UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201400241

_________________________

UNITED STATES OF AMERICA

Appellee

v.

DAVID MONTALVO III

Lance Corporal (E-3), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel C.J. Thielemann, 

U.S. Marine Corps.

For Appellant: James S. Trieschmann, Jr., Esq.; Lieutenant 

Christopher C. McMahon, JAGC, U.S. Navy.

For Appellee: Major Cory A. Carver, U.S. Marine Corps; Lieutenant 

James M. Belforti, JAGC, U.S. Navy.

_________________________

Decided 15 December 2016

_________________________

Before CAMPBELL, RUGH, and HUTCHISON, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

RUGH, Judge:

A general court-martial consisting of officer and enlisted members 

convicted the appellant, contrary to his pleas, of two specifications of 

rape in violation of Article 120, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 920. The members sentenced the appellant to 

nine years’ confinement, reduction to pay grade E-1, and a 

dishonorable discharge. The convening authority (CA) approved the 

sentence as adjudged.
United States v. Montalvo, No. 201400241

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The appellant originally raised two assignments of error (AOE): (1) 

that the military judge erred by denying the appellant’s request for a 

continuance1 and (2) that the appellant was denied his Sixth 

Amendment right to effective counsel in the post-trial phase of his 

court-martial.2

On 27 May 2015 this court found merit in AOE (1) and set aside the 

findings and sentence.3 However, on 10 July 2015 we reconsidered our 

decision and returned the record for a hearing held pursuant to United 

States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). On 3 February 2016 we 

returned the record for an additional DuBay hearing, and the record 

and results of the hearing were returned to us on 29 April 2016.

The appellant now raises as supplemental error that the military 

judge erred in the findings instructions provided to the court-martial 

members.4 

 

1 I. WHETHER THE MILITARY JUDGE ERRED IN LIMITING [THE 

APPELLANT’S] CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY 

DENYING A REQUEST FOUR DAYS BEFORE TRIAL FOR A CONTINUANCE TO

INVESTIGATE NEWLY DISCOVERED INFORMATION WHEN SUCH 

INFORMATION WAS RECEIVED LATE DUE TO GOVERNMENT’S FAILURE TO

TIMELY COMPLY WITH THE RULES OF DISCOVERY AND THE DEFENSE WAS 

OTHERWISE INCAPABLE OF DISCOVERING THIS INFORMATION BECAUSE 

THEY WERE PROHIBITED FROM QUESTIONING THE ALLEGED VICTIM. 

2 II. WHETHER [THE APPELLANT] WAS DENIED HIS SIXTH AMENDMENT 

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL 

PHASE OF HIS COURT-MARTIAL WHEN DEFENSE COUNSEL FAILED TO 

REQUEST DEFERMENT OF CONFINEMENT AND DEFERMENT IN 

REDUCTION OF RANK DESPITE THE FACT THAT [THE APPELLANT] 

SPECIFICALLY REQUESTED THAT THEY DO SO.

3 United States v. Montalvo, No. 201400241, 2015 CCA LEXIS 218 (N-M. Ct. 

Crim. App. 27 May 2015).

4 III. THE MILITARY JUDGE IS REQUIRED TO ACCURATELY INSTRUCT 

THE MEMBERS ON THE LAW. HERE, THE MILITARY JUDGE INSTRUCTED 

THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, 

YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE 

CRIME CHARGED, YOU MUST FIND HIM GUILTY.” WAS THIS PLAIN ERROR?

This supplemental AOE was inadvertently styled as AOE (4) instead of AOE (3). 

Regardless, in accordance with our holding in United States v. Rendon, __M.J. __, 

2016 CCA LEXIS 643, at *26 (N-M. Ct. Crim. App. 1 Nov 2016), we summarily reject 

the supplemental AOE. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
United States v. Montalvo, No. 201400241

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Having carefully considered the record of trial, oral argument, and 

the pleadings, we find no error materially prejudicial to the appellant 

and affirm the findings and sentence below.

I. BACKGROUND

At around 2200 on 4 October 2012, Ms. VAM and her coworker 

visited the barracks located on board Camp Pendleton, California, to 

meet up with her coworker’s boyfriend, a Marine. VAM was introduced 

to the appellant, and the four of them—VAM, her coworker, her 

coworker’s boyfriend, and the appellant—socialized in the appellant’s 

room for several hours. VAM and her coworker then made their “good 

byes” and returned to the coworker’s home. 

At around 0300, VAM’s coworker received a text message from her 

boyfriend asking her to come back to the barracks for the night. VAM 

accompanied her, uncomfortable with her friend driving back to the 

base alone so late at night. They again met up in the appellant’s room, 

finding the appellant extremely intoxicated. Shortly thereafter, VAM 

and the appellant were left alone in the room when her coworker and 

her coworker’s boyfriend left. 

At around 0330 the appellant asked for VAM’s help to find his 

phone. She complied, calling him from her phone to hear it ring. 

Immediately after this, the appellant moved behind her and began 

removing her clothing. Ignoring her pleas to stop, the appellant pushed 

VAM onto his bed and forced her to engage in vaginal and anal 

intercourse. Afterwards, VAM dressed and lay awake in the room’s 

other bed until around 0630 when the appellant departed for morning 

muster. 

VAM reported the assault that evening. A subsequent medical 

exam revealed injuries to VAM’s vagina and rectum. She had large 

bruises on her breast and arm. The appellant’s DNA was discovered on 

VAM’s body and in the crotch of her underwear, and VAM’s DNA was 

discovered in the crotch of the appellant’s underwear. 

II. DISCUSSION

A. Denial of the defense’s request for continuance5

The case was referred to a general court-martial on 26 June 2013, 

and trial was set for 21 October 2013. However, on 8 October 2013 the 

military judge granted a continuance until 27 January 2014 due to the 

 

5 Raised as AOE (1).
United States v. Montalvo, No. 201400241

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unavailability of VAM’s coworker, who was a potential defense 

witness. 

In mid-December 2013, the defense requested the government 

subpoena VAM’s phone and text message records based on apparent 

discrepancies between VAM’s previous statements and the forensic 

evaluation of her cell phone. The government agreed and subpoenaed 

the records from VAM’s service provider, AT&T, the day after the 

defense request. 

When, by 22 January 2014, the records still were not available, the 

defense requested an open continuance until the records could be 

produced. As a substitute for the AT&T records, VAM voluntarily 

provided a copy of her phone bill for the relevant time period. The bill 

showed 86 text messages between VAM and an unknown individual 

beginning on the evening of 4 October 2012 and ending at 0252 on 5 

October 2012, about 30 minutes before the assault. 

Applying United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), the 

military judge denied the appellant’s continuance request, crediting in 

part his belief that, “there’s already sufficient basis in the record for 

many levels of impeachment of the victim.”6

By trial, the defense had identified the unknown text messenger as 

Mr. DMN. While defense counsel was unable to communicate with 

DMN before trial, he did cross-examine VAM on her interactions with 

him: 

Q. [civilian defense counsel]. Around 10:00 p.m. [on 4 

October 2012]. Had you made any plans to see anyone 

else that evening?

A. [VAM]. No.

Q. Okay. Were you texting with anybody that evening?

A. Probably.

Q. If you were texting with somebody that evening, 

who do you think that was?

A. It could have been quite a few people.

Q. Okay. Is it possible that you were texting with only 

one person that evening?

 

6 Record at 235.
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A. I believe I was texting a few more than one person 

that evening.

Q. Okay. If I tell you a phone number, I just want to 

see if you recognize a particular number . . .

A. I’m sure that I know the number, but I don’t know 

who it belongs to.

Q. Okay. Just as you are sitting here, you don’t 

recognize that number?

A. Right.7

Later, counsel returned to this line of attack:

Q. Do you recall whether or not you were texting 

repeatedly one person throughout that evening?

A. I’m sure that I was, but I don’t remember 

specifically who it was.

Q. Okay. Does the name [DMN] ring a bell?

A. No.

Q. You are not reminded --

A. I know a few people [with that first name]. I’m not 

sure of last names.

Q. Okay. The name . . . would have a really kind of 

unusual spelling? . . . Is that --

A. I don’t know how to spell -- I don’t pay attention to 

the spelling of my friends’ names.8

The defense counsel also cross-examined the Naval Criminal 

Investigative Service (NCIS) special agent, who originally questioned 

both VAM and her coworker, regarding their interactions with DMN:

Q [civilian defense counsel]. Did you -- did any part of 

the investigation deal with an issue of whether or not 

between the time that [VAM] alleges that she was at 

 

7 Id. at 682.

8 Id. at 690.
United States v. Montalvo, No. 201400241

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Camp Pendleton the first time when she leaves with [her 

coworker] and then comes back the second time where the 

alleged assault takes place[?] Did you take any 

investigations regarding that period of time?

A [NCIS special agent]. Other than interviewing her 

friend that was with her, no.

. . . .

Q. . . . You had a disconnect in the statement of one 

witness and another witness as to the issue of whether or 

there [sic] was a third party that they met with between 

the visits to Camp Pendleton.

A. Correct.

Q. Right?

A. Correct.

Q. One witness is saying, yes, we did. We hung out 

with him for a while, and one is saying, that [n]ever 

happened at all.

A. Correct.

. . . .

A. [The coworker] says that there was – I mean, our –

[VAM] says that she never met anybody at her house on 

that date.

Q. She says they didn’t – she says that they did not –

A. Correct.

Q. But [the coworker] said that they did, didn’t she?

A. Correct.9

. . . .

 

9 Id. at 582-84.
United States v. Montalvo, No. 201400241

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Q. Through midnight all the [sic] up to 2:52 a.m. that 

[VAM] was texting and exchanged 86 texts sent and 

received with this person. Would that surprise you to 

know that?

A. Yes.10

This point was reiterated by the defense counsel during 

closing argument:

What about the differing accounts between [the 

coworker] and [VAM]? Remember, they were having a –

there was a disconnect in NCIS’s mind whether or not 

between the two trips to Pendleton they might have met 

another man. Okay, significant, insignificant, don’t know, 

but it was a story in which [VAM] is saying one thing and 

another witness is saying another.11

Neither VAM’s coworker nor the coworker’s boyfriend testified at 

trial, and the question of the third man was not raised other than as a 

point of inconsistency in VAM’s testimony.

On 10 July 2015 the record was returned for a DuBay hearing to 

explore the content and availability of evidence about the 86 text 

messages exchanged between DMN and VAM. On 3 February 2016 the 

record was returned for an additional DuBay hearing to explain the 

content of VAM’s phone record produced by AT&T at the first DuBay

hearing.

During those hearings, the DuBay judge determined that DMN and 

VAM exchanged texts on 4 and 5 October 2012 after meeting through 

an online dating service.12 DMN was active in online dating and 

regularly communicated with and dated the women he met online. 

DMN typically engaged the women he met in a series of “20 

Questions,” texting questions ranging from innocuous to provocative in 

order to gage whether there was mutual interest.13

 DMN and VAM began messaging each other on 4 October 2012 at 

1913 and exchanged text messages with regularity (some 80 messages 

back and forth) until 5 October 2012 at 0252. DMN then texted VAM 

 

10 Id. at 622.

11 Id. at 910.

12 We will accept the factual findings of a DuBay military judge unless they are 

clearly erroneous. United States v. Brownfield, 52 M.J. 40, 44 (C.A.A.F. 1999). 

13 Appellate Exhibit (AE) LXXIII at 2.
United States v. Montalvo, No. 201400241

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later that evening at 2123 and again a day later at 1345.14 He received 

no response to either message. 

DMN did not recall that any of their messages discussed the 

appellant or related to anything of a sexual nature.

DMN regularly deleted his text messages within a few weeks of the 

other person appearing to lose interest. When asked about the chances 

that he would still have copies of the text messages between him and 

VAM by the time of the appellant’s court-martial, he responded, “slim 

to none” and “almost impossible.”15 Likewise, Verizon—DMN’s service 

provider—maintained text message content for only three to five days, 

and AT&T didn’t maintain text message content at all. 

A review of the records of activity for VAM’s phone showed an 

exchange of messages with DMN on 5 October 2012 ending at 0252. 

There were no additional text messages until her phone received an 

incoming message at 0912 later that morning. VAM’s phone placed one 

call to the appellant’s phone on 5 October 2012 at 0332 that lasted for 

17 seconds but was not answered. Her phone did not send or receive 

another call until an incoming call was placed at 0709 later that 

morning. VAM’s phone electronically transferred data on 5 October 

2012 at 0249 for around 30 minutes. No other data transfer occurred 

until after 1130 later that morning. According to the records, VAM’s 

phone wasn’t used between 0332 and 0730 on 5 October 2012.16

Regardless, the appellant still maintains that the military judge 

abused his discretion in denying the defense’s second continuance 

request and that this denial prejudiced the appellant’s ability to 

confront VAM about contradictions between her testimony, her phone 

records, and DMN’s statement. 

At trial, the appellant shoulders the burden by a preponderance of

the evidence to show “reasonable cause” for the continuance request,

United States v. Allen, 31 M.J. 572, 620, 623 (N.M.C.M.R. 1990), aff'd,

33 M.J. 209 (C.M.A. 1991), and we will reverse a military judge’s

decision on a continuance request only for an abuse of discretion.

United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997). However, we

need not decide whether the military judge abused his discretion if we

first resolve that the appellant was not prejudiced by the denial of a

 

14 See AE LXIX at 4.

15 First DuBay Record at 44.

16 See AE LXXXIV.
United States v. Montalvo, No. 201400241

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continuance. United States v. Wellington, 58 M.J. 420, 425 (C.A.A.F.

2003). For non-constitutional error,17 the appellant is warranted relief

only when he demonstrates that the error materially prejudiced a

substantial right. Art. 59(a), UCMJ, 10 U.S.C. § 859 (2012). 

Here the appellant was not materially prejudiced by the denial of

the continuance as the matters that might have been discovered with 

the addition of time would have been cumulative and of no more use 

than what was already available to them at trial. 

The phone records and explanative testimony provided at the 

DuBay hearings closely corroborated VAM’s testimony at trial. From 

before 0300 to after 0730 on 5 October 2012, VAM made use of her 

phone only once—the call she made to the appellant’s phone at 0330, 

moments before the assault occurred. Otherwise, she made no other 

calls, exchanged no text messages, and received no data indicative of 

other smart phone usage. This is wholly consistent with her 

description of the attack.

Similarly, DMN’s testimony at the DuBay hearing was largely 

consistent with VAM’s trial testimony. Neither DMN nor VAM 

appeared to remember the other with any great specificity, 

corroborative of a short-term, online encounter that failed to develop 

much further. At the DuBay hearing, DMN vaguely recognized 

pictures of VAM and her coworker as the same two women he visited 

 

17 We recognize that, in some cases, the denial of a continuance may impact an 

appellant’s meaningful opportunity to present a complete defense. Under such 

circumstances where the appellant’s Sixth Amendment guarantee to the effective

assistance of counsel is infringed, we test for harmlessness beyond reasonable doubt.

See Kansas v. Ventris, 556 U.S. 586, 590 (2009) (holding that the Sixth Amendment

right to counsel includes “the opportunity for a defendant to consult with an attorney

and to have him investigate the case and prepare a defense for trial”) (citation and

internal quotation marks omitted); United States v. Gaddis, 70 M.J. 248, 252

(C.A.A.F. 2011) (holding that the right to counsel extends to the ‘“meaningful

opportunity to present a complete defense”’) (quoting Holmes v. South Carolina, 547

U.S. 319, 324 (2006)); Chapman v. California, 386 U.S. 18, 24 (1967) (“[B]efore a

federal constitutional error can be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt.”). But see United States v.

Bartlett, 66 M.J. 426, 430 (C.A.A.F. 2008) (“There is a strong presumption that an

error is not structural,” meaning that most are not significant enough to entirely

“obviat [e] the need to show prejudice” at all) (citing Rose v. Clark, 478 U.S. 570, 579

(1986)).

Under the circumstances of this case, we find the right to the effective assistance

of counsel was not implicated by the military judge’s ruling, and we apply the

prejudice standard applicable to non-constitutional error.
United States v. Montalvo, No. 201400241

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one night in the fall of 2012 when the three socialized at a house, 

briefly went shopping, and made food back at the house before he was 

ushered out unceremoniously. However, DMN’s memory and 

description of that meeting did not correlate with the frequency of his 

text messages with VAM as reflected in the AT&T records for 4 and 5 

October 2012, making it very unlikely that this meeting occurred on 

the night of 4 October 2012. Regardless, he never saw either woman 

again after that meeting. Likewise, VAM denied making plans to meet 

with DMN—or anyone else—in between visits to Camp Pendleton on 4 

October 2012.

DMN’s vague memory of meeting VAM and VAM’s denial of 

meeting anyone the night of 4 October 2012 were arguably 

contradictory. And the defense made much out of this proposed 

contradiction; challenging the victim twice on the matter, examining 

the NCIS special agent at length about it, and raising it again during 

closing argument. However, despite previously characterizing the 

defense’s cross-examination on this matter as “devoid of impeachment 

value,”18 it now appears that all possible value was extracted from the 

possible contradiction, and further investigation has yielded nothing 

else of relevance. Sometimes when life gives you lemons, you can only 

make lemon juice. 

B. Post-trial ineffective assistance of counsel19

In an unsworn declaration submitted to the court on 30 October

2014, the appellant alleged that, while meeting with his trial defense 

counsel for the purpose of preparing an appellate rights statement 

prior to the announcement of sentence, he instructed counsel to 

request deferment of any sentence to confinement and reduction in pay 

grade. This desire was reflected in a statement dated 30 January 2014 

and signed by the appellant and his three trial defense counsel.20

On 11 June 2014, the trial defense counsel submitted a robust 

request for clemency which included thirty enclosures and requested 

the CA set aside the findings or, in the alternative, reduce the term of 

confinement or the dishonorable discharge. However, neither the 

defense’s clemency request, nor the accompanying letter from the 

appellant, requested deferment of confinement or reduction in grade. 

On 19 May 2014, prior to submission of defense’s clemency request, the 

 

18 Montalvo, 2015 CCA LEXIS 218, at *16.

19 Raised as AOE (2).

20 Motion to Attach Affidavit of the Appellant of 30 Oct 2014, Appendix 2.
United States v. Montalvo, No. 201400241

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staff judge advocate (SJA) provided his recommendation to the CA, but 

noted that, “[t]here have been no requests to defer any part of the 

sentence . . . .”21 The 16 June 2014 addendum to the SJA’s 

recommendation was silent on any deferment requests. On 18 June 

2014, the CA approved the sentence as adjudged noting that he had 

received no requests to defer any part of the sentence.

The Sixth Amendment right to effective assistance of counsel at 

courts-martial is a fundamental right of service members. United 

States v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000) (citing United States 

v. Palenius, 2 M.J. 86 (C.M.A. 1977)). That right extends to post-trial 

proceedings. United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). 

Ineffective assistance of counsel involves a mixed question of law and 

fact, but whether counsel was deficient and whether the deficiency was 

prejudicial are reviewed de novo. United States v. Anderson, 55 M.J. 

198, 201 (C.A.A.F. 2001); see also United States v. McClain, 50 M.J. 

483, 487 (C.A.A.F. 1999).

We apply the two-prong test set forth by the Supreme Court in 

Strickland v. Washington, 466 U.S. 668, 687 (1984) to determine 

whether counsel rendered ineffective representation. “The burden on 

each prong rests with the appellant challenging his counsel’s 

performance.” United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005).

The first prong requires the appellant to show that counsel’s 

performance fell below an objective standard of reasonableness,

indicating that counsel was not functioning as counsel within the 

meaning of the Sixth Amendment. United States v. Terlep, 57 M.J. 344,

349 (C.A.A.F. 2002). Our review of counsel’s performance is highly 

deferential and is buttressed by a strong presumption that counsel 

provided adequate representation. United States v. Garcia, 59 M.J. 

447, 450 (C.A.A.F. 2004). 

The second prong requires a showing of prejudice resulting from 

counsel’s deficient performance. Strickland, 466 U.S. at 687. With 

regards to post-trial claims of ineffective assistance of counsel, courts 

must give an appellant the benefit of the doubt and find that “there is 

material prejudice to the substantial rights of an appellant if there is 

an error and the appellant ‘makes some colorable showing of possible 

prejudice.’” United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) 

(quoting United States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 

1997)). If the appellant fails to make a “colorable showing of possible

 

21 SJA Recommendation at 2. 
United States v. Montalvo, No. 201400241

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prejudice,” we need not determine whether trial defense counsel’s 

performance was so deficient as to render him ineffective.22

In general, deferment of a sentence to confinement or reduction in 

grade “is a postponement of the running of the sentence.” RULE FOR 

COURTS-MARTIAL (R.C.M.) 1101(c)(1), MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2012 ed.) Deferment is not a form of clemency.23 The 

appellant has the burden of demonstrating that his interest and the 

interest of the community in deferral outweigh the community’s 

interest in imposition of the punishment on its effective date. R.C.M. 

1101(c)(3). Factors to consider in determining whether to defer a 

sentence to confinement or reduction in grade include: the probability 

of flight; the probability of the commission of other offenses, 

intimidation of witnesses, or interference with the administration of 

justice; the nature of the offenses including the effect on the victim; the 

sentence adjudged; the command’s immediate need for the accused; the 

effect of deferment on good order and discipline; and the accused’s 

character, mental condition, family situation, and service record. Id.

Here, the appellant has provided little upon which a decision to 

defer his sentence to confinement or reduction in grade might have 

been based.24 Absent such evidence, and given the nature of the 

offenses of which the appellant was convicted and his sentence to nine 

years’ confinement, we conclude that there has not been a colorable 

showing of possible prejudice.25

 

22 See United States v. Datavs, 71 M.J. 420, 424-25 (C.A.A.F. 2012) (noting that 

courts are not required to determine whether counsel’s performance was deficient 

before first examining whether the appellant suffered any prejudice).

23 R.C.M. 1101(c)(1), Discussion.

24 See Unites States v. Nicks, No. 20110658, 2013 CCA LEXIS 789, *5-9, 

unpublished op. (A. Ct. Crim. App. 30 Sep. 2013) (providing a helpful discussion of 

the R.C.M. 1101 factors as they relate to requests for deferment and waiver of 

forfeitures). Moreover, simply indicating clemency desires on an appellate rights 

form does “not set forth a prima facie case of ineffective assistance of counsel.” United 

States v. Axtell, 72 M.J. 662, 664-65 (A. Ct. Crim. App. 2013) (en banc).

25 Nicks, 2013 CCA LEXIS 789, at *8-9 (holding that the “[a]ppellant’s silence on 

appeal regarding the R.C.M. 1101(c)(3) burden and the factors articulated therein 

leads to but one conclusion: [the] appellant has failed to make a colorable showing of 

possible prejudice”).
United States v. Montalvo, No. 201400241

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III. CONCLUSION

The findings and the sentence, as approved by the CA, are affirmed.

 For the Court 

 R.H. TROIDL 

 Clerk of Court