with 

multiple soldiers to steal and sell military property from the battalion; stole the 

military property; later sold some of this military property; and threatened to kill 

one of his co-conspirators for his cooperation with law enforcement efforts to 

recover it.

Appellant’s misconduct began with relatively low-value larceny. Between 

May and November 2011, he conspired with Specialist (SPC) Daniel Green to steal 

Meals-Ready-to-Eat (MRE) from Company C’s supply room, where SPC Greene

worked. Appellant planned to sell the MREs at gun shows in Oregon. Appellant and 

SPC Greene stole MREs from Company C’s supply room on multiple occasions. 

Appellant then stole more military property from the supply room, including belt 

cutters, impact gloves, and chemical illumination sticks. The aggregate value of this 

stolen military property was approximately $4,500.

In December 2011, appellant and Private (PVT) Nicholas Solt agreed to steal

and sell sensitive weapon accessories and flashlights from Company C’s arms room. 

Appellant and PVT Solt secreted away some of the items for illicit sale and profit, 

including: thermal sights, laser range finders, machine gun optics, close quarters 

holographic sights, and tactical flashlights. On 3 January 2012, unit leaders 

discovered and reported the theft to Criminal Investigation Command (CID) at 

JBLM. Working with the Federal Bureau of Investigation and the Bureau of 

Alcohol, Tobacco, Firearms, and Explosives (ATF), CID interviewed multiple 

soldiers from 4-9 Infantry and soon discovered that appellant was an aspiring 

weapons dealer in the Portland, Oregon, area. 
CHANDLER—ARMY 20120680

3

On 4 January 2012, CID Special Agent (SA) DS interviewed appellant. Prior 

to the interview, SA DS read appellant his Article 31, UCMJ, rights, which appellant 

waived. Appellant told him that he was aware of the investigation because he was 

friends with SPC WY, Company C’s armorer. Appellant told CID SPC WY had 

informed him nearly $500,000 worth of military property was stolen. During this 

interview, appellant did not tell CID that he had possessed or sold any of the stolen 

property without proper authority. Also on this date, SA DS accompanied appellant 

to his mother’s home in Oregon. Special Agent DS searched the home, but found no 

stolen military property.

On 6 January 2012, appellant went to the JBLM Trial Defense Services (TDS) 

office and sought the advice of Captain (CPT) RS, a military defense counsel. 1 

Captain RS “explained to appellant the importance of honesty, thoroughness, and not 

concealing facts, so [CPT RS] could give [appellant] the best possible advice.” 

Captain RS also provided appellant “with the customary defense-oriented advice 

such as to not talk to anyone about the allegations . . . .” Appellant told CPT RS 

that: he innocently possessed the missing military property; he agreed to pay PVT 

Solt $3,000 for some of his property; PVT Solt placed multiple bags in his vehicle;

and he believed the items therein were mostly broken and further assumed they were 

surplus. Appellant claimed that on 3 January 2012 he first began to realize they 

were stolen. 

 

1

This and our opinion’s next two paragraphs are based on affidavits from 

appellant’s defense counsel. Appellant’s affidavit does not conflict with those of his 

defense counsel; in pertinent part, appellant writes:

On 10 January 2012, I went to CID, on advice of counsel, 

and told them what I knew about equipment missing from 

the Charlie Company, 4/9 arms room. I offered to show 

CID where the equipment was, again on the advice of 

counsel, and I agreed to work with CID in a sting 

operation against Private Nicholas A. Solt.

I cooperated with CID in the investigation into the stolen 

property on the advice of my defense counsel, [CPT RS]. 

The CID agent I spoke to, [SA MM], informed me and my 

defense counsel that he had no authority to make a deal 

with me. Captain [RS] advised me to turn over the 

property and work with CID despite the fact that there was 

no deal for immunity.
CHANDLER—ARMY 20120680

4

Captain RS consulted with Major (MAJ) BG, his supervisory defense counsel, 

and they both met with appellant, challenging his characterization of his 

involvement as an innocent mistake. Appellant steadfastly claimed he did not know 

PVT Solt had stolen the weapons accessories. Captain RS and MAJ BG considered 

and discussed with appellant his options and the associated benefits and risks. They 

discussed with appellant that potential benefits of cooperation included buttressing 

his claim that he innocently and mistakenly possessed the property. But, they also 

discussed with him the potential risks, including potential criminal charges for 

previously lying to CID; increased scrutiny for other misconduct; vulnerability to a 

law enforcement investigation, which would discredit his claim of innocent and 

mistaken possession; potential criminal charges for breaking into a government 

facility and stealing military property; and vulnerability to revenge from PVT Solt. 

They advised appellant to cooperate with CID and reveal PVT Solt’s involvement, 

noting, among other things, that he would be vulnerable to prosecution for the 

larceny even if he cooperated. Captain RS and MAJ BG told appellant that if he 

approved, they would attempt to secure immunity in return for his cooperation. 

Appellant expressed his understanding and told CPT RS and MAJ BG that he wanted 

time to consider his options.

On 9 January 2012, appellant again met with CPT RS, and they reviewed 

appellant’s options. They also reviewed the following facts: multiple news outlets 

had publicized the theft and law enforcement investigation; CID had seized 

appellant’s phone, yielding contact information belonging to his acquaintances in 

Oregon to whom he had sold or transferred the stolen property.

2

 With these facts, 

CPT RS consulted with MAJ BG again, and they maintained their advice that 

appellant should cooperate with CID before they discovered his full involvement and 

arrested him. Appellant informed CPT RS that he wanted immunity in exchange for 

his cooperation. Captain RS and MAJ BG communicated with government counsel 

and advocated in support of appellant’s wishes, but the government declined to 

provide immunity or any other form of leniency. With MAJ BG’s concurrence and 

believing that CID would soon arrest appellant anyway, CPT RS advised him to 

cooperate with CID even without immunity, in order to maximize the chance that 

 

2 Between 7-9 January 2012, CID seized appellant’s phone and confirmed a 

suspicion that he had contact with at least one known weapons d ealer in the 

Portland, Oregon area, Mr. BB. Also on 9 January 2012, without CPT RS’s 

knowledge at the time, CID interviewed SPC Greene, suspecting his involvement in 

the optics theft. Denying any role in that larceny, SPC Greene instead confessed his 

own conspiracy with appellant to steal MREs. With these developments, CID then 

developed a “full-court press” investigative plan against appellant, primarily 

suspecting him of stealing the weapons parts and surreptitiously placing a Global 

Positioning System-enabled tracking device on his vehicle.
CHANDLER—ARMY 20120680

5

authorities would believe his claims of innocence. Appellant chose to cooperate, 

and MAJ BG planned for a meeting with CID the next day.

On 10 January 2012, CID received a call from the TDS office, stating that a 

soldier at the office—appellant—had information regarding the stolen property’s 

location. Special Agent MM and SA AW met with appellant and CPT RS at the TDS 

office. The special agents advised appellant of his Article 31 rights, and appellant 

again waived his rights. Appellant told the agents that PVT Solt agreed to sell him 

property for $3,000, that PVT Solt met him in their barracks parking lot and told him 

to “take a walk,” and that, upon returning from this walk, appellant discovered the 

property and a pair of bolt cutters in his vehicle. According to appellant, PVT Solt

entered the supply room and arms room office while wearing gloves, using a 

duplicate key and “card[ing] a few locks . . . .” Appellant further told SA MM and 

SA AW that he removed the property from their cases, placed the cases in tras h 

bags, and discarded them in a dumpster, the location of which he claimed he could 

no longer remember. Appellant said he placed the property in multiple bags, stored

four of them in Mr. WP’s apartment, and sold the remaining property to Mr. BB in 

Tigard, Oregon. Acting with urgency because of the stolen property’s potential for 

reaching the hands of bad actors, CID asked appellant to help recover it that day. 

Appellant agreed, and he accompanied CID, ATF, and local police officers as they

recovered stolen property from Mr. WP and Mr. BB from 10-12 January 2012. 

Among this property were MREs, which appellant and SPC Greene had stolen. 

On 11 January 2012, appellant agreed to operate as a CID “source,” assisting 

its investigation without any promise of leniency or immunity. However, during the 

nighttime hours of 16 January 2012 and acting outside the scope of his agreement 

with CID, appellant abruptly entered SPC Greene’s barracks room and told SPC 

Greene, “you fucked up.” Appellant was concerned with CID’s discovery of the 

stolen MREs, and he accused SPC Greene of helping their investigation. He told 

SPC Greene that if his cooperation resulted in appellant’s confinement, he would kill 

him after release. 

On 17 January 2012, SA DS questioned appellant again. Appellant was 

advised of his rights again and waived them. Appellant told SA DS that PVT Solt

approached him in December 2011 and offered to sell him military property for 

$3,000. Appellant told SA DS that, on 16 December 2011, PVT Solt placed multiple 

trash bags containing military property in appellant’s vehicle. Appellant transported 

the property to Oregon and, he claimed, opened one of the bags to inspect its 

contents. Appellant told SA DS that he believed he saw “decommissioned aiming 

points” in the bag and that he gave a bag of property to Mr. BB, a weapons and 

weapon accessories dealer in the Portland area. Appellant claimed that he began to 

realize that the property was not actually decommissioned, and that he stashed the 

remaining bags of property at Mr. WP’s house in order to seek legal counsel and 

arrange its return to Army control. 
CHANDLER—ARMY 20120680

6

Later on 17 January 2012, while acting as a source and wearing a listening 

device which CID monitored, appellant met with PVT Solt. He told PVT Solt that 

he was attempting to negotiate the $3,000 purchase price with a downstream buyer

and, as an interim payment, gave PVT Solt $500 in controlled CID funds. The CID

agents then apprehended PVT Solt. After CID focused its investigation on 

appellant, he helped recover 95% of the property.

Appellant and PVT Solt stole nearly $634,000 worth of military property. 

The adverse impact on training was palpable. Without the stolen weapons 

accessories, Company C’s February 2012 collective training exercise at Yakima 

Training Center was noticeably degraded and the unit did not have fully-equipped

weapons systems during its preparation for deployment to combat. 

PROCEDURAL BACKGROUND

The case was originally tried 9-11 July 2012. During an Article 39(a), UCMJ,

session to discuss findings instructions, defense counsel requested the military judge 

give the mistake of fact instruction applicable to specific intent crimes, which only 

required that the mistake be honest. See Dep’t of Army, Pam. 27-9, Legal Services: 

Military Judges’ Benchbook [hereinafter Benchbook], para. 5-11-1 (1 Jan. 2010). 

The military judge agreed with defense counsel’s argument that some evidence had 

been raised to trigger a mistake of fact instruction for the offenses of conspiracy,

sale and wrongful disposition of military property, and larceny. However, the judge 

mistakenly provided the mistake of fact instruction pertaining to general intent

offenses, which required that the mistake be both honest and reasonable. The 

military judge instructed the panel that:

With regard to the offenses of larceny, wrongful sale or 

disposition of military property, or conspiracy to commit 

these crimes the evidence has raised the issue of ignorance 

or mistake on the part of the accused concerning whether 

the military property he or his co-conspirator sold or 

disposed of was no longer usable or intended for military 

use.

[T]he accused is not guilty of wrongful sale or disposition 

of military property or larceny if:

One, he mistakenly believed that the property was no 

longer serviceable and usable as military property and had 

been abandoned; and

Two, if such belief on his part was reasonable.
CHANDLER—ARMY 20120680

7

(Emphasis added).

The members determined beyond a reasonable doubt that appellant did not 

honestly and reasonably believe the property was abandoned, given that they found 

appellant guilty of a majority of the larceny and related specifications. With those 

and other findings of guilty, the panel sentenced appellant as described above on 

11 July 2012.

When reviewing the record for authenticity, the military judge realized his 

mistake of fact instruction was incorrect. The judge determined he should have 

provided the panel with the mistake of fact instruction used when specific intent

offenses are at issue in accordance with United States v. Binegar, 55 M.J. 1 

(C.A.A.F. 2001). On 4 April 2013, the military judge emailed the following 

message, in pertinent part, to counsel:

I received the Chandler Record on Tuesday. After 

reviewing the record, it confirmed a sinking feeling I had 

that I provided members with an erroneous instruction on 

the defense of mistake of fact. Under [the] Binegar

opinion, the instruction should have been an honest 

mistake, not honest and reasonable. Since this was 

objected to, it amounts to plain error and . . . it is my 

responsibility under the Manual [for Courts-Martial] to 

direct a proceeding in revision.

So, IAW [Rule for Courts-Martial (R.C.M.)] 1102 I am 

directing a post-trial session with the members to reinstruct them on the issue of mistake of fact IAW [the] 

Binegar case.

. . . .

My proposal will be to reinstruct the members and direct 

them to once again deliberate on findings in light of the 

corrected instruction. I will also give counsel an 

opportunity to re-argue on findings in light of the 

corrected instruction. Obviously, if there are different 

findings, the members will also deliberate and vote on a 

new sentence, provided the accused is found guilty of any 

offense.

On 1 May 2012, the I Corps and JBLM Chief of Criminal Law forwarded the 

following message, in pertinent part, from the military judge to the panel members

and counsel:
CHANDLER—ARMY 20120680

8

Members,

As the presiding judge, I have directed a proceeding in 

revision in the case of US v. Chandler. This is due to an 

error I made in instructing you, specifically on the defense 

of mistake of fact. As a result, I am going to provide you 

with a corrected instruction on the law, including the 

corrected instruction on the defense of mistake of fact. 

Counsel will then have an opportunity to argue the case 

again. You will deliberate again on your findings, vote 

and announce your findings in light of the corrected 

instructions.

Please do not infer from my decision to conduct this 

proceeding that I expect your findings either to remain the 

same or change based on the process and revised 

instruction. The only purpose for this proceeding is to 

ensure you are correctly instructed on the law and that you 

base your decision on the law and evidence.

During the proceedings, the transcribed record of trial will 

be available to you, along with copies of all the exhibits 

admitted during the trial. Realizing that it has been 

approximately 9 months since you have heard the evidence 

and made your original findings, I am attaching a 

transcript of the relevant portions of the trial and 

testimony of the witnesses and list of exhibits admitted, 

which you may wish to review as an aid in refreshing your 

memory as to the facts. I do not expect you to read this 

transcript in advance of the proceedings, but want to make 

it available to you in the event you wish to re-acquaint 

yourself with the evidence before Saturday’s session.

I once again remind you of your original oath, which 

remains in effect. You may not discuss the case or issues 

related to it with anyone, not even among your fellow 

court members, until you are together in the deliberation 

room deliberating on findings. Do not conduct any 

research or consult any resource as to the law about the 

case. Have no contact with any of the witnesses or parties 

to the proceedings, including myself or the counsel. If 

you have questions, please hold them until we reassemble 

as a court-martial.
CHANDLER—ARMY 20120680

9

On 3 May 2013, trial defense counsel moved the military judge, in writing, to 

enter findings of not guilty of the specifications affected by the erroneous mistake of 

fact instruction, a rehearing on the sentence for the remaining specifications, or 

alternatively, a mistrial. Defense counsel asserted, inter alia, the military judge had 

no authority to order a post-trial session under R.C.M. 1102 for the purpose of 

recalling the panel, instructing them again on findings, and directing them to 

deliberate anew. The government neither objected nor sought to petition this court 

to prevent such a proceeding.

 

On 4 May 2013, the military judge conducted an Article 39(a), UCMJ, session 

before recalling the panel. While the judge denied the defense’s motion for a 

mistrial, he did not explicitly rule on the defense’s motion for findings of not guilty. 

Defense counsel requested the military judge’s permission to voir dire the panel, but 

the judge tacitly denied the request. He did, however, tell counsel that:

[I]n the event there is a different finding, I will permit 

voir dire on the issue of whether members have been 

exposed to any additional information that might influence 

their impartiality with regard to sentence. I will also 

permit the accused to make an additional sworn or 

unsworn statement, should Specialist Chandler choose to 

do so.

I have decided that, although technically not applicable, I 

will impose the R.C.M. 810(d) rule applicable to retrials 

and limit the maximum punishment to the sentence the 

accused received from this court-martial. I believe this 

would make the proceedings in revision fully consistent 

with R.C.M. 1102(c)(2) [sic] by preventing any possible 

increase in punishment of the accused. 

Later that morning, the military judge called the panel and, after stating he 

had incorrectly instructed them the previous July, informed them that:

[T]he government admitted a statement by the accused in 

which the accused indicated. . . an alleged co-conspirator, 

Private Solt, placed garbage bags of items in the accused’s 

vehicle and asked the accused to sell them. If that 

occurred and the accused honestly and mistakenly 

believed either the property was abandoned property or 

Private Solt was an owner of the property, even if not 

objectively reasonable, it is a complete defense to larceny 

and conspiracy to commit larceny. 
CHANDLER—ARMY 20120680

10

The military judge then reiterated the substance of this instruction consistent 

with the sample contained in paragraph 5-11-1 of the Benchbook. He directed them 

to deliberate and again return findings regarding Specifications 1 and 2 of Charge I 

(conspiracies with PVT Solt to steal and sell military property), Specification 2 of 

Charge II (wrongful disposition of weapons accessories and other military property 

to Mr. BB), Specification 1 of Charge III (larceny of military property between 1 

December and 3 January 2012) and the Specification of Charge IV (housebreaking, 

“insofar as the acts are related to the conspiracy with Private Solt to commit 

larceny.”). 

The panel deliberated and returned findings of guilty to each offense, 

excepting several words from Specification 2 of Charge I. 3 Though the findings 

were not identical to those announced at the original trial, the military judge 

suggested that the panel’s findings did not require new sentencing proceedings. 

Both trial counsel and defense counsel agreed.

Before adjournment, defense counsel requested the military judge reconsider 

the 3 May 2013 motion for findings of not guilty. The military judge stated h e 

would reconsider the motion. While the record does not contain his reconsidered 

decision, it is plain the military judge did not resolve the issue in appellant’s favor. 

LAW AND ANALYSIS

Conflict-Free and Effective Assistance of Counsel

Appellant asserts his defense counsel was ineffective by advising him to 

cooperate with CID without first securing an immunity deal. Appellant also asserts 

he was “deprived of his right to conflict-free counsel” because after defense counsel 

rendered the “ill-advised and tactically nonsensical” advice, “counsel [was] 

effectively unable to object to any of the resulting evidence” during trial. We 

disagree on both grounds.4

 

3

Specification 2 of Charge I alleged, in relevant part, that in order to effect the 

object of the conspiracy between PVT Solt and appellant (i.e., the sale of military 

property of a value of more than $500), “the said Private Solt and the said Specialist 

Chandler did steal military property and transport the said property to Oregon.” The 

panel found appellant guilty of Specification 2 of Charge I, “except the words ‘the 

said Private Solt’ and ‘steal military property and.’”

4

 We need not order a post-trial evidentiary hearing in this case based on our 

application of the third factor in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 

1997): “if the affidavit is factually adequate on its face to state a claim of l egal error 

(continued . . .)
CHANDLER—ARMY 20120680

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We evaluate appellant’s claim of ineffective assistance of counsel under the 

standard in Strickland v. Washington, 466 U.S. 668 (1984). First, appellant must 

show counsel’s performance was deficient, such that the errors were “so serious that 

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Id. at 687. Second, appellant must demonstrate that “the deficient 

performance prejudiced the defense” in that he was “deprive[d] . . . of a fair trial, a 

trial whose result is reliable.” Id. On appeal, there is “a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance.” 

Id. at 689.

Appellant urges us to conclude that his defense counsel’s advice to cooperate 

with CID was per se deficient, therefore, tainting subsequent representation with 

conflict. However, appellant’s logic is flawed in this case, where he fails to 

demonstrate his defense counsel’s advice was somehow defective or substantially 

departed from that which a rational counsel would give “under prevailing 

professional norms.” Id. at 688. By the time appellant spoke to defense counsel, he 

had already placed himself in a difficult position. Appellant further complicated 

matters by omitting critical facts. Appellant told defense counsel he had been in 

possession of stolen property and that the law enforcement investigation was closing 

in on him. Appellant and his defense counsel were faced with th e questions of 

“when and how”—importantly, not “if”—government investigators would learn that 

he was involved with the stolen property. Based on what he told his counsel, 

appellant’s only real—albeit unlikely, but not fanciful—chance to exonerate himself 

was to proactively approach law enforcement representatives and tell them his side 

of the story, which he repeatedly asserted was true.

“A fair assessment of attorney performance requires that every effort be made 

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s challenged conduct, and to evaluate the conduct from counsel’s 

perspective at the time.” Id. at 689 (emphasis added). Trial defense counsel and his 

supervisor spent substantial time analyzing appellant’s options in the midst of a 

decidedly non-static situation. Indeed, a rapidly-developing, multi-agency law 

enforcement investigation was underway and increasingly focused on appellant. His 

counsel provided multiple courses of action, war-gaming them against the planning 

assumption he would not receive immunity, as well as against the planning 

assumption he would. They described appellant’s options with him, along with the

 

(. . . continued)

and the [g]overnment . . . offers an affidavit that expressly agrees with those facts, 

the court can proceed to decide the legal issue on the basis of those uncontroverted 

facts.” Appellant’s post-trial affidavit does not conflict with those submitted by his 

defense counsel.
CHANDLER—ARMY 20120680

12

related risks and benefits. Appellant evinced his understanding and deliberated on 

his various options, both with and without his counsel; he did not make his decision 

hastily. At appellant’s direction and before his decision to cooperate, trial defense 

counsel and his supervisor attempted to obtain government leniency. Ultimately,

and understanding the government had denied his bid for leniency, appellant 

concurred with his defense counsel’s advice to cooperate anyway, and he personally 

decided to do so. Appellant knowingly, intelligently and voluntarily chose his 

course of action after receiving thorough and competent advice from his defense 

counsel. In summary, appellant has fallen far short of establishing any deficient 

performance by his defense counsel.

We also recognize the possibility that a counsel’s personal interests may so 

conflict with those of his client to create an impermissible conflict of interest and, 

depending on the circumstances, deprive him of effective assistance of counsel. See 

United States v. Saintaude, 61 M.J. 175 (C.A.A.F. 2005); United States v. Cain, 

59 M.J. 285 (C.A.A.F. 2004). However, under the facts of this case, we find no 

evidence to support the allegation that defense counsel was in any way conflicted 

from representing appellant at trial.

Post-trial Session

Appellant’s assignment of error alleging the proceeding in revision was 

improper implicates various statutes and procedural rules, including Article 60, 

UCMJ; Article 63, UCMJ; R.C.M. 1102(b)(1); and R.C.M. 924.

Within limits, Article 60(e), UCMJ, authorizes the convening authority to 

order certain post-trial proceedings:

(e)(1) The convening authority or other person taking 

action under this section, in his sole discretion, may order 

a proceeding in revision or a rehearing. 

(2) A proceeding in revision may be ordered if there is an 

apparent error or omission in the record or if the record 

shows improper or inconsistent action by a court-martial 

with respect to the findings or sentence that can be 

rectified without material prejudice to the substantial 

rights of the accused. In no case, however, may a 

proceeding in revision—

(A) reconsider a finding of not guilty of any 

specification or a ruling which amounts to a finding of not 

guilty;
CHANDLER—ARMY 20120680

13

(B) reconsider a finding of not guilty of any 

charge, unless there has been a finding of guilty under a 

specification laid under that charge, which sufficiently 

alleges a violation of some article of this chapter; or

(C) increase the severity of some article of the 

sentence unless the sentence prescribed for the offense is 

mandatory.

(3) A rehearing may be ordered by the convening 

authority or other person taking action under this section 

if he disapproves the findings and sentence and states the 

reasons for disapproval of the findings. If such person 

disapproves the findings and sentence and does not order a 

rehearing, he shall dismiss the charges. A rehearing as to 

the findings may not be ordered where there is a lack of 

sufficient evidence in the record to support the findings. 

A rehearing as to the sentence may be ordered if the 

convening authority or some other person taking action 

under this subsection disapproves the sentence.

Article 63, UCMJ, lists several procedures that must be followed when 

holding a rehearing. One of the requirements is that a rehearing “shall take place 

before a court-martial composed of members not members of the court-martial which 

first heard the case.”

Rule for Courts-Martial 924 provides that, in a trial by members, a finding 

may only be reconsidered if prior to announcement of the findings in open court, a 

member proposes reconsideration and the panel properly votes upon the proposal for 

reconsideration.

Rule for Courts-Martial 1102, “Post-trial sessions,” largely mirrors Article 

60(e)(1)-(2), UCMJ, stating, “[p]roceedings in revision may be directed [by the 

military judge or the convening authority] to correct an apparent error, omission, or 

improper or inconsistent action by the court-martial, which can be rectified by 

reopening the proceedings without material prejudice to the accused” and listing the 

same prohibited actions during proceedings in revision. R.C.M. 1102(b)(1); R.C.M. 

1102(a) (post-trial sessions “In general.”); R.C.M. 1102(c) (“Matters not subject to 

post-trial sessions.”). Rule for Courts-Martial 1102(e)(2) also details the procedure

for post-trial hearings, including actions a judge must take :

The military judge shall take such action as may be 

appropriate, including appropriate instructions when 

members are present. The members may deliberate in 
CHANDLER—ARMY 20120680

14

closed session, if necessary, to determine what corrective 

action, if any, to take.

In this case, the military judge ordered a proceeding in revision in order to 

correct his previous error in instructing the panel on a defense raised by the 

evidence in the case. United States v. Gleason, 43 M.J. 69 (C.A.A.F. 1995), is most 

apposite to appellant’s case and resolves in his favor whether the subject of this 

post-trial proceeding was lawful. There, an officer panel convicted appellant of, 

among other offenses, solicitation to commit murder. Id. at 71. The military judge 

erred in his sentencing instructions with respect to potential forfeiture of pay 

consequences. Id. Approximately six weeks later, without any order from the 

convening authority, the military judge convened a “rehearing on the sentence” and 

provided correct instructions to the same panel, which deliberated again and 

returned the same sentence. Id. Holding that the post-trial session was improper, 

our superior court wrote:

The sentence rehearing apparently was conducted before 

the same ten members who participated in the original 

trial. . . . We note that Article 63, UCMJ, 10 U.S.C. § 863 

(1983), prohibits the members who sat in the original 

proceeding from sitting on a rehearing. On the other hand, 

if this proceeding is treated as a proceeding in revision, 

there is no problem in having the same members. 

However, the purpose of the proceeding . . . was to correct 

an error in the sentencing instructions, which is not a 

proper purpose for a proceeding in revision. See United 

States v. Roman, 22 U.S.C.M.A. 78, 81, 46 C.M.R. 78, 81 

(1972). In view of our disposition of this case we need 

not determine the validity of the rehearing on sentence. If 

it was invalid, the original proceeding would be reinstated, 

so a sentence existed which gave the Court of Military 

Review jurisdiction. See Art. 66(b)(1), UCMJ, 10 U.S.C.

§ 866(b)(1). 

Id. at 71 n.4.

Roman involved similar facts to Gleason. During authentication of the 

record, the military judge discovered he had omitted required sentencing instructions 

regarding voting procedures. Roman, 22 U.S.C.M.A. at 79, 46 C.M.R. at 79. Two 

weeks after adjournment, the judge reconvened the court-martial to hold a 

proceeding in revision and, over defense objection, provided the panel with the 

omitted sentencing instructions. Id. at 79, 46 C.M.R. at 79. The panel sentenced 

appellant to substantially the same sentence. Id. at 79, 46 C.M.R. at 79. In Roman, 

the Court of Military Appeals discussed the actions that a court may take in a case 
CHANDLER—ARMY 20120680

15

after it reconvenes for a proceeding in revision: “[w]hat is intended to be 

accomplished in revision proceedings is . . . correction of the record to reflect 

unintended omissions, to clarify ambiguities, and to correct improper or illegal 

sentence announcements, the alteration of which does not materially prejudice the 

substantial rights of the accused.” Id. at 81, 46 C.M.R. at 81. For example, the 

court cited to various cases allowing proceedings in revision to ascertain that an 

accused was fully advised on the record of his right to counsel or to correct 

erroneous announcement of a sentence when it was clear the omissions occurred 

through clerical and verbal errors. Id. at 81, 46 C.M.R. at 81 (citing United States v. 

Barnes, 21 U.S.C.M.A. 169, 170, 44 C.M.R. 223 (1972); United States v. Liberator, 

14 U.S.C.M.A. 499, 34 C.M.R. 279 (1964); United States v. Robinson, 4 U.S.C.M.A. 

12, 15 C.M.R. 12 (1954)). However, the court distinguished a correction of

sentencing instructions, noting that it was “substantially different from the type of 

corrective action appropriate in revision proceedings” and created the strong 

possibility of prejudice to an appellant because the same panel that already 

sentenced appellant is unlikely to fairly reconsider the sentence. Id. at 81, 

46 C.M.R. at 81. The court ultimately held:

A fault in instruction is not an error or omission in the 

record but . . . a substantive error in the trial . . . that . . . 

cannot be corrected by a proceeding in revision. In these

circumstances, we conclude that no authority existed for 

the attempt to cure the presentencing instructional error by 

proceedings in revision.

Id. at 81, 46 C.M.R. at 81 (omissions in original) (internal quotations marks and 

citations omitted). Our predecessor court has also stated that proceedings in 

revision cannot be used “to correct a flawed instruction to the members.” United 

States v. Jackson, 34 M.J. 1145, 1151 (A.C.M.R. 1992) (citing Roman, 22 

U.S.C.M.A. 78, 46 C.M.R. 78).

We can think of no matters more substantive than the defenses potentially 

applicable to a servicemember facing court-martial. Instead of resolving an 

administrative matter, the post-trial proceeding here more closely resembled a 

rehearing, but with the same panel—which the judge had no authority to order. The 

military judge likely understood that his approach was somewhat akin to a rehearing, 

as he invoked the sentence limitations provisions of R.C.M. 810(d). The hearing 

could also be viewed as a flawed attempt at reconsideration of findings, for which 

R.C.M. 924 governs. Contrary to R.C.M. 924, the proceeding occurred after the 
CHANDLER—ARMY 20120680

16

panel unambiguously announced findings on 10 July 2012, and it occurred at the 

military judge’s direction instead of a panel member’s proposal.5

We endorse initiative-taking by military judges. Such an approach is crucial 

in our justice system, which favors resolution of disputed issues at trial. We also 

understand the desire for quickly reaching a solution in the field, instead of waiting 

for a convening authority or an appellate court to order the same solution. However, 

our system’s range of post-trial remedies does not include remand to an original 

finder of fact in order to cure instructional error. This limitation is understandable, 

since one cannot reasonably expect panel members to set aside their original 

findings and deliberate anew. Put another way, as the post-trial proceeding began in 

this case, it was far more likely that the panel would simply validate its earli er 

findings of guilt; we cannot affirm such a process. Instead, we conclude the military 

judge erred in directing a proceeding in revision for the purposes of correcting 

erroneous instructions and directing the same panel to deliberate again. We regard 

this proceeding as void ab initio under the circumstances and need not address 

additional procedural peculiarities, including the military judge ’s emailing a 

redacted record of trial to the panel and his denying the defense request to voir dire 

the panel. 

Mistake of Fact Instruction

The post-trial proceeding is a nullity. Following the logic in Gleason, we are 

left with the July 2012 findings requiring Article 66, UCMJ, review. 6 

 

5

See also United States v. Barrett, ACM 35790, 2006 CCA LEXIS 39 (A.F. Ct. 

Crim. App. 28 Feb. 2006), pet. granted, 64 M.J. 87-88 (C.A.A.F. 2006), aff’d in part 

and rev’d in part, 64 M.J. 307 (C.A.A.F. 2006) (summ. disp.).

6 However, this court “may act only with respect to the findings . . . as approved by 

the convening authority.” UCMJ art. 66(c). When a convening authority does not 

expressly address the findings in his action, a service court “may presume that the 

convening authority approved the findings reached by the court-martial and reported 

in the [staff judge advocate’s] post-trial recommendation, absent material evidence 

to the contrary.” United States v. Alexander, 63 M.J. 269, 275 (C.A.A.F. 2006). 

The recommendation in this case contained the result of trial as an enclosure. The 

result of trial reflected, inter alia, the finding of guilty of Specification 2 of Charge 

I (conspiracy with PVT Solt to sell military property) from the proceeding in 

revision, wherein the panel found appellant not guilty of certain excepted words. 

Therefore, this court presumes the convening authority implicitly approved the 

finding of guilty of Specification 2 of Charge I as announced in the proceeding in 

(continued . . .)
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At trial, the government introduced evidence of appellant’s statement to CID 

that he believed some of the stolen property was actually abandoned or belonged to 

PVT Solt. Appellant’s statement raised the defense of mistake of fact, thus, the 

military judge was required to instruct the panel on this defense. R.C.M. 920(e)(3); 

United States v. DiPaola, 67 M.J. 98, 100-01 (C.A.A.F. 2008). The correct mistake 

of fact instruction was whether appellant honestly believed that the property in 

question was abandoned or otherwise belonged to PVT Solt, not whether his belief 

was honest and reasonable. Binegar, 55 M.J. 1.

Providing the panel with an incorrect instruction as to an affirmative defense 

is an error of constitutional magnitude. We must now determine whether the error

was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24

(1967); Neder v. United States, 527 U.S. 1, 18 (1999); United States v. McDonald, 

57 M.J. 18, 20 (C.A.A.F. 2002). We are convinced beyond a reasonable doubt that, 

absent this error, the panel would have found appellant guilty of the affected 

specifications. See United States v. Baxter, 72 M.J. 507, 513 (Army Ct. Crim. App. 

2013) (citing DiPaola, 67 M.J. at 102). In reaching this conclusion, we find no 

reasonable possibility that the incorrect instruction might have “contribute[d] to the 

[appellant’s] conviction” for the reasons outlined below. United States v. Davis, 

73 M.J. 268, 271 (C.A.A.F. 2014). 

Indeed, the evidence at trial did not focus on whether appellant reasonably

believed the property was abandoned or belonged to PVT Solt. Instead, the slight 

evidence of mistake in this case was immediately subject to overwhelming questions 

about whether such a purported mistake was honest. The evidence of appellant’s

knowledge that the property actually belonged to the Army and that the Army had 

not abandoned the property was overwhelming. 

Appellant was an armorer and it is reasonable to conclude he was familiar 

with accountability of weapons accessories. The optics—whose collective value 

was over $600,000—were sensitive items requiring storage in a secure arms room 

(or, in this case, an armorer’s office). Appellant described PVT Solt’s surreptitious 

entry into the armorer’s office to take the weapons acce ssories. Appellant then

removed the stolen optics from their cases, placed them in garbage bags, and 

discarded the cases. The stolen accessories ultimately recovered were functional, 

not broken. 

 

(. . . continued)

revision. We do not address the jeopardy issues relative to a finding of not guilty 

after such an erroneous proceeding.
CHANDLER—ARMY 20120680

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When first interviewed, appellant attempted to deceive CID by facilitating a 

futile search of his mother’s home, knowing that he had sold or transferred the 

optics to Mr. BB and Mr. WP. We acknowledge appellant’s argument that his 

behavior during his CID-monitored conversation with PVT Solt was little more than 

a government-concocted ruse, and we disagree. His words and actions during that 

encounter clearly referred to their pre-existing conspiracy to steal and sell military 

property. Despite the instructional error, the panel’s findings on 10 July 2012 are 

reliable.

Consolidation of Conspiracy Specifications

In Specifications 1 and 2 of Charge I, appellant was charged with two separate 

conspiracies with PVT Solt: the first alleged a conspiracy to steal military property 

of a value of more than $500; the second alleged a conspiracy to sell military

property of a value of more than $500. 

When an appellant enters into a single agreement to commit multiple offenses, 

it ordinarily constitutes a single conspiracy. Braverman v. United States, 317 U.S. 

49, 53 (1942) (holding that it is the “agreement which constitutes the conspiracy . . . 

one agreement cannot be taken to be several agreements and hence several 

conspiracies because it envisages the violation of several statutes rather than one .”); 

United States v. Pereira, 53 M.J. 183, 184 (C.A.A.F. 2000); United States v. Mack, 

58 M.J. 413, 418 (C.A.A.F. 2003). 

While not raised by appellant, our review of the evidence at trial leads us to 

conclude that only one agreement, and therefore one conspiracy, existed between 

appellant and PVT Solt, the objects of which were to both steal and sell military 

property of a value of over $500. Accordingly, we will consolidate Specifications 1 

and 2 of Charge I in our decretal paragraph and will reassess the sentence.

Post-trial Delay

In his Grostefon matters, appellant personally complains of excessive delay 

during the post-trial processing of his case and requests relief in the form of 

additional confinement credit.

Appellant was sentenced on 11 July 2012. The record of trial was 745 pages 

in length. On 25 January 2013, 198 days after completion of appellant’s trial, 

defense counsel first received the record for review. Defense counsel completed his 

errata on 28 March 2013, 62 days later. The military judge received the record of 

trial on 2 April 2013, 5 days later. The post-trial hearing occurred 4 May 2013, 
CHANDLER—ARMY 20120680

19

32 days later.7 The military judge authenticated the record of trial on 16 May 2013 . 

The staff judge advocate’s recommendation was signed on 17 June 2013, 32 days 

after authentication. Appellant was served the record of trial and recommendation 

on 27 June 2013. After requesting a 20-day extension of time to submit R.C.M. 

1105 matters, appellant provided his submission on 26 July 2013, 29 days after 

receiving the record and recommendation. In his post-trial matters, appellant 

complained that his due process right to speedy post-trial review was violated. 

While the government’s explanation noted the addendum was “forwarded to [the] 

Chief, Criminal Law Division” on 6 August 2014, 11 days after receipt of 

appellant’s post-trial matters, the addendum was not signed until 4 September 2013, 

29 days later. The addendum contained the following advice and recommendation 

from the staff judge advocate:

I disagree with defense’s allegations of legal error and of 

prejudice to the accused caused by post trial delay. While 

I disagree with these allegations, I recommend you grant 

the accused ten (10) months clemency.

The same day, the convening authority approved the staff judge advocate’s 

recommended ten months clemency and took action in appellant’s case, 420 days 

after announcement of sentence.

We review de novo appellant’s claim that he has been denied his due process 

right to a speedy post-trial review. United States v. Moreno, 63 M.J. 129, 135 

(C.A.A.F. 2006). Our superior court has adopted the four factor test of Barker v. 

Wingo, 407 U.S. 514, 530 (1972) to determine whether a due process violation has 

occurred: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant's 

assertion of the right to timely review and appeal; and (4) prejudice. Id. 

There is a presumption of unreasonable delay when more than 120 da ys have 

elapsed between completion of an appellant’s trial and action by the convening 

authority. Id. at 142. This presumption triggers analysis of the remaining three 

factors. Id. In this case, the total post-trial processing time from sentence to action 

was 420 days. The government provided a contemporaneous explanation for the 

delay. Considering the time taken for defense counsel to review the record for errata 

and the additional 20-day extension for appellant to submit R.C.M. 1105 matters, 

82 of the 420 days are attributable to appellant. The remaining 338 days rest 

 

7

Including the post-trial hearing, the record of trial was 820 pages in length.
CHANDLER—ARMY 20120680

20

squarely on the government’s shoulders, and it offers no persuasive reason to justify 

this passage of time.8 We resolve the first and second factors in appellant’s favor.

Turning to the third factor, while appellant complained of the unreasonable 

post-trial processing in his case, he waited to do so until he submitted his R.C.M. 

1105 matters, over one year after sentencing. This was the first time that appellant 

made any assertion of his right to speedy post-trial review. The untimely demand 

weighs slightly against appellant. See id. at 138; see also Canchola, 64 M.J. at 246. 

Turning to the fourth factor, upon review of the record, we find no prejudice and,

under Moreno, hold appellant’s due process right to speedy post-trial review was not 

violated.

However, even when there is no showing of prejudice, we may nonetheless 

find a due process violation if “in balancing the other three factors, the delay is so 

egregious that tolerating it would adversely affect the public’s perception of the 

fairness and integrity of the military justice system.” United States v. Toohey, 

63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the lengthy delay, the 

government’s explanation of the delay, and appellant’s less than timely assertion of 

his right to speedy post-trial review, we hold that the post-trial delay in this case is 

not so egregious as to find a due-process violation under Toohey.

9

Finally, we must also review the appropriateness of appellant’s sentence in 

light of the lengthy post-trial processing. See UCMJ art. 66(c); United States v. 

 

8

In the contemporaneous memorandum, the government explained, inter alia, that 

the lengthy transcription period was due to the high volume of cases that were tried 

within the jurisdiction with only three court reporters, one of whom temporarily left 

JBLM to attend the Advanced Leader Course and another of whom was moved from 

JBLM to a different duty station. “[A] general reliance on . . . manpower constraints 

will not constitute reasonable grounds for delay nor cause this factor to weigh in 

favor of the [g]overnment.” United States v. Canchola, 64 M.J. 245, 247 (C.A.A.F. 

2007) (per curiam). 

9

Even assuming a due process violation under Toohey, we would find the error 

harmless beyond a reasonable doubt. See United States v. Arriaga, 70 M.J. 51, 56 

(C.A.A.F. 2011) (citing United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)). 

Finally, we would also find that relief is not warranted under the facts of this case. 

See United States v. Rodriguez-Rivera, 63 M.J. 372, 386 (C.A.A.F. 2006) (even 

assuming a due process violation for post-trial delay, “to fashion relief that would be 

actual and meaningful in this case would be disproportionate to the possible harm 

generated from the delay. Accordingly, we conclude that no additional relief is 

appropriate or warranted in this case.”).
CHANDLER—ARMY 20120680

21

Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, 

service courts are] required to determine what findings and sen tence ‘should be 

approved,’ based on all the facts and circumstances reflected in the record, including 

the unexplained and unreasonable post-trial delay.”). Upon review of the entire 

record, to include the lengthy post-trial delay, the government’s explanation, the 

lack of timely demand for speedy post-trial review by appellant, the nature and 

seriousness of appellant’s offenses, the dismissal of Specification 2 of Charge I and 

the resulting reassessed sentence stated in our decretal paragraph, we find 

appellant’s reassessed sentence is appropriate. See United States v. Garman, 59 M.J. 

677, 683 (Army Ct. Crim. App. 2003) (holding that the post-trial delay “was not so 

egregious under the totality of the circumstances as to render appellant’s otherwise 

appropriate sentence inappropriate.”).

CONCLUSION

Specifications 1 and 2 of Charge I are consolidated into Specification 1 of 

Charge I as follows:

In that Specialist (E-4) Joshua D. Chandler, U.S. Army, 

did, at or near Joint Base Lewis-McChord, Washington 

between on or about 1 December 2011 and on or about 

3 January 2012, conspire with Private (E-1) Nicholas A. 

Solt to commit offenses under the Uniform Code of 

Military Justice, to wit: larceny and sale of military 

property of a value of more than $500, the property of the 

United States, and in order to effect the objects of the 

conspiracy the said Private Solt and the said Specialist 

Chandler did steal military property and the said Specialist 

Chandler did transport the said property to Oregon.

The finding of guilty of Specification 1 of Charge I, as consolidated, is 

AFFIRMED. The finding of guilty of Specification 2 of Charge I is set aside and 

that specification is dismissed. The remaining findings of guilty are AFFIRMED.

Reassessing the sentence in accordance with the principles of United States v. 

Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 

305, 307-08 (C.M.A. 1986), we are confident the panel would have adjudged a 

sentence at least as severe as the approved sentence absent the errors described 

above. The sentence is AFFIRMED. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside by this 

decision, are ordered restored. 

Senior Judge LIND and Judge KRAUSS concur. 
CHANDLER—ARMY 20120680

22

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: