UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman LUIS A. SOLIS

United States Air Force

ACM S32160

30 July 2015

Sentence adjudged 26 April 2013 by SPCM convened at Shaw

Air Force Base, South Carolina. Military Judge: Lynn Schmidt.1

Approved Sentence: Bad-conduct discharge, confinement for 6 months, 

forfeiture of $1000.00 pay per month for 6 months, and reduction to E-1.

Appellate Counsel for the Appellant: Major Jeffrey A. Davis (argued) and 

Captain Travis L. Vaughan.

Appellate Counsel for the United States: Captain Richard J. Schrider

(argued); Colonel Katherine E. Oler; Lieutenant Colonel C. Taylor Smith; 

and Gerald R. Bruce, Esquire.

Before

ALLRED, HECKER, and MITCHELL

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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

HECKER, Senior Judge:

A special court-martial composed of officer members convicted the appellant, 

contrary to his pleas, of violating a lawful general order by using spice, distributing

marijuana, wrongfully appropriating military property, and distributing spice, in violation 

 

1 The military judge’s name in this case is now Lynn Watkins due to a change in marital status.
2 ACM S32160

of Articles 92, 112a, 121, and, 134, UCMJ, 10 U.S.C. §§ 892, 912a, 921, 934. The court 

sentenced him to a bad-conduct discharge, confinement for 6 months, forfeiture of $1,000 

pay per month for six months, and reduction to E-1. The convening authority approved 

the sentence as adjudged. 

On appeal, the appellant contends the military judge abused her discretion by 

(1) denying his motion to suppress a drug test report on confrontation clause grounds, 

(2) failing to give a limiting instruction to the panel regarding the use of that report, 

(3) denying a defense request to travel its expert witness, (4) denying a defense request 

for discovery, and (5) denying a defense challenge for cause against a panel member. We 

also address whether the time between docketing with this court and the date of this 

opinion amounts to unreasonable post-trial delay that warrants relief. 

We heard oral argument2on the following issue:

Whether the results of scientific testing admitted as a business 

record under Military Rule of Evidence 803(6) for the limited 

purpose of corroborating an accused’s confession under 

Military Rule of Evidence 304(g) must comply with the 

confrontation clause requirements applicable to evidence 

submitted on the substantive issue of wrongful involvement 

with drugs, and, if so, whether the admission of the test 

results in this case complied with those requirements.

Finding prejudicial constitutional error, we dismiss Charge I and its three 

specifications and Charge IV and its specification. We affirm the remaining charges and 

reassess the sentence accordingly. 

Background

The appellant became the subject of an investigation by the Air Force Office of 

Special Investigations (AFOSI) in December 2012 after another military member 

reported the appellant had contacted him to ask about buying marijuana. At the request 

of AFOSI, the military member contacted the appellant, and the appellant agreed to sell 

marijuana to the informant at an off-base location on 18 December 2012. 

AFOSI provided the military member with $60 in marked bills, and he went to the 

pre-arranged location. The appellant arrived in his car, walked up to the other military 

member’s vehicle, and the two men made the exchange. When the appellant returned to 

 

2

 Oral argument in this case was heard at the George Washington University School of Law, in Washington, D.C.,

on 23 February 2015, as part of the court’s Project Outreach. Members of the law school’s Military Law Society 

participated in the argument as amici curiae.
3 ACM S32160

his car, he was apprehended by AFOSI agents and law enforcement personnel from the 

Sumter County (South Carolina) Sheriff’s Office. The appellant’s civilian roommate was 

also in his car. When AFOSI agents searched those present at the scene of the 

transaction, the appellant was in possession of the marked bills, and the confidential 

informant was in possession of a green leafy substance that field tested positive for 

marijuana. 

Under rights advisement, the appellant made several admissions about his 

involvement with marijuana and the intoxicant “spice.” A search of the appellant’s car 

and his residence revealed several containers containing green leafy substances. The 

testing of the contents of a container found in his residence was admitted as corroboration 

of the appellant’s confession and forms the basis of the appellant’s confrontation clause 

issue.

Following a litigated trial, the appellant was convicted of violating a lawful 

general order or regulation by using spice on divers occasions between 15 April 2010 and 

19 December 2012, and possessing spice on 19 December 2012.3 He was also convicted 

of distributing spice on one occasion between 11 April 2011 and 19 December 2012, and 

distributing marijuana on divers occasions between 1 October 2012 and 19 December 

2012. Lastly, he was convicted of wrongfully appropriating military property, 

specifically two government laptops found during the search of his residence. 

Results of Testing Admitted at Trial

During a consent search of the appellant’s residence following his apprehension, 

agents found a large green plastic bag outside the upstairs bedroom of the appellant’s 

roommate (the appellant’s bedroom was downstairs). This bag contained a large amount 

of a green leafy substance that an AFOSI agent suspected was spice because it did not 

smell or look like marijuana. The bag was labeled “Damiana Leaf,” which an AFOSI 

agent testified was an ingredient used in spice. 

According to the AFOSI agents who testified at trial, the large bag labeled 

“Damiana Leaf” was seized by personnel from the Sumter County Sheriff’s Office, and 

its contents were tested in its toxicology laboratory. A photograph of this bag admitted at 

trial actually shows an unlabeled small bag of a green material inside the larger bag 

which contains the “Damiana” label. 

No personnel from Sumter County testified about the seizure or testing of this 

material. Instead, the test results were admitted, over defense objection, through a 

 

3

 For the uses that allegedly occurred between 15 April 2010 and 10 April 2011, the lawful general order was the 

15 April 2010 Air Combat Command General Order prohibiting the use and possession of salvia and spice. For the 

possession and the uses that occurred on or after 11 April 2011, the lawful general regulation was Air Force 

Instruction 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (11 April 2011).
4 ACM S32160

two-page report signed by a chemist named Joseph Powell. The report (on Sumter 

County Sheriff’s Office letterhead) lists the appellant and his roommate by name as 

“subjects” in a drug offense case. It states that certain items were received from a named 

member of the sheriff’s office on 19 December 2012 and tested the following day: 

Item 2A: Plastic bag containing green plant material 

Item 2B: Plastic bag inside 2A containing green plant material 

Under “results,” the report states:

Item 2A: No prescription or controlled substance found

Item 2B: JWH-250 (1-pentyl-3-(2methoxyphenylacetyl)indole) found C-I 

No explanation was provided during the motions session or before the panel regarding 

the connection between this result and spice, nor any explanation for the different test 

results for the two items.

Included on the report itself is the following language: 

This is an official report of the Sumter County Sheriff’s 

Office Forensic Services Unit and is to be used in connection 

with an official criminal investigation. This report is to be 

maintained in the case file. 

In an admitted document entitled “certification of records custodian,” Mr. Powell 

certified that the report:

[W]as made at or near the time of the occurrence of the 

matters set forth by, or from information transmitted by, a 

person with knowledge of those matters. . . . [and] that the 

[pages of the report] are true and exact copies of documents 

maintained in the files of the Sumter County Sheriff’s Office 

in accordance with applicable law or regulation and kept in 

the course of the regularly conducted business and as a part of 

the regularly conducted activities of the Sumter County 

Sheriff’s Office. 
5 ACM S32160

This language mirrors the requirements in Mil. R. Evid. 902(11) which provides for the 

self-authentication of domestic business records through a declaration of a custodian or 

qualified witness.4

Admission of Sumter County Sheriff’s Office Report

Prior to trial, the government notified the defense of its intention to offer the 

Sumter County report into evidence through the testimony of the chemist who conducted 

the testing. After the defense then filed a motion to compel the appointment of a defense 

expert, the government responded by removing the chemist from the witness list and 

moving to instead admit the report as a business record under the hearsay exception for 

records of regularly conducted activity—Mil. R. Evid. 803(6)—without calling an expert 

witness or anyone from the Sumter County Sheriff’s Office. Trial counsel acknowledged 

that this process would violate the Confrontation Clause if the report was being offered 

“on the substantive issue of the presence of drugs.” However, trial counsel contended the 

Sixth Amendment5jurisprudence was inapplicable because the report was being offered 

only for the limited purpose of corroborating the appellant’s confession and that our 

superior court’s decision in United States v. Grant, 56 M.J. 410 (C.A.A.F. 2002), was 

controlling on the interaction between Mil. R. Evid. 803(6) and 304(g).

The military judge denied the appellant’s motion, finding the test results could be 

admitted without expert or foundational testimony. Since the government intended to use 

this document only to corroborate the confession, she found its admission through this 

process did not implicate the appellant’s right to confrontation. Citing to an Army case, 

she determined “a statement properly admitted under a hearsay exception may violate 

constitutional [confrontation] rights” and still be admissible. She also noted the majority 

decision in Crawford v. Washington, states the Confrontation Clause “does not bar the 

use of testimonial statements for purposes other than establishing the truth of the matter 

asserted.” 541 U.S. 36, 59 n.9 (2004). The military judge then admitted the report as 

corroboration over a continuing defense objection, including Mil. R. Evid. 403. She did 

not make an express ruling that the statement was admissible as a business record under 

Mil. R. Evid. 803(6). The military judge also did not instruct the panel how they were 

permitted to use this report in assessing the appellant’s guilt.

 

4 According to a document which was not given to the members, Mr. Powell is a forensic chemist employed by the 

Sumter County Sheriff’s Office to perform testing and analysis on evidence, including controlled substances 

prohibited by state law. This same document states he tested the items using the “legally reliable forensic laboratory 

procedures approved by the Sumter County Sheriff’s Office,” specifically gas chromatography, mass spectroscopy, 

and published literature. This was not admitted into evidence because the military judge sustained a defense

objection based upon “improper bolstering” and “hearsay.” In doing so, she also found the evidence “gets into 

testimonial hearsay.”

5 U.S. CONST. amend. VI.
6 ACM S32160

The appellant contends the admission of this report into evidence constituted 

prejudicial error. We agree.

Applicability of Confrontation Clause to Evidence that Corroborates a Confession 

At the time of the appellant’s court-martial, Mil. R. Evid. 304 read, in relevant 

part:

An admission or a confession of the accused may be 

considered as evidence against the accused . . . only if 

independent evidence . . . has been introduced that 

corroborates the essential facts admitted to justify sufficiently 

an inference of their truth. 

Mil. R. Evid. 304(g) (emphasis added).6 

The primary issue in this case is whether the scientific evidence used to 

corroborate the appellant’s confession was properly admitted into evidence such that it 

could be used for that purpose.

Even though a military judge’s decision to admit evidence is reviewed under an 

abuse of discretion standard, United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009), 

the question of whether the admitted evidence violates the Confrontation Clause of the 

Sixth Amendment is reviewed de novo. United States v. Blazier, 68 M.J. 439, 442 

(C.A.A.F. 2010) [hereinafter Blazier I]. If we find a violation of the Confrontation 

Clause, we cannot affirm the conviction unless this court is convinced beyond a 

reasonable doubt that the error was harmless. United States v. Rankin, 64 M.J. 348, 353 

(C.A.A.F. 2007).

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused 

shall enjoy the right . . . to be confronted with the witnesses against him.” Therefore, “no 

testimonial hearsay may be admitted against a criminal defendant unless (1) the witness 

is unavailable, and (2) the witness was subject to prior cross-examination.” United States 

v. Blazier, 69 M.J. 218, 222 (C.A.A.F. 2010) [hereinafter Blazier II] (citing Crawford, 

541 U.S. at 53–54). The Sixth Amendment bars only testimonial statements because 

 

6 Through an executive order signed on 15 May 2013 (three weeks after the appellant’s court-martial), the President 

implemented a complete revision of the Military Rules of Evidence. Mil. R. Evid. 304(g) was moved to Mil. R. 

Evid. 304(c)(2). The new rule uses the phrase “has been admitted into evidence” instead of the phrase “has been 

introduced.” However, this is not a substantive change as there has been a longstanding requirement that the 

corroborating evidence be admitted into evidence. See United States v. Duvall, 47 M.J. 189, 191–92 

(C.A.A.F. 1997); United States v. Adams, 74 M.J. 137, 139 n.6 (C.A.A.F. 2015) (noting that Mil. R. Evid. 304(c) 

remains substantively the same as Mil. R. Evid. 304(g)). Furthermore, the revised rule uses the words “admitted”

and “introduced” interchangeably. Cf. Mil. R. Evid. 304(c)(2) and 304(c)(5).
7 ACM S32160

“[o]nly statements of this sort cause the declarant to be a ‘witness’ within the meaning of 

the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006). 

At trial, the appellant contended his Sixth Amendment right to confrontation 

would be violated if the Sumter County laboratory report was admitted without testimony 

from laboratory personnel. Trial counsel acknowledged this would be the case if there 

waere no confession but successfully argued that our superior court’s decision in Grant, 

authorizes the admission of business records without confrontation when the records are 

admitted to corroborate a confession. 

In Grant, the government attempted to admit a laboratory report for the limited 

purpose of corroborating the accused’s confession to ingesting drugs. A doctor at an 

overseas base ordered a drug screen analysis as part of his effort to determine why the 

accused was unconscious; not realizing the local hospital could not conduct such testing. 

Grant, 56 M.J. at 412. Instead, this testing was performed by the epidemiology division 

of an Air Force laboratory at a different base, and it revealed the appellant’s urine was 

positive for cannabinoids. Because a qualified witness from the local hospital testified 

the hospital procured and kept the report in the normal course of its business and relied 

upon its accuracy in making treatment decisions for patients, our superior court found the 

laboratory report was admissible as a hospital business record despite the lack of 

testimony from laboratory personnel. Id. at 414. Thus, the starting point for Grant was 

that the report was a properly-admitted business record.

7

 Id. at 416 n.6 (emphasizing the 

case was “about corroborating a confession with a business record”). Here, however, the 

laboratory report was not a properly-admitted business record.

“Records of regularly conducted activity” (commonly referred to as “business 

records”) which are created by an entity on a consistent and routine basis under methods 

and circumstances indicating trustworthiness are not excluded by the hearsay rule 

regardless of whether the declarant is available as a witness. Mil. R. Evid. 803(6) defines 

those records as:

 

7

In Grant, the court also rejected the appellant’s assertion that “aside from establishing the report as a business 

record, the government was required to put on expert testimony to interpret the results” of the testing for the panel. 

56 M.J. 410, 415 (C.A.A.F. 2002). Case law at that time did require the government, when relying on scientific 

evidence to prove drug use, to put on expert testimony interpreting the test results in order to “provide a rational 

basis upon which the factfinder may draw an inference that [the illegal drug] was used.” Id. citing United States v. 

Murphy, 23 M.J. 310, 312 (C.M.A. 1987). The court held, however, that these “additional foundational 

requirements” for such a urinalysis test “do[] not change the law of evidence pertaining to the admissibility of a 

business record offered to corroborate a confession.” Id. at 416. Accordingly, the military judge did not err when 

he did not require the government “to support its offer of the report with expert testimony.” Id. The court reached a 

similar conclusion regarding chain of custody evidence. We find that this language about expert testimony and 

chain of custody does not trump the confrontation clause requirements described in this opinion.
8 ACM S32160

A memorandum, report, record or data compilation, in 

any form, of . . . conditions, opinions, or diagnoses, made at 

or near the time by, or from information transmitted by, a 

person with knowledge, if kept in the course of a regularly 

conducted business activity, and if it was the regular practice 

of that business activity to make [said material], unless the 

source of the information or the method or circumstances of 

preparation indicate a lack of trustworthiness. 

Because of the regular and routine circumstances of their creation, such business 

records are generally not testimonial and thus can be admitted without confrontation 

clause concerns. Crawford, 541 U.S. at 56. Even if a document could qualify as 

nonhearsay or for a hearsay exception, however, the document’s admission may violate 

the Sixth Amendment’s confrontation requirement if it constitutes testimonial hearsay. 

Id. at 61–62. Thus, for a forensic laboratory report to be admitted under Mil. R. Evid. 

803(6), it must not include any testimonial statements within it. Although the Supreme 

Court’s 2009 decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), became 

the definitive case for this proposition, our superior court had already made similar 

pronouncements. 

In Magyari, the government introduced a laboratory report from the Navy Drug 

Screening Laboratory that showed the accused’s urine sample tested positive for 

methamphetamine. 63 M.J. 123 (C.A.A.F. 2006). In introducing the evidence, the 

government called three chain of custody witnesses and a quality assurance officer from 

the laboratory (who was not involved in the testing of the appellant’s sample). On 

appeal, the accused argued the statement in the report was inadmissible testimonial 

hearsay and could not be used against him at trial. The court rejected the government’s 

contention that laboratory reports are “inherently not testimonial because they are 

business and public records.” Id. at 127. The court did conclude that this type of 

laboratory report can qualify as a business record, based on the language of Mil. R. Evid. 

803(6) which implied that such forensic reports are included in the definition of business 

records because forensic laboratories are impartial examining centers, and a laboratory 

report is a record of “regularly conducted” activity.8 Id. The court explicitly warned, 

however, that laboratory results or other types of routine records could be testimonial 

when a defendant is already under investigation and the reports are prepared at the behest 

of law enforcement in anticipation of a prosecution. Id.

 

8

 “At trial, the Government elicited ample testimony verifying that [the] report was completed in the normal course 

of the Navy Drug Screening Laboratory’s business. Further, lab results, DNA analyses, and hospital records, are 

oftentimes prepared in the course of routine, ‘regularly conducted’ business.” United States v. Magyari, 

63 M.J. 123, 127 (C.A.A.F. 2006).
9 ACM S32160

That situation arose two years later in a case with very similar facts to the instant 

case and where the laboratory reports were also admitted to serve as corroboration for a 

confession. In United States v. Harcrow, 66 M.J. 154, 158–59 (C.A.A.F. 2008), a

civilian sheriff’s deputy arrested the accused at his home for desertion and unrelated state 

charges. During the arrest, deputies seized items of drug paraphernalia and sent them for 

analysis by the Virginia Division of Forensic Science, which subsequently issued two 

laboratory reports documenting the presence of cocaine and heroin on several of the 

items. The primary evidence against the accused at trial was his confession that he had 

recently used cocaine and possessed a bag containing cocaine and heroin at his home. 

Our superior court found the confrontation clause applied to the laboratory reports which 

were admitted to serve as corroboration of that confession. 

The court noted that, prior to Crawford, hearsay statements could be admitted if 

they carried adequate indicia of reliability and that, at the time of Harcrow’s trial, 

forensic laboratory reports were “normally admissible” under Mil. R. Evid. 803(6) 

because they generally met the criteria for a business records exception to the hearsay 

rule. Harcrow, 66 M.J. at 158. Given the change brought by Crawford and the warning 

it had made in Magyari, our superior court had “no difficulty” concluding that laboratory

reports constitute testimonial statements. Id.; see also United States v. Cavitt, 

69 M.J. 413, 414 (C.A.A.F. 2011). In Harcrow, the laboratory analysis was conducted at 

the behest of a civilian sheriff’s office after arresting the accused for suspected drug use. 

The reports pertained to items seized from the accused’s home at the time of the arrest,

and the reports expressly identify the accused as a “suspect.” 66 M.J. at 158. The court 

thus concluded the reports were testimonial and were erroneously admitted and could not 

be used to corroborate the appellant’s confession. Id. at 159–60. 

Our superior court’s analytical framework was solidified the following year by the 

Supreme Court’s decision in Melendez-Diaz, 557 U.S. at 305. Although it acknowledged 

that documents kept in the regular course of a business may ordinarily be admitted at trial 

despite their hearsay status, the Supreme Court continued, “[T]hat is not the case if the 

regularly conducted business activity is the production of evidence for use at trial.” Id. at 

321. Under those circumstances, when forensic laboratory reports state a suspect 

substance was an illegal drug, it is testimonial for Sixth Amendment purposes. 

“Analysts’ certificates—like police reports generated by law enforcement officials—do 

not qualify as business or public records” if “calculated for use essentially in the court, 

not in the business.” Id. at 321–22.; see also Blazier II, 69 M.J. at 226 n.8. The Court 

went on to explain the relationship between the business/official records hearsay 

exceptions and the Confrontation Clause: 

Business and public records are generally admissible absent 

confrontation not because they qualify under an exception to 

the hearsay rules, but because--having been created for the 

administration of an entity’s affairs and not for the purpose of 
10 ACM S32160

establishing or proving some fact at trial--they are not 

testimonial. Whether or not they qualify as business or 

official records, the analysts’ statements here--prepared 

specifically for use at petitioner’s trial--were testimony

against petitioner, and the analysts were subject to 

confrontation under the Sixth Amendment. 

Melendez-Diaz, 557 U.S. at 324.

9

Since that time, our superior court has again found the confrontation clause 

applicable to laboratory reports offered as corroboration of confessions. In Henderson, 

the accused confessed to using cocaine and marijuana, and the government offered two 

positive urinalyses as corroboration. The government did not call the individuals who 

performed the testing and observed the chain of custody for the appellant’s urine sample, 

relying instead on the testimony of an expert forensic toxicologist from that laboratory 

who opined the samples analyzed in those exhibits contained the relevant metabolite. 

Our sister court had found the appellant waived any confrontation clause objection and, 

citing to Grant, held the urinalysis reports were admissible corroborative evidence. 

United States v. Henderson, Army 20090613 (Army Ct. Crim. App. 27 May 2011)

(unpub. op.), vacated, 71 M.J. 102 (C.A.A.F. 2012). Our superior court vacated that 

decision and remanded it for consideration whether, in light of Bullcoming v. 

New Mexico, 131 S. Ct. 2705 (2011), the appellant had been denied meaningful cross 

examination of those who performed and observed the testing. United States v. 

Henderson, 71 M.J. 102 (C.A.A.F. 2012) (mem). If the confrontation clause did not 

apply to evidence submitted solely to corroborate a confession, there would be no need 

for such a remand order.10 On remand, the Army Court then applied the confrontation 

clause jurisprudence to the urinalysis reports. United States v. Henderson, Army 

20090613 (Army Ct. Crim. App. 1 June 2012) (unpub. op.).

Application of Confrontation Clause Jurisprudence to the Sumter County Report

Having found the confrontation clause applies to reports offered by the 

government to corroborate a confession, we turn to whether the introduction of the report 

in this case violated the appellant’s right to confrontation. 

 

9 Two years later, in Bullcoming v. New Mexico, the Court confirmed the Sixth Amendment’s application to 

laboratory reports prepared as part of a criminal investigation. 131 S. Ct. 2705 (2011).

10

 Our superior court also recently granted review of a confrontation clause issue in a case where the Army Court of 

Criminal Appeals applied the confrontation clause jurisprudence to a urinalysis report and expert testimony used to 

corroborate an accused’s confession. United States v. Bennett, Army 20111107 (Army Ct. Crim. App. 

28 April 2014) (unpub. op.), review granted, __ M.J. __ No. 14-0658/AR (C.A.A.F. 2 October 2014). The issue 

being reviewed is whether an expert was erroneously allowed to repeat testimonial hearsay, denying the accused’s 

right to confrontation and, if so, whether the appellant’s confession is adequately corroborated. 
11 ACM S32160

An item of evidence is “testimonial” if its “primary purpose . . . is to establish or 

prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at

822; accord United States v. Porter, 72 M.J. 335, 337–38 (C.A.A.F. 2013); United States

v. Tearman, 72 M.J. 54, 60 (C.A.A.F. 2013); United States v. Squire, 72 M.J. 285, 290 

(C.A.A.F. 2013). An objective test is applied when identifying the primary purpose of 

an out-of-court statement. Williams v. Illinois, 132 S. Ct. 2221, 2243 (2012) (plurality 

opinion). To assess a statement’s “primary purpose,” we conduct an “objective analysis 

of . . . the statements and actions of the parties.” Michigan v. Bryant, 562 U.S. 344, 361

(2011). 

“[A] statement is testimonial if ‘made under circumstances which would lead an 

objective witness reasonably to believe that the statement would be available for use at a 

later trial.’” United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) (quoting 

Blazier I, 68 M.J. at 442). “[T]he focus has to be on the purpose of the statements in the 

drug testing report itself . . . .” Id. at 302. Even though those performing the testing 

“may well be ‘independent scientist[s]’ carrying out ‘non-adversarial public dut[ies],’

that does not mean that their statements are not produced to serve as evidence.” Id.

(quoting Bullcoming, 131 S. Ct. at 2717) (alternations in original). Indicia of formality or 

solemnity that would suggest an evidentiary purpose is one factor relevant to whether 

statements are testimonial. Tearman, 72 M.J. at 61 (citing Bullcoming, 131 S. Ct. at 

2717). Business records are not testimonial when they are “created for the administration 

of an entity’s affairs and not for the purpose of establishing or proving some fact at trial.” 

Melendez-Diaz, 557 U.S. at 324. 

Applying this framework to the Sumter County report, we find the report to be 

testimonial and admitted in violation of the confrontation clause. Its primary, if not sole, 

purpose was to establish or prove past events for a future criminal prosecution. It was 

made under circumstances which would lead an objective witness reasonably to believe 

that it was made for use at a later trial. The appellant is listed as the “subject” of the 

report, law enforcement officers seized the material and delivered it to a government 

laboratory, the chemist performing the testing was employed by a civilian law 

enforcement entity, the chemist tested the evidence and prepared a signed report covering 

the results of his analysis, and the report itself stated it was to be used in connection with 

an official criminal investigation and maintained in that case file. See Sweeney, 70 M.J. 

at 302–03 (holding a document created solely for an evidentiary purpose made in aid of a 

police investigation is testimonial); Harcrow, 66 M.J. at 159 (rejecting the government’s 

argument that laboratory reports will always be nontestimonial and noting that such 

records may be testimonial if an investigation is already pending against an individual 

and the testing is conducted by the government to discover evidence). 
12 ACM S32160

Under these circumstances, this report cannot be admitted as a business record as 

was the report in Grant. We find the military judge erred by admitting the Sumter 

County report into evidence.11

Prejudice

Having found constitutional error, we assess for prejudice. Confrontation Clause 

errors are subject to harmless-error analysis under which the beneficiary of the error must 

prove beyond a reasonable doubt that the error did not contribute to the guilty verdict. 

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); Chapman v. California, 

386 U.S. 18, 24 (1967). This is a question of law we review de novo. Tearman, 

72 M.J. at 62.

The government bears this burden of establishing that the constitutional error 

“‘has no causal effect upon the findings.’” Clayton, 67 M.J. at 288 (quoting 

United States v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007)). To meet this burden, the 

government must demonstrate there is no reasonable possibility that the testimonial 

hearsay contributed to the contested findings of guilty. Chapman, 386 U.S. at 23;

Tearman, 72 M.J. at 62; Porter, 72 M.J. at 338; Othuru, 65 M.J. at 377.

12

When assessing the potential prejudicial impact of a Confrontation Clause

violation, we look at the entire record and assess the context in which the inadmissible 

hearsay was admitted, how it was used at trial, and how it compares to any properly 

admitted evidence. See Tearman, 72 M.J. at 62; accord United States v. Chaves, 

481 F.3d 1274, 1277 (10th Cir. 2007).13 The prejudice depends upon a host of factors, 

 

11 The military judge also referred to testimonial statements being admissible without confrontation if admitted for a 

nonhearsay purpose, citing to a footnote in Crawford that states the Confrontation Clause “does not bar the use of 

testimonial statements for purposes other than establishing the truth of the matter asserted.” 541 U.S. 36, 59 n.9 

(2004). The Supreme Court’s reference to this proposition in Crawford is inapplicable here. As our superior court 

emphasized in its recent Adams decision, independent evidence of the confession’s essential “facts” must be 

admitted into evidence through corroborative evidence. United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015). 

By definition, to be proof of a “fact,” the evidence must be offered for the truth of the matter asserted in the 

evidence. See Mil. R. Evid. 401 (stating relevant evidence is evidence that has “any tendency to make the existence 

of any fact more probable or less probable than it would be without the evidence”). Here, the results of the scientific 

testing were used by the government to prove that spice was found in the appellant’s house and that fact was then 

used to corroborate the appellant’s confession to using spice and as substantive evidence that he possessed and used 

spice.

12

 Our superior court’s decision in Sweeney states the standard is a “reasonable probability” but that appears to be in 

error. United States v. Sweeney, 70 M.J. 296, 306 (C.A.A.F. 2011). This reference in Sweeney is found in a citation 

to our superior court’s decision in United States v. Blazier, 69 M.J. 218, 222 (C.A.A.F. 2010) [hereinafter Blazier 

II], but Blazier II uses the words “reasonable possibility,” using the language found in Chapman v. California, 

386 U.S. 18 (1967).

13 In Harcrow, as discussed above, our superior court concluded certain laboratory reports were erroneously 

admitted in violation of the Confrontation Clause and therefore could not serve as corroboration of the appellant’s 
13 ACM S32160

including the importance of the testimonial hearsay in the prosecution’s case, whether 

that hearsay was cumulative with other evidence, the presence or absence of evidence

corroborating or contradicting the material points of the disputed evidence,

14 the extent of 

confrontation permitted regarding the disputed evidence, and the overall strength of the 

prosecution’s case. See Van Arsdall, 475 U.S. at 684; Tearman, 72 M.J. at 62; Sweeney, 

70 M.J. at 306. 

The government’s evidence relating to spice consisted of the appellant’s 

admissions to investigators and evidence found on his person and in his apartment.15 

During his lengthy interview with investigators prior to the search of his residence, the 

 

confession, and in doing so, found plain and obvious error. 66 M.J. 154, 160 (C.A.A.F. 2008). The court then 

found the admission of the reports was harmless beyond a reasonable doubt and therefore did not violate a 

substantial right. Id. at 155. In reaching this conclusion, the court noted the accused’s admissions, rather than the 

laboratory reports, served as the primary evidence against him on the drug-related offenses and then assessed 

whether the government met its burden of showing the error was harmless beyond a reasonable doubt by evaluating 

whether there was sufficient evidence independent of those reports to corroborate the admissions. Id. at 160. 

Finding the uncontested testimony of two arresting deputies provided sufficient corroboration of the appellant’s 

admission that he used and possessed cocaine and heroin, the court found the government had met its burden of 

demonstrating the erroneous admission of the laboratory reports was harmless beyond a reasonable doubt and the 

accused had failed to demonstrate that the error materially prejudiced a substantial right. Id. In reaching this 

conclusion, the court did not reference the Van Arsdall factors and did not explicitly analyze whether there was a 

reasonable possibility the improperly admitted evidence might have contributed to the conviction. See Delaware v. 

Van Arsdall, 475 U.S. 673 (1986). Given the lack of any logical explanation as to why that line of harmless error 

jurisprudence would not apply in this context, however, we interpret the Harcrow decision as finding (1) the 

accused’s admissions were sufficiently corroborated by other evidence in the case and thus were admissible as 

evidence against him, and (2) the testimonial hearsay was unimportant in light of those corroborated admissions plus 

other admissible evidence considered by the panel. In other words, we find our superior court applied the Van 

Arsdall line of cases in finding the error was harmless beyond a reasonable doubt. In reaching this conclusion, we 

also assume the panel in Harcrow was properly instructed about how the members could use corroborative evidence 

in deciding what weight to give to the appellant’s admissions. That instruction was not given here and the members 

were also erroneously instructed on the limited purpose for which it had been admitted. 

14

 In this case, we do not give the government any benefit relating to this factor. After hearing telephonic testimony 

from a defense forensic toxicology expert regarding problems he had discovered with the Sumter County laboratory 

and its procedures, the military judge found the government’s pretrial discovery efforts regarding the laboratory 

were deficient but then concluded this failure did not disadvantage the defense because the laboratory report was 

only being offered as corroboration. She then required the defense to proceed to trial without further discovery. She 

also denied a defense request to travel its forensic toxicology expert to testify at trial, concluding he was not 

necessary because the government was not calling the chemist as a witness. On appeal, the appellant argues the 

military judge abused her discretion in making these rulings. We agree, as these rulings stemmed from the military 

judge’s erroneous admission of the laboratory report, as discussed above. Our remedy for these erroneous rulings is 

to not weigh this factor in favor of the government since the rulings prevented the defense from contradicting the 

material points of the disputed evidence.

15

 The appellant concedes that his conviction for wrongfully distributing marijuana on divers occasions between 

1 October and 19 December 2012 (the day after the drug bust) was not affected by the admission of the Sumter 

County report. To support this specification, the government presented evidence of the appellant’s communications

with the other military members regarding marijuana, the drug transaction he participated in on 18 December 2012, 

and the appellant’s admission that he had distributed marijuana on 18 December 2012 and on 10–11 other occasions 

since 2008.
14 ACM S32160

appellant first said he recently started smoking spice after being introduced to it by his 

roommate. After the agents accused him of lying, the appellant eventually admitted to 

smoking spice on numerous occasions since joining the Air Force and to procuring spice 

for at least one other military member. He denied ever possessing anything other than 

marijuana.16 

The government also presented the testimony of two Air Force investigators as 

proof of the appellant’s involvement with spice. Through these agents, the following 

evidence was adduced before the members: 

1. When the appellant was apprehended at the drug bust, he was in possession of a 

green leafy substance inside a clear plastic bottle labeled “Legal Devil Potpourri, 

not for human consumption.” This substance was never tested. No evidence was 

presented about whether it was or appeared to be an illegal substance.

2. During the search of the appellant’s apartment, the agents found a box in the 

appellant’s bedroom which contained a small plastic bottle like the one found on 

the appellant at the drug bust. The bottle was empty and was labeled “Kush. All 

legal.” The agent testified that spice can be packaged in many ways, including in 

these types of bottles.

3. The agents also found a green leafy substance on a coffee table in the living 

room. One of the agents suspected it was spice. This substance was never tested.

4. A large bag of a green leafy substance was found upstairs outside the room of 

the appellant’s roommate (the appellant’s bedroom was downstairs). The bag was 

labeled “Damiana Leaf.” An agent testified this was an ingredient used in spice. 

The other agent testified that he suspected it was spice because it resembled 

marijuana but did not smell like it. A smaller plastic bag was contained within the 

larger labeled bag.

The appellant never admitted possessing spice. Outside of the test results, the only 

evidence that the appellant possessed spice on 19 December 2012 came from the 

testimony of the agents about what they found in the appellant’s apartment, namely a 

small amount of green leafy substance found on a coffee table that was never tested but 

that an agent suspected was spice, and a bag of a green leafy substance the same agent 

suspected was spice but whose label indicated to another agent that it was an ingredient 

used in spice. In light of this, there is a definite possibility that the laboratory report 

 

16 During cross-examination of the agents, trial defense counsel raised issues about techniques they used to get the 

appellant to confess (which included using a small room, talking about his family, and lying to him), as well as 

pointing out significant internal inconsistencies within his oral and written statements.
15 ACM S32160

contributed to the guilty verdict for this specification.17 The report’s definitive 

conclusion that spice was found in the appellant’s apartment was vitally important to the 

prosecution’s claim the appellant possessed spice. 

For the spice use and distribution specifications, the government presented the 

additional evidence of the appellant’s admissions that he had distributed spice on one 

occasion and used it on multiple occasions during the charged time frames. In his 

findings argument, trial counsel told the panel that the evidence of the appellant’s 

distribution and use of spice was found in his confession and that the other evidence in 

the case demonstrated the credibility and reliability of that confession. Trial counsel’s 

argument relied heavily on the results of the laboratory testing as corroborating the 

appellant’s statement. For the distribution specification, the only evidence trial counsel 

urged the panel to rely on was the confession and the one pound bag allegedly containing

a large amount of spice which he argued made the confession credible.18 Trial counsel 

made a similar argument relative to the use specification, while also pointing out the 

suspected spice found on the table in the appellant’s apartment, the bottle found on the 

appellant after the drug bust, and the similar empty bottle found in his apartment. In his 

rebuttal argument, trial counsel again argued that the laboratory report demonstrated the 

reliability and believability of the appellant’s confession. Trial counsel’s repeated 

reliance on the results of the drug testing report as both direct evidence of the offenses 

and as corroborating evidence of the confession demonstrates the importance of this 

evidence to the prosecution’s case. 

Even if the evidence of the appellant’s admissions and the above evidence about 

what was found on his person and in his apartment would be sufficient to uphold the 

appellant’s convictions for using and distributing spice, we are required to assess whether 

there is a reasonable possibility that the laboratory report might have contributed to the 

distribution and use convictions, not whether the evidence was legally sufficient without 

the testimonial evidence. See Chapman, 386 U.S. at 23; Tearman, 72 M.J. at 62; Porter, 

72 M.J. at 338. After considering the Van Arsdall factors, we conclude the government 

has failed to meet its burden to demonstrate there was no reasonable possibility the 

erroneously admitted evidence contributed to the verdict. The panel in all likelihood 

gave some, if not great, weight to the laboratory report as independent evidence and when 

deciding whether to give any weight to the appellant’s admission to using and 

distributing spice. Its admission, therefore, was not harmless beyond a reasonable doubt,

and we cannot uphold the findings of guilty to these specifications.

 

17

 As the military judge did not instruct the panel that the report had only been admitted for the limited purpose of 

corroborating the appellant’s confession, the panel was able to consider it as substantive proof of the appellant’s 

guilt.

18 Notably, the large bag tested negative for any controlled substances. It was the smaller bag inside this large bag 

that had a positive result during the Sumter County testing.
16 ACM S32160

In sum, for all specifications relating to spice, we are not convinced beyond a 

reasonable doubt that the laboratory report was unimportant in light of everything else the 

court members considered on the issue in question. As there is a reasonable possibility 

the laboratory report contributed to the verdict, we cannot affirm these convictions 

because we are not convinced beyond a reasonable doubt that the error “was not a factor 

in obtaining that conviction.” Othuru, 65 M.J. at 377 (quoting United States v. Kreutzer, 

61 M.J. 293, 299 (C.A.A.F. 2005)). Therefore, we set aside and dismiss Charge I and its 

three specifications, and Charge IV and its specification. 

Sentence Reassessment

Having set aside a finding of guilty to two charges and their specifications, we 

must now “determine what sentence the court-martial would probably have adjudged if 

the error had not been committed at trial.” United States v. Davis, 48 M.J. 494, 495 

(C.A.A.F. 1998). Our superior court has held that a court of criminal appeals can 

reassess a sentence to cure the effect of prejudicial error where that court can be 

confident “that, absent any error, the sentence adjudged would have been of at least a 

certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). This court has 

“broad discretion” when reassessing sentences. United States v. Winckelmann, 73 M.J. 

11, 12 (C.A.A.F. 2013). 

In determining whether to reassess a sentence or order a rehearing, we consider the 

totality of the circumstances with the following as illustrative factors: (1) dramatic 

changes in the penalty landscape and exposure, (2) the forum, (3) whether the remaining 

offenses capture the gravamen of the criminal conduct, (4) whether significant or 

aggravating circumstances remain admissible and relevant, and (5) whether the remaining 

offenses are the type with which we as appellate judges have the experience and 

familiarity to reliably determine what sentence would have been imposed at trial. 

Winckelmann, 73 M.J. at 15–16. We find we are able to reassess the sentence on the 

basis of the error noted and do so after conducting a thorough analysis of the record in 

accordance with the principles articulated by our superior court. Because there are 

factors favoring both sides in this case, we set out our rationale in some detail below.

Although we have set aside all the spice offenses, the appellant remains convicted 

of wrongfully distributing marijuana on multiple occasions and wrongfully appropriating 

military property. The penalty landscape is not significantly different because the 

remaining offenses still reach the statutory maximum for a special court-martial. We 

recognize the appellant chose to be sentenced by members, which generally weighs in 

favor of remanding a case for a rehearing on sentence. See Winckelmann, 73 M.J. at 16 

(observing “judges of the courts of criminal appeals are more likely to be certain of what 

a military judge would have done as opposed to members”). The remaining marijuana 

offense captures the gravamen of the appellant’s criminal conduct—being involved with 

illegal drugs and involving others (including military members) in that activity by 
17 ACM S32160

distributing to them. Furthermore, the offenses of which the appellant remains convicted 

are those with which we are experienced and familiar in determining sentence 

appropriateness, and our combined experience provides a substantial basis to judge how 

members tend to treat such offenses.

Under the totality of the circumstances, we are confident that we can reliably 

determine the members would have imposed no less than a reduction to E-1, confinement 

for 3 months, and a bad-conduct discharge.

Challenge for Cause

The appellant argues the military judge erroneously denied a challenge for cause 

against Lieutenant Colonel (Lt Col) JJ for implied bias because he had regular contact 

with members of the legal office based on his role as a commander on base. During voir 

dire, Lt Col JJ indicated he had received this legal advice from one of the two trial 

counsel in the case, including as recently as a week before the appellant’s trial. Lt Col JJ 

also described a situation involving an Airman in his squadron who had used spice.

Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that a member shall be 

excused for cause whenever it appears that the member “[s]hould not sit as a member in 

the interest of having the court-martial free from substantial doubt as to legality, fairness, 

and impartiality.” “This rule encompasses challenges based upon both actual and implied 

bias.” United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing 

United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).

The test for assessing an R.C.M. 912(f)(1)(N) challenge for implied bias is 

“objective, viewed through the eyes of the public, focusing on the appearance of 

fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting 

Clay, 64 M.J. at 276) (internal quotation marks omitted). “The hypothetical ‘public’ is 

assumed to be familiar with the military justice system.” Id. (citing United States v. 

Downing, 56 M.J. 419, 423 (C.A.A.F. 2002)). We review issues of implied bias “under a 

standard less deferential than abuse of discretion but more deferential than de novo.”

United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004) (quoting United States v. 

Miles, 58 M.J. 192, 195 (C.A.A.F. 2003)) (internal quotation marks omitted). “[M]ilitary 

judges must follow the liberal-grant mandate in ruling on challenges for cause, but we 

will not overturn the military judge’s determination not to grant a challenge except for a 

clear abuse of discretion in applying the liberal-grant mandate.” United States v. White, 

36 M.J. 284, 287 (C.M.A. 1993). “The liberal grant mandate recognizes the unique 

nature of military courts-martial panels, particularly that those bodies are detailed by 

convening authorities and that the accused has only one peremptory challenge.”

United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006) (citing United States v. 

James, 61 M.J. 132, 139 (C.A.A.F. 2005)).
18 ACM S32160

The military judge did not abuse her discretion in denying the challenge for cause 

against Lt Col JJ. In response to questioning, Lt Col JJ fully explained his professional 

dealings with the legal office and the case of the Airman in his squadron. He also 

understood the government’s obligation regarding the burden of proof in the case and 

stated that he did not believe confinement or a punitive discharge was required if the 

appellant was convicted. The military judge observed Lt Col JJ’s demeanor when 

answering the individual questions and considered both actual bias and implied bias with 

the liberal grant mandate. We find no error in the military judge’s denial of the challenge 

for cause against Lt Col JJ.

Appellate Review Time Standards

In a supplemental assignment of error filed in April 2015, the appellant argues, 

citing Moreno, 63 M.J. at 135, that the unreasonable post-trial delay from the date the 

case was docketed with this court in July 2013 until this opinion warrants relief. The 

appellant further cites United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), noting this 

court’s responsibility to affirm only those findings and sentence that should be approved.

We review de novo whether an appellant has been denied the due process right to 

speedy post-trial review and whether any constitutional error is harmless beyond a 

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

presumption of unreasonable delay arises when appellate review is not completed and a 

decision is not rendered within 18 months of docketing the case before this court. 

Moreno, 63 M.J. at 142. The Moreno standards continue to apply as a case continues 

through the appellate process; however, the Moreno standard is not violated when each 

period of time used for the resolution of legal issues between this court and our superior 

court is within the 18-month standard. United States v. Mackie, 72 M.J. 135–36 

(C.A.A.F. 2013); see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010). 

If the Moreno standards are violated, the delay is presumptively unreasonable and 

triggers an analysis of the four factors elucidated in Barker v. Wingo, 407 U.S. 514 

(1972), and Moreno. See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011). 

Those factors are “(1) the length of the delay; (2) the reasons for the delay; (3) whether 

the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.” 

United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 507 U.S. at 

530; United States v. Morita, 73 M.J. 548, 567 (A.F. Ct. Crim. App. 2013).

The time between docketing with this court and our initial decision was facially 

unreasonable, triggering analysis according to the Barker factors. When we assume error 

but are able to directly conclude that any error was harmless beyond a reasonable doubt, 

we do not need to engage in a separate analysis of each factor. See Allison, 63 M.J. at 

370. This approach is appropriate in the appellant’s case. The post-trial record contains 

no evidence that the delay has had any negative impact on the appellant. Even the “stress 
19 ACM S32160

and anxiety” argued by the appellant is minimal in its impact and no more than any other 

appellant waiting appellate review. We recognize that our decision today grants the 

appellant some relief by setting aside and dismissing three specifications, but there is no 

reason to believe the appellant was prejudiced in any way by waiting for this relief.

Furthermore, when there is no showing of prejudice under the fourth factor, “we 

will find a due process violation only when, 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 totality of the circumstances 

and the entire record, when we balance the other three factors, we find the post-trial delay 

in this case not to be so egregious as to adversely affect the public’s perception of 

fairness and integrity of the military justice system. We are convinced the error is 

harmless beyond a reasonable doubt.

Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts to grant 

sentence relief for excessive post-trial delay without the showing of actual prejudice 

required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif, 57 M.J. at 224; see also 

United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Gay, 

__ M.J. __, ACM 38525 (A.F. Ct. Crim. App. 12 June 2015), we identified a list of 

factors to consider in evaluating whether Article 66(c), UCMJ, relief should be granted 

for post-trial delay. Those factors include how long the delay exceeded appellate review 

standards, the reasons for the delay, whether the government acted with bad faith or gross 

indifference, evidence of institutional neglect, harm to the appellant or to the institution, 

whether relief is consistent with the goals of both justice and good order and discipline, 

and whether this court can provide any meaningful relief. Id., slip op. at 11. No single 

factor is dispositive, and we may consider other factors as appropriate. Id., slip op. at 12. 

We have the authority to tailor an appropriate remedy without giving the appellant a 

windfall. See Tardif, 57 M.J. at 225.

After considering the relevant factors in this case, we determine that no additional

relief is warranted. We acknowledge that the time between docketing and issuing this 

opinion exceeded established standards. However, even analyzing the entire period from 

the time the case was first docketed in late July 2013 until today, we find there was no 

bad faith or gross negligence in the post-trial processing. The record of trial is 

5 volumes, including a 586 page transcript. The appellant’s assignment of errors was 

filed in February 2014, and a reply brief in March 2014, well after he was released from 

confinement from his adjudged sentence. After conducting its review in advance of the 

18-month Moreno standard, this court ordered oral argument on an issue not fully 

addressed by the parties’ briefs. After that argument was held in February 2015, this 

court continued its review of this complex case, to include incorporating recently issued 

decisions by our superior court. We find no evidence of harm to the integrity of the 

military justice system by allowing the full appellate review of this issue. Based on our 
20 ACM S32160

review of the entire record, setting aside any of the remaining portions of the appellant’s 

sentence would be an intolerable windfall. We conclude that additional sentence relief 

under Article 66, UCMJ, is not warranted.

Conclusion

Charge I and its three specifications and Charge IV and its specification are set 

aside and dismissed. We affirm the remaining findings. We reassess the sentence to 

reduction to E-1, confinement for 3 months, and a bad-conduct discharge. 

The approved findings, as modified, and sentence, as reassessed, are correct in law 

and fact, and no error materially prejudicial to the substantial rights of the appellant 

remains. Articles 59(a) and 66(c), UCMJ. Accordingly, the findings, as modified, and 

the sentence, as reassessed, are AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Deputy Clerk of the Court