UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39734

________________________

UNITED STATES

Appellee

v.

Danber S. ALBARDA

Senior Airman (E-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary 

Decided 22 February 2021

________________________

Military Judge: W. Shane Cohen.

Approved sentence: Dishonorable discharge, confinement for 6 years,

and reduction to E-1. Sentence adjudged on 8 March 2019 by GCM 

convened at Fort George G. Meade, Maryland.

For Appellant: Major Rodrigo M. Caruço, USAF; Major Yolanda D. 

Miller, USAF.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant 

Colonel Matthew J. Neil, USAF; Major Jessica L. Delaney, USAF; Mary 

Ellen Payne, Esquire.

Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.

Judge ANNEXSTAD delivered the opinion of the court, in which Senior 

Judge MINK and Judge KEY joined. 

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

ANNEXSTAD, Judge:
United States v. Albarda, No. ACM 39734

2

Contrary to his pleas, Appellant was convicted by a general court-martial 

composed of officer and enlisted members of one charge and three 

specifications of assault consummated by a battery with force likely to produce 

death or grievous bodily harm upon a child under the age of 16 years, and one 

charge and specification of endangering the health of the same child, in 

violation of Articles 128 and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 928, 934.1,2 Appellant was sentenced to a dishonorable discharge, 

confinement for six years, forfeiture of all pay and allowances, and reduction 

to the grade of E-1. The convening authority disapproved the part of the 

sentence extending to the adjudged forfeitures, but approved the remainder of 

the adjudged sentence.3

On appeal, Appellant raises 15 issues before this court: (1) whether trial 

counsel committed prosecutorial misconduct during his sentencing argument

by improperly implying that Appellant would reoffend and by urging the panel 

not to consider evidence that Appellant introduced as mitigation; (2) whether 

the military judge erred in failing to take curative measures after trial 

counsel’s sentencing argument; (3) whether Appellant received a fair 

sentencing hearing; (4) whether Appellant had equal access to evidence; (5) 

whether trial counsel committed prosecutorial misconduct by failing to advise 

a potential witness to meet with Appellant’s trial defense counsel; (6) whether 

the military judge erred in admitting Appellant’s confession; (7) whether 

Appellant was denied the effective assistance of counsel under the Sixth 

Amendment4 due to trial defense counsel’s failure to object to the Government 

withdrawing a potential witness as a witness, failure to object to a government 

sentencing exhibit, and failure to object to trial counsel’s allegedly overzealous 

argument; (8) whether the military judge erred by not recognizing two defense 

character letters as expert testimony; (9) whether Appellant’s sentence was 

inappropriately severe; (10) whether trial counsel committed prosecutorial 

 1 References to the Uniform Code of Military Justice and Rules for Courts-Martial are 

to the Manual for Courts-Martial, United States (2016 ed.).

2 The members found Appellant guilty of Charge II and its Specification excepting the 

words “on divers occasions,” and not guilty of the excepted words. The members also 

specified “left leg/femur” with respect to the single injury for which they believed

Appellant failed to obtain proper medical care.

3 The convening authority deferred the adjudged reduction in grade and all adjudged 

and mandatory forfeitures of pay and allowances from 25 March 2019 until action. The 

convening authority also waived all of the mandatory forfeitures for a period of six 

months or release from confinement, whichever was sooner, with the waiver 

commencing on 3 July 2019. The total pay and allowances were directed to be paid to 

Appellant’s spouse.

4 U.S. CONST. amend. VI.
United States v. Albarda, No. ACM 39734

3

misconduct during his sentencing argument by improperly inflaming the 

passions of the panel; (11) whether the military judge erred in denying 

Appellant’s motion to appoint a forensic pathologist; (12) whether the military 

judge was impartial towards Appellant; (13) whether Appellant’s conviction of

Specification 2 of Charge I, assault consummated by a battery, is legally and 

factually sufficient; (14) whether Appellant was subjected to illegal pretrial 

punishment; and (15) whether the accumulation of assigned errors deprived 

Appellant of a fair trial and sentencing proceeding.5 We also consider two 

additional issues: (16) whether Appellant is entitled to relief for a violation of 

the 18-month standard for appellate review established in United States v. 

Moreno, 63 M.J. 129 (C.A.A.F. 2006); and (17) whether the action and general 

court-martial order (CMO) were properly prepared.

With respect to issues (2) through (8) and (11) through (15), we have 

carefully considered Appellant’s contentions and find they do not require 

further discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 

361 (C.M.A. 1987). As discussed below, we also find no relief is warranted for 

issues (1), (9), (10) and (16), but find, as to issue (17), that a corrected convening 

authority’s action and CMO are required. Finding no other error, we affirm, 

but return the record of trial to The Judge Advocate General for remand to the 

convening authority to withdraw the incomplete action and substitute a 

corrected action and court-martial order.

I. BACKGROUND

Appellant was convicted of physically abusing his nine-month-old biological 

daughter, NA. The abuse was first discovered in April 2018 by Dr. EH, a 

clinical assistant professor at the University of Maryland and an attending 

physician in the University of Maryland pediatric emergency room. Dr. EH had 

significant experience treating child abuse cases and was board certified in 

pediatrics, pediatric emergency medicine, and medical toxicology. In April 

2018, NA was transferred to the University of Maryland pediatric emergency 

department from an outside hospital facility with a femur fracture in her left 

leg. Dr. EH was working in the emergency room when NA was brought in by 

Appellant and his wife. Dr. EH served as the attending physician in the 

emergency department for the majority of NA’s treatment in the emergency 

department. Dr. EH initially spoke with the family to determine what 

happened. NA’s family, including Appellant, had no response for how NA 

sustained her injury. After assessing NA and learning that her family could 

 5 Issues (4) through (15) were raised pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982). Since issues (1) and (10) require the same analysis, we consider 

them together. 
United States v. Albarda, No. ACM 39734

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not provide an innocent explanation for NA’s injuries, Dr. EH suspected child 

abuse and determined that more care was needed than just care for the femur 

fracture. Because of her suspicions of child abuse, Dr. EH requested that NA 

receive a computed tomography (CT) scan of her head to determine whether 

there was any evidence of bleeding on the brain that could be the result of 

shaken baby syndrome. Dr. EH also had a skeletal survey performed to 

determine if there was any evidence of any additional fractures or healing 

fractures. As a result of the skeletal survey, Dr. EH was able to determine that 

NA had also suffered a tibia fracture of her right leg, which appeared to be 

older than the femur fracture in her left leg. A radiologist also reviewed the 

skeletal scan and noted a concern about a possible left posterior rib fracture. 

The treatment team determined that no treatment was needed for the right 

tibia fracture or possible rib fracture. NA’s left leg was placed in a cast. As a 

mandatory reporter, Dr. EH reported her suspicions of child abuse to local 

police and child protective services (CPS). 

The investigation was ultimately forwarded to the Air Force Office of 

Special Investigations (AFOSI). At that point, AFOSI had two possible 

suspects: Appellant and his wife, KA. Since KA was a civilian, AFOSI did not 

have jurisdiction over her, so the agents contacted the Federal Bureau of 

Investigation (FBI) to work a joint investigation. Before law enforcement 

officers were able to interview Appellant and his wife, CPS finished their case 

determination, and NA and her older brother were placed in foster care. During 

the case determination with CPS, KA and Appellant were asked to explain the 

injuries to NA. Appellant did not say anything, and instead began crying and 

went to the bathroom to vomit. 

Subsequently, AFOSI learned that Appellant had scheduled a meeting with 

the base chaplain, and they coordinated to meet Appellant and KA at the base 

chapel. Both voluntarily agreed to interview with law enforcement. During the 

two-hour interview, which was audio recorded, Appellant admitted that he 

could get “temperamental at times.” Appellant also admitted that it would be 

a “great idea” for him to get help with his anger issues. He also stated that on 

17 April 2018, he noticed that NA was fussier than normal and that she was

not kicking with both of her legs, which she would normally do. Initially, 

Appellant claimed that he thought NA had sustained her broken femur 

because he fell asleep while feeding her. Eventually, Appellant admitted that 

he had forcefully grabbed his daughter’s lower legs. He described that 

sometimes he would get irritated with her, especially when it was late at night 

and NA would be kicking at him. He admitted that he would sometimes 

deliberately squeeze NA’s legs and that he started doing this in March 2018. 

He also admitted that he squeezed his daughter’s chest and ribs a couple of 

times to get her to stop crying. Appellant told law enforcement officers that one 

of the times he was squeezing NA’s legs that she “kind of got into an awkward 
United States v. Albarda, No. ACM 39734

5

position and she kind of fell when I was holding onto it.” Appellant further 

acknowledged on this occasion that he was squeezing NA’s left leg, and jerked 

her up by her leg, to the point where her full body weight was hanging from 

her leg. He also admitted that he heard a snap “or something.” Appellant also 

confessed that he thought he “felt it crack” and that NA “just started crying” 

and “wouldn’t stop” crying. Finally, Appellant admitted that he did not want 

to take her to the hospital because he was afraid of his wife finding out what 

had happened. 

Appellant also spoke to his aunt, VS. She testified that Appellant told her 

in April 2018, while he was under investigation for the injuries to NA, that NA 

had sustained the broken femur when he held her leg down and she fell, and 

that when she fell he picked her up and squeezed her. 

At trial Lieutenant Colonel (Lt Col) SM, a pediatrician who specialized in 

child abuse cases, testified as an expert witness for the Government. In her 

review of the medical documents she noted that NA had an acute spiral 

fracture of the left femur, a healing fracture of the right tibia, and possible rib 

fractures—particularly of the sixth and seventh ribs. She also explained that 

a nine-month-old’s bones would be harder to break than an older child, due to 

the amount of cartilage present. Lt Col SM testified that the injuries to NA’s 

left leg were consistent with Appellant holding her left leg and jerking her up 

with her full body weight “dangling” by her leg. Lt Col SM also testified that 

the injuries to NA’s right leg and ribs were consistent with squeezing her right 

leg and torso.

II. DISCUSSION

A. Sentencing Argument

Appellant asserts that trial counsel committed prosecutorial misconduct 

during his sentencing argument. Specifically, Appellant contends that trial 

counsel’s sentencing argument: (1) improperly implied that there was a 

likelihood that Appellant would reoffend; (2) improperly urged to the panel not 

to consider evidence that Appellant introduced in mitigation and argued 

against Appellant’s right to make a sentence recommendation; and (3) 

improperly inflamed the passions of the panel when he said, “How dare he use 

his family as a shield!” We note at this point, while both briefs reference this 

quote, that this statement does not appear anywhere in the record. That said, 

trial counsel did argue during sentencing, “[a]nd you can’t break your child’s 

bones and then come in here and use your family as a shield to not get the 

punishment that you deserve,” and we will consider that statement instead.
United States v. Albarda, No. ACM 39734

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1. Additional Background

During the pre-sentencing phase of Appellant’s court-martial, trial counsel 

introduced Appellant’s personal data sheet and enlisted performance reports.

The only other evidence admitted by trial counsel was a photo of NA in the 

hospital. There was no victim unsworn statement submitted under Rule for 

Courts-Martial (R.C.M.) 1001A on behalf of NA. 

Appellant’s counsel introduced a documentary sentencing package that 

included six character letters, an autobiography, a family video, and a series 

of documents indicating that he had completed parenting and domestic 

violence classes. The family video consisted of Appellant sitting on a couch with 

his family, talking about how his biggest concern about going to jail was the 

impact it was going to have on his family. Appellant also introduced a written 

unsworn statement. 

In addition to the documentary evidence, Appellant’s stepfather testified 

on behalf of Appellant and told the members that a harsh sentence would have 

a negative impact on Appellant’s family, saying that, “not only would the 

punishment be for [Appellant], the punishment would be more [for] KA and 

the children. . . . to leave [KA] and the kids without their dad . . . would be the

worst punishment that could occur to them.” KA also testified and discussed 

the positive changes she witnessed in her husband during the pendency of his 

trial. During his oral unsworn statement, Appellant told the panel “I do not 

want to go to jail” and that jail “would be more of a punishment toward my 

family.” The military judge then provided instructions and specifically advised 

the members that “the [Appellant] is allowed to make a specific 

recommendation with respect to any particular sentence” and that it was 

“solely” up to the members to determine an appropriate sentence. 

Trial counsel then provided argument, during which trial defense counsel 

did not object. Trial defense counsel then argued. Each counsel was permitted 

one argument with no rebuttal. Following argument by both counsel, the 

military judge issued his final sentencing instructions to the members. The 

military judge specifically instructed the members that the arguments of trial 

counsel and the trial counsel’s recommendations are only individual 

“suggestions and may not be considered as the recommendation or opinion of 

anyone other than such counsel.” He reminded members that Appellant may 

make a personal request in relation to specific punishments. Finally, the 

military judge advised the members that defense counsel was speaking on 

behalf of Appellant. Following the final instructions the military judge asked

if there were any objections to the instructions. Trial defense counsel 

responded, “No objection.” Trial defense counsel did not raise any issues of 

improper argument or prosecutorial misconduct in Appellant’s clemency 

submission of 2 July 2019 to the convening authority.
United States v. Albarda, No. ACM 39734

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Appellant’s brief to this court highlights portions of trial counsel’s 

sentencing argument that he contends were improper and proof of 

prosecutorial misconduct. Appellant contends the following passages in the 

argument were improper because they suggested the possibility of Appellant 

reoffending:

But five years [of confinement] is a minimum amount necessary. 

And why is that? Because what if this happens again? What if 

those anger issues are not really those old anger issues [and] 

rear their ugly head late at night?

In five years, [NA] will be almost 7. She’ll be able to 

communicate. She’ll be able to talk to teachers, to social workers. 

She’ll be able to understand what’s going on around her. She’ll 

be sleeping through the night. Five years she can communicate 

what is happening to her. Because if this happens again, who’s 

going to speak for [NA]? [Appellant] didn’t do it. If he gets off 

light today, he’s not going to have an incentive to come forward.

. . .

But the hard truth is that sometimes it’s better to have a father 

in confinement when that father is abusive, when the father 

causes the injuries that he caused, it’s better to not have a father 

in that life—in the family’s life.

. . .

But even if you think that the risk [of him] doing this again is 

zero, and that’s a big if, five years is also an appropriate for—to 

rehabilitate [Appellant].

. . .

That’s why five years confinement as a floor is appropriate to 

make sure that this doesn’t happen again. That’s part of your 

job: Protection of society, protection of [NA]. Don’t come back 

with a sentence [that is] less than five years for [NA]’s sake to 

rehabilitate [Appellant] to protect this from happening again. 

Appellant also highlights the following argument by trial counsel, which he 

argues amounts to trial counsel improperly instructing the panel not to 

consider any mitigating evidence offered by Appellant.

But don’t forget that when defense counsel comes up here, that

they are [Appellant’s] mouthpiece and they are going to speak to 

you on behalf of him. And you need to ask yourselves, in what 

world is it appropriate that you can commit crimes and then 
United States v. Albarda, No. ACM 39734

8

come in and tell you what sentence you deserve? To do the cost 

benefit of your own crimes?

Finally, Appellant contends that trial counsel’s comment during his 

sentencing argument concerning Appellant using his family as a shield was 

improper because its “only purpose” was to “inflame the passions of the panel 

in order to sentence Appellant on emotion, rather than solely on the evidence 

before it.” 

2. Law

We review claims of prosecutorial misconduct and improper argument de 

novo; when no objection is made at trial, the error is forfeited, and we review 

for plain error. United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation 

omitted). Under the plain error standard, such error occurs “when (1) there is 

error, (2) the error is plain or obvious, and (3) the error results in material 

prejudice to a substantial right of the accused.” United States v. Fletcher, 62 

M.J. 175, 179 (C.A.A.F. 2005) (citation omitted).

“Trial prosecutorial misconduct is behavior by the prosecuting attorney 

that ‘oversteps the bounds of that propriety and fairness which should 

characterize the conduct of such an officer in the prosecution of a criminal 

offense.’” Id. at 178 (quoting Berger v. United States, 295 U.S. 78, 84 (1935)). 

“Prosecutorial misconduct can be generally defined as action or inaction by a 

prosecutor in violation of some legal norm or standard, e.g., a constitutional 

provision, a statute, a Manual rule, or an applicable professional ethics canon.” 

United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citing Berger, 295 U.S. at 

88) (additional citation omitted).

In presenting argument, trial counsel may “argue the evidence of record, 

as well as all reasonable inferences fairly derived from such evidence.” United 

States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citation omitted). Trial counsel 

may strike hard but fair blows, but may not “inject his personal opinion into 

the panel’s deliberations, inflame the members’ passions or prejudices, or ask 

them to convict the accused on the basis of criminal predisposition.” Sewell, 76 

M.J. at 18 (citations omitted). In determining whether trial counsel’s 

comments were fair, we examine them in the context in which they were made. 

United States v. Gilley, 56 M.J. 113, 121 (C.A.A.F. 2001). We do not “surgically 

carve out a portion of the argument with no regard to its context.” Baer, 53 

M.J. at 238 (internal quotation marks omitted).

Among the principal purposes of sentencing are the protection of society 

from the wrongdoer and deterrence of the wrongdoer and those who know of 

his crime and his sentence from committing the same or similar offenses. 

United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989); see also R.C.M. 1001(g) 

(“trial counsel may . . . refer to generally accepted sentencing philosophies, 
United States v. Albarda, No. ACM 39734

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including rehabilitation of the accused, general deterrence, specific deterrence 

of the misconduct by the accused, and social rehabilitation”). Both the 

Government and the defense “may argue for an appropriate sentence.” R.C.M. 

1001(g).

“Where improper argument occurs during the sentencing portion of the 

trial, we determine whether or not we can be confident that [an appellant] was 

sentenced on the basis of the evidence alone.” United States v. Pabelona, 76 

M.J. 9, 12 (C.A.A.F. 2017) (quoting United States v. Frey, 73 M.J. 245, 248 

(C.A.A.F. 2014) (alteration in original) (internal quotations omitted) (citations 

omitted)). In assessing prejudice from improper argument, we analyze: (1) 

the severity of the misconduct; (2) the measures, if any, adopted to cure the 

misconduct; and (3) the weight of the evidence supporting the conviction. See 

United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (citation omitted); 

Fletcher, 62 M.J. at 184. The United States Court of Appeals for the Armed 

Forces (CAAF) has identified five indicators of severity: “(1) the raw numbers—

the instances of misconduct as compared to the overall length of the argument; 

(2) whether the misconduct was confined to the trial counsel’s rebuttal or 

spread throughout the findings argument or the case as a whole; (3) the length 

of the trial; (4) the length of the panel’s deliberations; and (5) whether the trial 

counsel abided by any rulings from the military judge.” Fletcher, 62 M.J. at 184 

(citation omitted). In Halpin, the CAAF extended the Fletcher test to improper 

sentencing argument. 71 M.J. at 480. In assessing prejudice, the lack of a 

defense objection is “‘some measure of the minimal impact’ of a prosecutor’s 

improper comment.” Gilley, 56 M.J. at 123 (quoting United States v. Carpenter, 

51 M.J. 393, 397 (C.A.A.F. 1999)).

3. Analysis

a. Likelihood to Reoffend

We first address Appellant’s contention that trial counsel improperly 

argued that Appellant would reoffend. Since trial defense counsel did not object 

during the trial counsel’s sentencing argument we review the argument for 

plain error. Trial counsel’s argument that five years of confinement was 

appropriate “[b]ecause what if this happens again” and “what if those anger 

issues are not really those old anger issues and rear their ugly head late at 

night” are not impermissible factual arguments that Appellant was likely to 

reoffend. They are appropriate argument for specific deterrence. In essence

trial counsel was arguing that confinement would ensure that Appellant would 

not reoffend—which is the very meaning of specific deterrence. See United 

States v. Halstead, No. ACM S32546, 2020 CCA LEXIS 27, at *19 (A.F. Ct.

Crim. App. 29 Jan. 2020) (unpub. op.) (argument that confinement would “be 

good” to prevent an appellant “from committing future drug offenses” was 

proper as it demonstrated specific deterrence); United States v. Grassey, No. 
United States v. Albarda, No. ACM 39734

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ACM 38973, 2017 CCA LEXIS 414, at *8 (A.F. Ct. Crim. App. 22 Jun. 2017) 

(unpub. op.) (argument that an appellant would not be able to commit crimes

in prison was “fair argument regarding the nature of confinement as specific 

deterrence”). 

Additionally, trial counsel’s argument “[d]on’t come back with a sentence 

that’s less than five years for [NA]’s sake to rehabilitate [Appellant] to protect 

this from happening again” is similarly not improper argument. The argument 

was proper reference to four different sentencing philosophies; protection of 

society, rehabilitation, and general and specific deterrence. The statement 

“even if you think that the risk of [Appellant] doing this again is zero” is also 

not improper, as it argues that the sentence of confinement for five years would 

be appropriate even if the panel determined that specific deterrence was not a 

principal concern in Appellant’s case.

Furthermore, trial counsel’s argument was a fair comment upon issues 

raised by Appellant in his sentencing case. Appellant presented evidence of his 

rehabilitation, and trial defense counsel’s argument focused on Appellant’s 

“rehabilitation,” “redemption,” and “reuniting” with his family and generally 

portrayed Appellant as someone who would not reoffend. Accordingly, trial 

counsel was permitted to rebut that argument in addition to arguing for 

specific deterrence. Trial counsel is not “prohibited from offering comment that 

provides a fair response to claims made by the defense.” United States v. 

Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (citation omitted). In considering the 

appropriateness of a prosecutor’s argument, we “must also take into account 

defense counsel’s opening salvo.” United States v. Young, 470 U.S. 1, 12 (1985). 

Although defense counsel in this case had not yet argued that confinement was

not necessary, it was a predictable approach based upon the evidence 

Appellant admitted and Appellant’s unsworn statement. Here trial counsel 

correctly anticipated that defense counsel would argue that no confinement 

was necessary because Appellant had already been rehabilitated—trial 

counsel is certainly permitted to preemptively address that argument, when 

no rebuttal argument was allowed. Additionally, Appellant placed his own 

anger challenges at issue and offered mitigating evidence during sentencing 

that he had received treatment for them. Again, trial counsel is permitted to 

comment on defense sentencing evidence. We see no evidence that trial counsel 

argued facts not in evidence, or that trial counsel improperly suggested to 

members that Appellant would reoffend.

Appellant has failed to identify any portion of the argument in which trial 

counsel either impermissibly argued that: (1) Appellant would reoffend; or (2) 

there was evidence that Appellant would commit the offense in the future. 

Rather, Appellant has identified only appropriate argument tied to the 

principles of deterrence, rehabilitation, and protection of society. Appellant has 
United States v. Albarda, No. ACM 39734

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failed to identify an error committed by the trial counsel as to recidivism, and 

certainly has not met the high burden of demonstrating that such an error was 

plain or obvious.

b. Inflame the Passions of the Panel

We next consider Appellant’s claim that that trial counsel improperly 

attempted to inflame the passions of the panel when he argued “[a]nd you can’t 

break your child’s bones and then come in here and use your family as a shield 

to not get the punishment that you deserve.” Again, trial defense counsel did 

not object to this statement so we review for plain error. We note at the outset 

that the record is replete with evidence introduced by the Defense in which 

witnesses and Appellant himself stated that confinement would be more 

punishment for the family than for him. Appellant in this case chose to put on 

a sentencing case in which he repeatedly referenced that his family would 

suffer more than him. Trial defense counsel used this theme in her argument, 

stating “your punishment will affect [KA], it will affect [AA] and it will affect 

[NA].” Trial defense counsel chose a strategy of currying empathy with the 

panel members by mentioning the impact of the sentence upon Appellant’s 

innocent wife and children. Trial counsel’s argument was fair comment in 

response to the defense sentencing strategy and trial counsel did not commit 

prosecutorial misconduct by highlighting that strategy directly to the panel. 

Likewise, we find no error in this statement.

c. Mitigation Evidence & Appellant’s Sentence Recommendation

Finally, we consider Appellant’s contention the trial counsel instructed the 

panel not to consider evidence in mitigation offered by Appellant and 

improperly argued against Appellant’s right to make a sentence 

recommendation. Since trial defense counsel did not object during trial 

counsel’s argument we again review for plain error. 

In support of both arguments, Appellant highlighted one passage from trial 

counsel’s argument where trial counsel stated,

But don’t forget that when defense counsel comes up here, that 

they are [Appellant’s] mouthpiece and they are going to speak to 

you on behalf of him. And you need to ask yourselves, in what 

world is it appropriate that you can commit crimes and then 

come in and tell you what sentence you deserve? To do the cost 

benefit of your own crimes? 

As to Appellant’s first argument, we do not find anything in that statement 

where trial counsel explicitly instructed the panel that they could not consider 

evidence in mitigation. From the full context of the argument, it is evident that 

trial counsel never argued that the panel could not consider mitigating 

evidence. In fact, trial counsel specifically referred the panel to mitigating 
United States v. Albarda, No. ACM 39734

12

evidence, telling the panel members to consider not only Appellant’s actions 

“but also his service record, the testimony that we heard, the character letters 

[Appellant] put in front of you.” Additionally, the only testimony elicited during 

the pre-sentencing portion of the hearing was on Appellant’s behalf.

 That said, we find that trial counsel’s statement overstepped the bounds 

of propriety and fairness of a prosecutor for other reasons. First, trial counsel’s 

disparaging reference to defense counsel as the Appellant’s “mouthpiece” was 

pejorative and offered only to denigrate the legitimacy of any recommendation 

made by defense counsel. While it is appropriate to comment on Appellant’s 

sentence recommendation, it is “improper for trial counsel to attempt to win 

favor with the members by maligning defense counsel.” Fletcher, 62 M.J. at 

181. Moreover, we also agree with Appellant’s second argument, and find that 

the above statement from trial counsel improperly addresses Appellant’s clear 

right to argue for an appropriate sentence. Taken together, trial counsel 

essentially told the members—incorrectly—that Appellant had no right to 

recommend a specific sentence, that trial defense counsel was merely parroting 

Appellant’s recommendation, and that any recommendation from trial defense 

counsel should be ignored. Trial counsel’s statement was not just factually and 

legally incorrect, it broadcast to the members trial counsel’s view that 

Appellant’s counsel was merely there to repeat Appellant’s requests—requests 

which trial counsel implored the members to ignore as improper. This 

statement erroneously implicated Appellant’s right to fair sentencing 

proceeding and his right to counsel, errors we conclude are plain and obvious.

Finding error, we now review for prejudice. See Fletcher, 62 M.J. at 184. 

We note that the above statement consisted of one, isolated statement, in a 

sentencing argument that spanned seven pages of transcript. While the 

military judge did not issue an immediate curative instruction, he did instruct 

the members both before and after trial counsel’s argument that Appellant was 

permitted to make a specific sentence recommendation, and that any 

recommendations made, by either counsel or Appellant, were only suggestions, 

and it was solely in the members’ discretion to determine an appropriate 

punishment. In the absence of evidence to the contrary, military members are 

presumed to follow the military judge’s instructions. United States v. Ricketts, 

23 U.S.C.M.A. 487, 490 (C.M.A. 1975). Finally, the weight of the evidence 

supporting the conviction was strong and amply supports the sentence imposed 

by the panel, which was half of the maximum period of confinement available.

Therefore, we find this statement did not substantially influence Appellant’s 

sentence, nor otherwise materially prejudice a substantial right of Appellant. 

We have also reviewed the rest of Appellant’s arguments for prejudice and are 

confident that the members acted “on the basis of the evidence alone.” Fletcher,

62 M.J. at 184.
United States v. Albarda, No. ACM 39734

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 “As Appellant was not prejudiced by the sentencing argument, he cannot 

have been prejudiced by the military judge’s failure to interrupt the arguments 

. . . or the failure of his defense counsel to object to the argument.” Halpin, 71 

M.J. at 480 (citing to Strickland v. Washington, 466 U.S. 668, 687 (1984))

(requiring that a defendant claiming ineffective assistance of counsel show he 

was prejudiced by counsel’s deficient performance).

B. Sentence Appropriateness 

Appellant contends his sentence is inappropriately severe in light of his 

record of service and asks this court to engage in a comparative sentence 

review.6 He supports his argument by citing other military justice cases 

involving child abuse. We disagree and find Appellant’s sentence appropriate. 

This court “may affirm only . . . the sentence or such part or amount of the 

sentence, as it finds correct in law and fact and determines, on the basis of the 

entire record, should be approved.” Article 66(c) UCMJ, 10 U.S.C. § 866(c). We 

review sentence appropriateness de novo, employing “a sweeping 

Congressional mandate to ensure ‘a fair and just punishment for every 

accused.’” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (citations 

omitted). 

In determining whether a sentence is appropriate, we consider the 

“particular appellant, the nature and seriousness of the offense, the appellant’s 

record of service, and all matters contained in the record of trial.” United States 

v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citations omitted). 

We have a great deal of discretion in determining whether a particular 

sentence is appropriate, but we are not authorized to engage in exercises of 

clemency. United States v. Healy, 26 M.J. 394, 395–96 (C.M.A. 1988).

A sentence comparison is required if Appellant can demonstrate that (1)

the cited cases are “closely related” to his case, and (2) the sentences are “highly 

disparate.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). Cases are 

“closely related” when they include “coactors involved in a common crime, 

servicemembers involved in a common or parallel scheme, or some other direct 

nexus between the servicemembers whose sentences are sought to be 

compared.” Id.

In the present case, Appellant has failed to demonstrate that the cases cited 

in his Grostefon brief are “closely related” to his case. Appellant has not 

presented any evidence that the other cases he cited involve co-actors, common 

schemes, or any direct nexus to his case. Additionally, Appellant has not 

 6 To the extent that Appellant asks this court to consider matters outside the entire 

record, those matters may not be considered by this court in assessing sentence 

appropriateness. See United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020).
United States v. Albarda, No. ACM 39734

14

provided any information as to the unique facts and circumstances of these 

cases or any mitigating or extenuating factors which might have been present 

in those cases. “The appropriateness of a sentence generally should be 

determined without reference or comparison to sentences in other cases.” 

United States v. Leblanc, 74 M.J. 650, 659 (A.F. Ct. Crim. App. 2015) (en banc) 

(citing United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). While we 

realize that we may consider any or all of the cases cited by Appellant, even if 

they are not closely related to Appellant’s, we decline to do so here and see no 

reason to deviate from the general rule set out in LeBlanc.

After conducting a review of the entire record, we find that the adjudged 

and approved sentence is appropriate. In reaching this conclusion, we 

considered Appellant’s unsworn statement, his enlisted performance reports, 

the defense exhibits submitted at trial, and all the matters submitted by 

Appellant during clemency. We also considered the facts of the offenses to 

which Appellant was found guilty and all other properly admitted matters. In 

this case Appellant physically harmed his infant daughter on multiple 

occasions, causing severe injury to her on at least two occasions. After the 

military judge merged Specifications 2 and 3 of Charge I, assault consummated 

by a battery of NA, for the purposes of sentencing, the maximum term of 

confinement in Appellant’s case was reduced from 17 years to 12 years and 

included the possibility of a dishonorable discharge. In this case, his sentence 

to confinement was exactly half of the maximum allowable term of 

confinement. In light of the significance of his criminal conduct, we find 

Appellant’s approved sentence of a dishonorable discharge, confinement for six 

years, and reduction to the grade of E-1 is appropriate for the crimes he 

committed.

C. Timeliness of Appellate Review

Additionally, we consider whether Appellant is entitled to relief for a 

facially unreasonable appellate delay. See Moreno, 63 M.J. at 135 (citations 

omitted); United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). We 

decline to grant such relief. 

1. Law

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

right to speedy appellate review. Moreno, 63 M.J. at 135 (citations omitted). A 

presumption of unreasonable delay arises when appellate review is not 

completed and a decision rendered within 18 months of a case being docketed. 

Id. at 142. A presumptively unreasonable delay triggers an analysis of the four 

factors laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of 

the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right 

to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 
United States v. Albarda, No. ACM 39734

15

(citations omitted). A presumptively unreasonable delay satisfies the first 

factor, but the government “can rebut the presumption by showing the delay 

was not unreasonable.” Id. at 142. Assessing the fourth factor of prejudice, we 

consider the interests of “prevention of oppressive incarceration;” 

“minimization of anxiety and concern of those convicted;” and “limitation of the 

possibility that . . . grounds for appeal, and . . . defenses . . . might be impaired.” 

Id. at 138–39 (citations omitted). 

2. Analysis 

Appellant’s case was docketed with the court on 17 July 2019. The delay in 

rendering this decision until just over 19 months after the case was docketed

is presumptively unreasonable. The reasons for the delay include the time 

required for Appellant to file his brief on 6 May 2020, and the Government to 

file its answer on 2 July 2020.7 Appellant did not assert his right to timely 

appellate review, and has made no specific claim of prejudice. We find none.

Finding no Barker prejudice, we also find the delay is not so egregious that 

it “adversely affects the public’s perception of the fairness and integrity of the 

military justice system.” See United States v. Toohey, 63 M.J. 353, 362 

(C.A.A.F. 2006). As a result, there is no due process violation. See id.

Regarding any relief under Tardif, in this case we determine that no such 

relief is warranted in the absence of a due process violation. See Tardif, 57 M.J. 

at 223–24; United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), 

aff’d, 75 M.J. 264 (C.A.A.F. 2016). In Tardif, the CAAF recognized that “a 

Court of Criminal Appeals has authority under Article 66(c)[, UCMJ, 10 U.S.C. 

§ 866(c),] to grant relief for excessive post-trial delay without a showing of 

‘actual prejudice’ within the meaning of Article 59(a)[, UCMJ, 10 U.S.C. § 

859(a)].” 57 M.J. at 224 (citation omitted). Furthermore, we as a service Court 

of Criminal Appeals are required by Article 66(c), UCMJ, to determine which 

findings of guilty and the sentence or part thereof “should be approved.” 10 

U.S.C. § 866(c); see Tardif, 57 M.J. at 224. Considering all the facts and 

circumstances of Appellant’s case, we decline to exercise our Article 66(c), 

UCMJ, authority to grant relief for the delay in completing appellate review.

 7 Appellant also filed a motion for leave to file a supplemental assignment of error on 

6 August 2020, based on the United States Supreme Court decision in Ramos v. 

Louisiana, 140 S. Ct. 1390 (2020), that was decided before Appellant’s brief was 

submitted. Due to Appellant’s failure to show good cause to warrant acceptance by the 

court of this late submission, Appellant’s motion was subsequently denied on 1 

September 2020.
United States v. Albarda, No. ACM 39734

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D. Erroneous Action

During our review of this case under Article 66(c), UCMJ, we identified 

that both the action and the general court-martial order failed to report the 

deferral of the reduction in grade. This error was not raised by counsel and no 

prejudice has been alleged. We find a corrected action and CMO are required.

1. Law

Proper completion of post-trial processing is a question of law which this 

court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. 

Crim. App. 2004) (citation omitted). If an action is found to be “illegal, 

erroneous, incomplete, or ambiguous” during the review of the record of trial 

under Article 66, UCMJ, 10 U.S.C. § 866, the convening authority may modify 

the action “[w]hen so directed by a higher reviewing authority.” R.C.M.

1107(f)(2); see also R.C.M. 1107(g) (stating the convening authority may be 

instructed by an authority acting under Article 66, UCMJ, to withdraw the 

original action and substitute a corrected action when it is “incomplete, 

ambiguous, or contains clerical error”).

2. Analysis

On 25 March 2019, at Appellant’s request, the convening authority 

deferred Appellant’s adjudged reduction in grade as well as the adjudged and 

mandatory forfeitures of pay pursuant to Article 58b, UCMJ, 10 U.S.C. § 858b,

until he took action on Appellant’s sentence. See Article 57a, UCMJ, 10 U.S.C. 

§ 857a. However, as stated above, both the action and the court-martial order 

erroneously failed to report the deferral of the reduction in grade. See Air Force 

Instruction 51-201, Administration of Military Justice, ¶ 11.29.1.3 (18 Jan. 

2019) (“The terms of approved deferrals . . . are reported in the action the 

convening authority ultimately takes on the case.”); see also United States v. 

Perea, No. ACM 32408, 2017 CCA LEXIS 353 (A.F. Ct. Crim. App. 24 May 

2017) (unpub. op.); United States v. Griego, No. ACM 38600, 2015 CCA LEXIS 

502 (A.F. Ct. Crim. App. 5 Nov. 2015) (unpub. op.) (noting that erroneous 

failure to report the deferral of reduction in grade in the convening authority 

action typically requires substitution of a corrected action and promulgation of 

a new CMO). Accordingly, the action is incomplete, and a corrected action and 

CMO are required. 

III. CONCLUSION

The approved findings and sentence are correct in law and fact, and no 

error materially prejudicial to the substantial rights of Appellant occurred. 

Articles 59(a) and 66(c), UCMJ, 10 U.S.C. § 859(a), 866(c). Accordingly, the 

findings and sentence are AFFIRMED. The record of trial is returned to The 

Judge Advocate General for remand to the convening authority to withdraw 
United States v. Albarda, No. ACM 39734

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the incomplete action, substitute a corrected action, and issue a corrected 

court-martial order. Thereafter, the record of trial will be returned to this court 

for completion of appellate review under Article 66, UCMJ.8,9

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 8 The action also contained another error in that it listed the bank account information 

for KA, which should not have been included. We direct this information be removed 

in the corrected action and court-martial order.

9 We also note that the court-martial order, dated 3 July 2019, also contained an error 

in the sentence section; it states that the sentence included reduction to “E-4,” which 

is an error and should state “E-1.” We direct this information be corrected in the 

corrected action and court-martial order.