United States Navy-Marine Corps

Court of Criminal Appeals

_________________________

UNITED STATES

Appellee

v.

Christopher E. JENNINGS

Staff Sergeant (E-6), U.S. Marine Corps

Appellant

_________________________

No. 201700241

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary.

Argued: 25 October 20181—Decided: 04 February 2019

_________________________

Military Judges: 

Lieutenant Colonel Eugene H. Robinson, USMC (arraignment); 

Colonel Douglas W. Gardner, USMC (trial).

Approved Sentence: Reduction to E-1, total forfeiture of pay and 

allowances, confinement for three years, and a dishonorable discharge. 

Sentence adjudged 13 April 2017 by a general court-martial convened 

at Camp Foster, Okinawa, Japan, consisting of officer members.

For Appellant: 

Lieutenant Daniel E. Rosinski, USN (argued); 

Commander Donald R. Ostrom, JAGC, USN (on brief); 

 

1 We heard oral argument in this case at The Catholic University of America, Columbus School of Law, Washington, D.C.
United States v. Jennings, No. 201700241

2

For Appellee:

Lieutenant Clayton S. McCarl, JAGC, USN (argued); 

Captain Brian L. Farrell, USMC (on brief).

_________________________

This opinion does not serve as binding precedent under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

Before HUTCHISON, TANG, and LAWRENCE, 

Appellate Military Judges.

HUTCHISON, Senior Judge:

A panel of officers sitting as a general court-martial convicted the appellant, contrary to his pleas, of attempted sexual assault of a child, four specifications of attempted sexual abuse of a child, attempted receipt of child pornography, and solicitation of the production of child pornography, in violation 

of Articles 80 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§§ 880 and 934. 

The appellant raises five assignments of error (AOEs):2 (1) the findings 

are factually insufficient because the government failed to prove beyond a 

reasonable doubt that the appellant was not entrapped; (2) the appellant was 

denied his right to a speedy trial because he was not arraigned within 120 

days of being placed on liberty risk; (3) the trial defense counsel was ineffective for seeking confinement credit rather than asserting speedy trial rights;

(4) the military judge erred in denying a challenge for cause against the appellant’s executive officer; and (5) the military judge misled the members in 

responding to their questions related to sentencing. 

Having examined the record of trial, the pleadings of the parties, and the 

oral argument, we conclude that the findings and sentence are correct in law 

and fact and that no error materially prejudicial to the substantial rights of 

the appellant was committed. Arts. 59(a) and 66(c), UCMJ. 

 

2 We have renumbered the AOEs.
United States v. Jennings, No. 201700241

3

I. BACKGROUND

In February 2015, Naval Criminal Investigative Service (NCIS) agents 

apprehended the appellant after he drove to a house on Kadena Air Base in 

Okinawa, Japan,3 to engage in sexual acts with a 15-year-old girl—

Savannah—with whom he had been chatting online. In fact, Savannah was 

an undercover NCIS agent looking for military personnel using the internet 

to solicit sex from minors.

The appellant’s communications with Savannah began the previous 

summer when he responded via email to an advertisement on an online personal forum. The advertisement posted by the undercover agent (UC) was titled “heyy ;) – w4m” and listed Savannah’s age as 18.4 The UC responded to 

the appellant’s email by contacting him directly using a wireless messaging 

application on her NCIS-provided smart tablet. Within their first exchange 

Savannah revealed that she was only 15-years-old:

[Savannah]: im a little younger than my profile says [by the 

way]

[Appellant]: How old are you? And what u looking for? ;) Cause 

young is ok. Can I see a pic? 

Just depends how young.

[Savannah]: im 15

[Appellant]: Ok. What are you looking for with me? Picture of 

you?5

After the UC sent the appellant a photo of her face, he further inquired 

what she was looking for and pointed out that the “area” of the online forum 

Craigslist she posted in was “rather promiscuous” and “sexual in nature.”6

The appellant pressed:

 

3 The appellant’s final communications and apprehension took place in Okinawa, 

Japan when he was on temporary duty there from his permanent assignment aboard 

Marine Corps Air Station (MCAS) Iwakuni, located at the southern end of Honshu, 

the main island of Japan.

4 Prosecution Exhibit (PE) 1 at 1; Record at 375-76. The UC explained that “w4m” 

means “woman for man.” Id. at 374.

5 PE 1 at 3.

6 Id. at 4.
United States v. Jennings, No. 201700241

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[Appellant]: Are you wanting to be friends with me, or more 

than just friends? Cause how you answer determines everything. Don’t want the wrong impression given.

[Savannah]: im down for watever

[Appellant]: Really? Anything? Send me a full body pic?7

The appellant and Savannah continued sending messages for a few days. 

While the appellant expressed concern over their 17-year age difference and 

getting in trouble for “talking” or “hanging out” with Savannah because she 

was a “minor,” he did send her a full-length photo of himself in a Marine 

Corps dress uniform and continued to ask her for a full-length picture of her 

“body.”8 After the appellant sent his photo, there was no further communication between the UC and the appellant for nearly three months. The UC reinitiated contact with the appellant in the fall of 2014. Savannah once again 

reminded the appellant that she was only 15, and after approximately a week 

of messaging back and forth they once again ceased communicating.9

In February of 2015, the UC again contacted the appellant, asking him 

via message, “who is this.”10 After resuming communications, Savannah reminded the appellant that she was still only 15-years-old. The appellant 

asked if anyone would find out about their conversation, and after Savannah 

told him no one would, the appellant’s messages turned overtly sexual. Specifically, he asked Savannah if she had ever been “physical”11 with a man before and whether his van would be an “ok” place for the two of them to have 

sex.12 The appellant told Savannah that he would be gentle during their first 

time having sex, promised to teach her how to perform oral sex when they 

met in person, coached her on how to masturbate, sent her a photograph of 

his genitals, asked her to take photos of her genitals and send them to him, 

described to her the physical acts he was fantasizing about performing on 

her, and ultimately arranged a specific time to meet for sex.

 

7 Id. at 5.

8 Id. at 6-7.

9 The content of these messages included the appellant asking Savannah for more 

pictures and discussions regarding how old each of them looked in their pictures. The 

appellant also asked Savannah how tall she was. See Id. at 7-11.

10 Id. at 11.

11 Id. at 12.

12 Id. at 13.
United States v. Jennings, No. 201700241

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Following his apprehension, the appellant submitted to an interview with 

NCIS agents. The appellant admitted that from the beginning of his communications with Savannah he was “fishing to see how far” she was “willing to 

go.”13

On the day he was apprehended, the appellant’s command placed him on 

Class “C” liberty risk. In this status, the appellant was not permitted to leave 

MCAS Iwakuni, and he was not allowed to purchase or consume alcohol.14 He 

continued to perform his normal duties and to work normal hours. The appellant remained in this liberty risk status for 482 days before he was arraigned.

Additional facts necessary to resolve the assigned errors are included below.

II. DISCUSSION

A. Entrapment

The appellant claims that he was entrapped and that, therefore, his convictions are factually insufficient.

We review questions of factual sufficiency de novo. Art. 66(c), UCMJ; 

United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for 

factual sufficiency is whether “after weighing the evidence in the record of 

trial and making allowances for not having personally observed the witnesses, [this court is] convinced of appellant’s guilt beyond a reasonable doubt.”

United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (emphasis, citation, and internal quotation marks omitted). In conducting this unique appellate function, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] 

own independent determination as to whether the evidence constitutes proof 

of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 

399. 

Entrapment is an affirmative defense in which “the criminal design or 

suggestion to commit the offense originated in the Government and the accused had no predisposition to commit the offense.” RULE FOR COURTSMARTIAL (R.C.M.) 916(g), MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2016 ed.). For the entrapment defense to prevail, the defense has the “initial 

 

13 PE 4 at 13:45-14:06.

14 See Appellate Exhibit (AE) XXXIX at 1-2.
United States v. Jennings, No. 201700241

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burden of . . . show[ing] that a government agent originated the suggestion to 

commit the crime.” United States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992). 

Once the defense has met the initial burden, the burden shifts to the government to prove either: (1) that the “criminal design did not originate with the 

[g]overnment”; or (2) “that the accused had a predisposition to commit the 

offense . . . prior to first being approached by [g]overnment agents.” Id. (citations and internal quotation marks omitted). “The bottom line is that entrapment has two elements: government inducement and an accused with no 

predisposition to commit the offense.” United States v. Howell, 36 M.J. 354, 

358 (C.A.A.F. 1993) (citations omitted).

1. Inducement

The first element of entrapment is an inducement by the government to 

commit the crime. Howell, 36 M.J. at 359-60. “Inducement is government 

conduct that creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense” and can take many forms, 

including fraudulent representations, threats, persuasion, coercive tactics, or 

even pleas “based on need, sympathy, or friendship.” United States v. Hall, 56 

M.J. 432, 436 (C.A.A.F. 2002) (citations and internal quotation marks omitted). However, there is no inducement where government agents simply provide “the opportunity or facilities to commit the crime.” Id. at 437 (citations 

and internal quotation marks omitted).

The appellant argues that the UC induced him to engage in the offenses. 

First, he contends that because the UC placed her advertisement15 in an 

overtly sexual section of Craigslist, she first introduced the subject of sex. We 

disagree. While the “Casual Encounters” section of Craigslist might be overtly sexual, nothing in the UC’s advertisement or, more importantly, in her 

subsequent messages to the appellant ever introduced the subject of sex. Rather, Savannah immediately informed the appellant that she was younger 

than her profile indicated and the appellant responded that “young [was] 

ok.”16 After finding out that Savannah was only 15, the appellant persisted, 

asking her what she was looking for, and once he confirmed that she was 

“down for whatever” he requested that she send him a full-body picture.17 An 

 

15 NCIS did not retain the original advertisement, but both the UC and her supervisory NCIS agent testified to its contents.

16 PE 1 at 3.

17 Id. at 5.
United States v. Jennings, No. 201700241

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otherwise law-abiding citizen would not request a full body picture from a 15-

year-old girl. 

Next, the appellant argues that the UC repeatedly contacted him after 

their conversation lapsed. But the mere act of reinitiating contact after periods of inactivity does not constitute inducement. Both times the UC reinitiated contact with the appellant, her messages were innocuous; they were not 

sexual in nature and did not invite the appellant to commit a crime. Instead, 

her messages simply provided the appellant with “the opportunity . . . to 

commit the crime.” Hall, 56 M.J. at 436-37. The Court of Appeals for the 

Armed Forces (CAAF) has explained that even a “government agent’s repeated requests for assistance in acquiring drugs do not in and of themselves constitute the required inducement.” Howell, 36 M.J. at 360 (citing United States 

v. Mendoza-Salgado, 964 F.2d 993, 1004 (10th Cir. 1992); United States v. 

Salmon, 948 F.2d 776, 779 (D.C. Cir. 1991); United States v. Gunter, 741 F.2d

151, 153 (7th Cir. 1984)). The UC’s activity here—simply reinitiating contact 

with the appellant—falls far short of the government action condoned by the 

CAAF in Howell.

Finally, the appellant claims that the UC badgered him into driving to 

her house even after he had indicated he did not want to do so on that occasion. Specifically, the appellant argues that after he had set up a time to meet 

the UC, he changed his mind and “told Savannah that he was not going to 

visit,” but she nevertheless “induced him to violate the law with a “‘plea[]

based on need, sympathy or friendship:’”18

[Appellant]: I just laid down. Can we do this another day? Been 

writing a paper all night[.]

[Savannah]: I can’t[.] idk when I can[.] Ur not coming?

[Appellant]: I ca[n’]t drive. I can barely[ ]keep my eyes open[.]

. . . .

[Savannah]: I just showered for nothing[.] I guess I’ll [talk to 

you later] bye[.]

[Appellant]: Sorry

[Savannah]: I said I didn’t won’t [sic] no drama!

 

18 Appellant’s Reply Brief of 9 July 18 at 21 (alteration in original) (citations 

omitted)(quoting United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000). 
United States v. Jennings, No. 201700241

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[Appellant]: Ok. I[‘]ll shower and grab some caffeine. Is that 

what you want?

[Savannah]: Duh

[Appellant]: K[.] Where am I going?19

The text exchange shows only that the appellant sought to postpone his 

previously scheduled early morning rendezvous with Savannah because he 

had been up all night and was too tired. It was the appellant, not Savannah, 

who first proposed they would meet and have sex. That the UC, in response

to the appellant’s last-minute cancellation, expressed some disappointment 

does not amount to inducement. Rather, the fact that the appellant was motivated to act merely because Savannah seemed disappointed reveals his predisposition to commit the crimes for which he was convicted. Based on these 

facts, we conclude the appellant was not induced and that government agents 

merely provided him an opportunity to commit the offenses. 

2. Predisposition

“Evidence that ‘a person accepts a criminal offer without being offered extraordinary inducements . . . demonstrates his predisposition to commit the 

type of crime involved.’” United States v. Bell, 38 M.J. 358, 360 (C.M.A. 1993) 

(quoting United States v. Evans, 924 F.2d 714, 718 (7th Cir. 1991) (additional 

citation omitted)). When this willingness to commit a crime is exhibited, the 

actions of government agents along with the person’s predisposition prior to 

contact should be considered to ensure this predisposition was not the result 

of the government influence. See United States v. Jacobson, 503 U.S. 540, 553 

(1992). 

The appellant contends that there is no evidence of any predisposition; 

the appellant had no criminal background, and the government failed to show 

that he had ever previously sought out underage individuals for sex or that 

he ever searched for or looked at child pornography. Arguing he lacked the 

“inclination, willingness, or readiness to engage in the illegal activity for 

which he is charged,” the appellant avers his conviction should be overturned.20

 

19 PE 1 at 35-36.

20 Appellant’s Brief of 1 Feb. 2018 at 29-31 (quoting United States v. Kemp, 42 

M.J. 839, 845-46 (N-M. Ct. Crim. App. 1995).
United States v. Jennings, No. 201700241

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Again, the appellant’s accelerating pursuit even after being told he was 

conversing with a 15-year-old girl demonstrate his predisposition. When Savannah told him that she was “a little younger than my profile says” he replied, “young is ok [sic]. . . . Just depends how young.”21 When Savannah answered she was 15-years-old, the appellant asked her, “What are you looking 

for with me?” and solicited a picture of her before she could respond.22 Even

after the appellant knew Savannah was only 15-years-old, and without any 

“extraordinary inducements,” the appellant continued to pursue a sexual relationship with her, expressing concern that he could get in trouble if caught.

Yet, the appellant initiated the sexual conversation with Savannah, described 

the sexual acts he would perform on her, requested pictures from her, sent 

her pictures of his penis, and arranged to meet with her to have sex. After his 

apprehension, the appellant admitted that his intent in going to meet Savannah was to have sex. His interactions with Savannah displayed both a readiness and willingness to commit the offenses. This is not the behavior of an 

otherwise law-abiding citizen or a person undisposed to committing sexual 

acts with minors.

B. Speedy Trial 

The appellant contends for the first time on appeal, that the 482 days23 he 

spent on liberty risk “C” prior to his arraignment violated his right to a 

speedy trial under R.C.M. 707. Because the appellant failed to preserve this 

issue at trial with a timely motion to dismiss, we conclude that he has waived 

his right to a speedy trial. 

1. Waiver

The Rules for Courts-Martial make clear that the burden is on the appellant to raise speedy trial issues at trial and that a failure to do so may result 

in waiver. See R.C.M. 707(e), Discussion; R.C.M. 905(e); R.C.M. 907(b)(2)(A). 

Rule 907(b)(2)(A) permits the appellant to move to dismiss the charges for 

lack of speedy trial at any time until final adjournment. Rule 905(e), in turn, 

provides that “failure” to raise such motions to dismiss “before the courtmartial is adjourned . . . shall constitute waiver.” Consequently, by failing to 

 

21 Id. at 3.

22 Id.

23 The appellant incorrectly claims 513 days between his assignment to Class “C” 

Liberty Risk on 25 February 2015 and his arraignment on 21 June 2016. See Appellant’s Brief at 37, n.179.
United States v. Jennings, No. 201700241

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raise an R.C.M. 707 speedy trial issue prior to final adjournment, the appellant waived this issue.

Even when a rule refers to waiver, it may instead mean “forfeiture.” United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017). “Forfeiture is the failure 

to make the timely assertion of a right, [while] waiver is the intentional relinquishment or abandonment of a known right.” United States v. Gladue, 67 

M.J. 311, 313 (C.A.A.F. 2009) (citations and internal quotation marks omitted). We review a forfeited issue for plain error, but a “valid waiver leaves no 

error to correct on appeal.” Ahern, 76 M.J. at 197. While our previous decisions have not always been consistent when dealing with speedy trial issues 

raised for the first time on appeal,24 we believe recent decisions by our superior court support the application of waiver. 

In Ahern, the CAAF looked to the plain language of MILITARY RULE OF 

EVIDENCE (MIL. R. EVID.) 304(f)(1), MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2016 ed.), observed that the rule did “not mention plain error review”

and held, instead, that the rule “unambiguously provides that any claim arising under [the rule] is waived absent objection.” Ahern, 76 M.J. at 197. In 

reaching this conclusion, the court noted that other rules within the Manual 

for Courts-Martial explicitly provided for plain error review.25 Looking to the 

plain language in R.C.M. 905(e) and the discussion following R.C.M. 707(e), 

 

24 See United States v. Olinger, 45 M.J. 644, 649 (N-M. Ct. Crim. App. 1997) 

(holding R.C.M. 707 does not apply to a sentence-only rehearing, but announcing in 

dicta, that even if it did, the appellant’s “failure to raise it at his sentencing rehearing” waived the issued); United States v. Evans, No. 9300108, 1995 CCA LEXIS 439, 

at *7-8 (N-M. Ct. Crim. App. 7 Feb. 1995) (unpub. op.) (holding that appellant’s 

R.C.M. 707 speedy trial issue was waived because an objection to a “sham” arraignment was insufficient to preserve the issue); United States v. Bolerjack, No. 9801500, 

1999 CCA LEXIS 244, at *5 (N-M. Ct. Crim. App. 31 Aug. 1999) (unpub. op.) (rejecting application of waiver and applying plain error review following appellant’s failure 

to raise an R.C.M. 707 motion at trial); United States v. Scamahorn, No. 200201583, 

2006 CCA LEXIS 71, at *9-10 (N-M. Ct. Crim. App. 27 Mar. 2006) (unpub. op.) (reviewing de novo the appellant’s unpreserved R.C.M. 707 claim in order to resolve a 

related claim of ineffective assistance of counsel); see also United States v. McFadden, 

No. ACM 38597, 2015 CCA LEXIS 520, at *19 n.5 (A.F. Ct. Crim. App. 18 Nov. 2015)

(unpub. op.) (“In the absence of any evidence that Appellant knowingly declined to 

assert [his R.C.M. 707] claim at trial, we consider it forfeited and not waived.”).

25 See, e.g., R.C.M. 920(f) (providing for “waiver” but only “in the absence of plain 

error”); see also United States v. Payne, 73 M.J. 19, 23 & n.3 (C.A.A.F. 2014) (applying a plain error analysis to R.C.M. 920(f), which states that the failure to object constitutes waiver of the objection in the absence of plain error).
United States v. Jennings, No. 201700241

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there is also no mention of “plain error review.” Rather, R.C.M. 905(e)—like 

MIL. R. EVID. 304(f)(1)—simply states that an R.C.M. 707 speedy trial motion 

“must be raised before the court-martial is adjourned” and “failure to do so 

shall constitute waiver.”26

In United States v. Swift, 76 M.J. 210 (C.A.A.F. 2017), the CAAF held 

that the failure to move to suppress a confession before trial under R.C.M. 

905(b)(3) permanently waived the issue under R.C.M. 905(e). Id. at 217-18. 

Last term, in United States v. Hardy, 77 M.J. 438 (C.A.A.F. 2018), the CAAF 

was once again called upon to examine the use of the term “waiver” in R.C.M. 

905(e) and acknowledged that “[s]ome older cases have reviewed issues 

‘waived’ under R.C.M. 905(b) and (e) for plain error, suggesting that the 

‘waiver’ should be treated as forfeiture.” Id. at 441 (citing United States v. 

Reist, 50 M.J. 108, 109-10 (C.A.A.F. 1999)). But citing Swift and the plain 

language of the rule, the CAAF held that an appellant’s failure to raise an 

unreasonable multiplication of charges motion prior to the entry of pleas, as 

required by R.C.M. 905(b)(2), permanently waived the issue on appeal. 

The appellant’s case is similar to Swift and Hardy. R.C.M. 905(e) makes 

clear that any motion for relief under R.C.M. 707 “must be raised before the 

court-martial is adjourned” and “failure to do so shall constitute waiver.” The 

court relied on this same language in Swift and Hardy. We are also mindful 

that in Hardy the appellant entered an unconditional guilty plea and the 

CAAF noted that the “result”—that Hardy had waived vice forfeited his 

claim—was “also required by the general principle of criminal law that an 

unconditional plea of guilty waives all nonjurisdictional defects at earlier 

stages of the proceedings.” Hardy, 77 M.J. at 442 (citation and internal quotation marks omitted); see also R.C.M. 707(e); United States v. Tippit, 65 M.J. 

69, 75 (C.A.A.F. 2007) (citation and internal quotation marks omitted) (“Under R.C.M. 707(e), an unconditional plea of guilty which results in a finding 

of guilty waives any speedy trial issue as to that offense under the Rule.”).

But given the CAAF’s reliance on Swift—a case in which the appellant plead-

 

26 We recognize that the President changed R.C.M. 905(e) to explicitly state that 

failure to object is forfeiture and not waiver. See Exec. Order 13,825, 83 Fed. Reg. 

9,889, 9,984 (1 Mar. 2018); RULE FOR COURTS-MARTIAL (R.C.M.) 905(e), MANUAL FOR 

COURTS-MARTIAL, UNITED STATES (2019 ed.) (stating that failure to raise a motion 

that “must be raised before the court-martial is adjourned . . . shall constitute forfeiture, absent an affirmative waiver”). But the President’s change to R.C.M. 905(e) did 

not take effect until 1 January 2019 and was not applicable at the time of the appellant’s trial. 
United States v. Jennings, No. 201700241

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ed not guilty—and the plain language analysis of R.C.M. 905(e), we are compelled to conclude that waiver applies to this case.

We recognize, of course, that our “complete appellate review under Article 

66, UCMJ” requires that we “determine whether to leave [the appellant’s] 

waiver intact.” United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016). In 

this case, the appellant contends that any waiver conditioned upon the failure of his trial defense team to raise a speedy trial motion constitutes ineffective assistance of counsel.27 Therefore, as matter of judicial economy, and in 

order to evaluate the appellant’s ineffective assistance of counsel claim, we 

will analyze the merits of the appellant’s R.C.M. 707 speedy trial claim. 

2. Merits

R.C.M. 707(a)(2), provides, in pertinent part, that an “accused shall be 

brought to trial within 120 days after . . . [t]he imposition of restraint under 

R.C.M. 304(a)(2)–(4).” Failure to comply with the rule results in dismissal of 

the affected charges. R.C.M. 707(d). “Thus, the duty imposed on the 

[g]overnment by R.C.M. 707 is to arraign an accused within 120 days of . . .

[the imposition of restraint], or face dismissal of the charges. The duty is no 

more and no less, and is satisfied once an accused is arraigned.” United 

States v. Cooper, 58 M.J. 54, 59 (C.A.A.F. 2003) (footnote omitted). 

“Restriction in lieu of arrest” is one type of restraint that triggers the 

R.C.M. 707 120-day clock. Restriction in lieu of arrest is the “restraint of a 

person by oral or written orders directing the person to remain within specified limits; a restricted person shall, unless otherwise directed, perform full 

military duties while restricted.” R.C.M. 304(a)(2). The appellant argues that 

his placement on Liberty Risk “C” was tantamount to restriction in lieu of 

arrest and triggered the 120-day clock under R.C.M. 707.

The government counters, however, that the appellant’s liberty risk status was a “form of administrative condition on liberty” and not a form of restraint.28 “Conditions on liberty are imposed by orders directing a person to 

 

27 At arraignment, the appellant was represented by a civilian defense counsel 

and a detailed military defense counsel. After the civilian defense counsel, an Army 

Reserve officer, was recalled to active duty, the appellant requested that the civilian 

defense counsel serve as his Individual Military Counsel (IMC). That request was 

approved and both the IMC and detailed defense counsel represented the appellant. 

For ease of reading, throughout the opinion, we refer to the IMC and detailed defense 

counsel, collectively, as the trial defense team.

28 Government Brief of 1 June 2018 at 24.
United States v. Jennings, No. 201700241

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do or refrain from doing specified acts” and do not trigger the R.C.M. 707 120-

day clock. R.C.M. 304(a)(1). Likewise, nothing in R.C.M. 304 “prohibits limitations on a servicemember imposed for operational or other military purposes independent of military justice[.]” R.C.M. 304(h). To be sure, when overseas commanders impose necessary restraints on service members to protect 

foreign relations, the R.C.M. 707 clock is not triggered. See United States v. 

Bradford, 25 M.J. 181 (C.M.A. 1987); United States v. Russell, No. 

201300208, 2014 CCA LEXIS 210, at *9 (N-M. Ct. Crim. App. 31 Mar. 2014)

(unpub. op.) (assignment to liberty risk imposed to protect foreign relations 

and to avoid international incidents constituted “conditions on liberty” under 

R.C.M. 304(a)(1) and did not trigger R.C.M 707 speedy trial clock). But, 

“where the evidence supports a conclusion that the primary purpose of the 

command in imposing . . . conditions on [an appellant’s] liberty is related to 

an upcoming court-martial, R.C.M. 707 applies.” Bradford, 25 M.J. at 186-87. 

“[T]he test is “whether the primary purpose in imposing conditions on liberty 

is to restrain [the appellant] prior to trial in order to assure his presence at 

trial or to avoid interference with the trial process.” Id. at 186. In applying 

this standard, we ask “whether the same conditions would have been imposed, even if no trial by court-martial were in prospect.” Id.

In “a case involving a speedy-trial claim under R.C.M. 707, . . . ‘whether 

an accused received a speedy trial is a legal question that is reviewed de novo.’” Cooper, 58 M.J. at 58 (quoting United States v. Doty, 51 M.J. 464, 465 

(C.A.A.F. 1999)). “The military judge’s findings of fact are given substantial 

deference and will be reversed only for clear error.” Doty, 51 M.J. at 465 (citations and internal quotation marks omitted). 

Although no R.C.M. 707 motion was made at trial, the trial defense team

did seek relief for unlawful pretrial punishment under Article 13, UCMJ. As 

part of that motion, the trial defense team presented the liberty risk program 

order and the paperwork documenting the appellant’s assignment to Liberty 

Risk “C.”29 The government presented evidence regarding MCAS Iwakuni’s 

amenities and the testimony of one of the appellant’s supervisors. The military judge’s findings of fact related to the Article 13, UCMJ, motion are instructive to the issue presented here—whether the appellant’s liberty risk 

conditions were tantamount to restriction in lieu of arrest. 

 

29 The appellant was later removed from liberty risk “C” and assigned to Tier III 

liberty status, an apparent distinction in title only and we refer to liberty risk “C” 

throughout.
United States v. Jennings, No. 201700241

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The military judge found that given the nature of the charges against 

him, the appellant posed a risk within the meaning of the liberty risk order.30

In making this determination, the military judge found it significant that the 

appellant admitted in his interrogation with NCIS, that in addition to chatting online with Savannah, he had also engaged in a chat, with an eye toward 

meeting for sex, “with host nation people.”31 The military judge found that 

this evidence “indicate[d] . . . the restriction was a reasonable condition on 

[the appellant’s] liberty.”32 The military judge also found that the appellant 

had “unfettered access to the base, something not possessed by those members incarcerated;” he had “[a]ccess to restaurants, clubs, theater, bowling.”33

The appellant had the opportunity as a staff non-commissioned officer 

(SNCO) to go off-base for command functions and while restricted to base 

“was not required . . . to be in uniform,” was “not required to check in with 

the duty NCO,” and “was given the same 72 and 96 hour liberties [afforded 

to] other members.”34 The military judge rejected the trial defense counsel’s 

assertion that the appellant’s command placed him on liberty risk “C” as a 

“subterfuge” to avoid the appellant earning pretrial confinement credit. Rather, the military judge found no “ill intent” on the part of the appellant’s 

command.35

The military judge concluded that there were gaps in a few of the successive 30-day liberty risk orders issued to the appellant and that the hearings 

held to re-examine the appellant’s liberty risk status were “pro forma.”36 As a 

result, the military judge awarded the appellant 108 days of pretrial con-

 

30 “A ‘liberty risk’ is defined as a uniformed member whose Commanding Officer 

has determined that he/she poses a threat to maintaining positive foreign relations 

[sic].” AE XLII at 3.

31 Record at 626; see also PE 4. The appellant admitted that he engaged in a separate conversation with a local Japanese woman after he responded to her Craigslist 

advertisement, but terminated his correspondence when he learned that the individual was a prostitute.

32 Record at 626.

33 Id. at 627.

34 Id. at 627-28.

35 Id. at 629.

36 Id.
United States v. Jennings, No. 201700241

15

finement credit.37 Notably, however, the military judge declined to give the 

appellant any credit pursuant to United States v. Mason, 19 M.J. 274 (C.M.A. 

1985), or United States v. Allen, 17 M.J. 126 (C.M.A. 1984), because the appellant was “not restricted to his barracks room like most of those cases.”38

Finding no clear error in the military judge’s findings of fact, we adopt 

them. The military judge found, and we agree, that the primary purpose behind placing the appellant on liberty risk “C” was because he posed a risk to 

foreign relations due to the serious nature of his alleged crimes and the fact 

that he admitted to answering a Japanese woman’s online advertisement, 

with an eye toward meeting up for sex.39 Thus, the commander was aware 

that the appellant—a married SNCO—attempted to meet both a 15-year-old 

dependent living onboard Kadena Air Base and a civilian Japanese woman, 

for sex. These facts, taken together, made it reasonable for the commander to 

believe the appellant posed a risk to foreign relations and made it reasonable 

for the commander to place the appellant on liberty risk “C.” The limitations 

placed on the appellant’s liberty for an operational or military purpose besides military justice—to promote foreign relations with the host nation—are 

exactly the type of limitations contemplated under R.C.M. 304(h). 

Moreover, the appellant was not required to be in uniform when off-duty, 

and was granted the same liberty, albeit restricted to base, as any other Marine. Indeed, the restraints placed upon the appellant—to remain on base 

and to refrain from drinking alcohol—were moral rather physical. We find 

that these moral restraints were reasonable conditions on the appellant’s liberty and would have been imposed and continued even if the appellant was 

not facing court-martial charges. Consequently, we conclude that the appellant was not in a restriction in lieu of arrest status within the meaning of 

R.C.M. 304(a)(2). Therefore, the R.C.M. 707 clock did not start until charges 

were preferred. See R.C.M. 707(a)(1). Since the accused was arraigned within 

 

37 Id. The military judge awarded 23 days’ credit for “gaps that the command did 

not comply with” the Liberty Risk Order by failing to timely reissue orders to the appellant, and 85 days’ credit for holding pro-forma hearings.

38 Id. at 633

39 Although the appellant ceased his text message conversation with this person 

and did not meet her for sex, he told NCIS he did so because he learned the woman 

was a Japanese prostitute.
United States v. Jennings, No. 201700241

16

120 days of the preferral of charges,40 he was not denied his right to a speedy 

trial under R.C.M. 707. 

C. Ineffective Assistance of Counsel

As we noted above, the appellant alleges that his trial defense team provided ineffective assistance because they failed to assert his speedy trial 

rights under R.C.M. 707. Error! Hyperlink reference not valid.Error! 

Hyperlink reference not valid.We analyze ineffective assistance of counsel 

claims under the test outlined by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to prove ineffective assistance of counsel, the appellant must show that his trial defense team’s performance was 

deficient and that the deficiency deprived him of a fair trial. Error! Hyperlink reference not valid.United States v. Garcia, 59 M.J. 447, 450 

(C.A.A.F. 2004). “When reviewing ineffectiveness claims, ‘a court need not 

determine whether counsel’s performance was deficient before examining the 

prejudice suffered by the defendant.’ Rather, ‘[i]f it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that 

course should be followed.’” United States v. Datavs, 71 M.J. 420, 424-25 

(C.A.A.F. 2012) (alteration in original) (quoting Strickland, 466 U.S. at 697).

With respect to Strickland’s prejudice prong, when an allegation of ineffective assistance of counsel is based on a failure to make a motion, the appellant “must show that there is a reasonable probability that such a motion 

would have been meritorious.” United States v. McConnell, 55 M.J. 479, 482 

(C.A.A.F. 2001) (citations and internal quotation marks omitted); see also 

United States v. Flack, 47 M.J. 415, 417 (C.A.A.F. 1998) (citing Kimmelman 

v. Morrison, 477 U.S. 365, 375 (1986)).

As discussed above, the appellant’s placement in a liberty risk status did 

not trigger the R.C.M. 707 clock. As a result, any R.C.M. 707 motion filed by 

the appellant’s trial defense team would not have been meritorious. Therefore, the appellant suffered no prejudice.

D. Challenge For Cause

The trial defense team challenged Major H for cause, claiming both actual 

and implied bias. Major H was an aviation supply officer assigned to the appellant’s command, and, while in the process of taking over as squadron executive officer, he attended legal briefs from which he remembered seeing the 

 

40 There were a total of 36 days of excludable delay. See Preliminary Hearing Officer’s Report of 15 Apr 16 at 11; Preliminary Hearing Exhibit 3 at 1.
United States v. Jennings, No. 201700241

17

appellant’s name and learning that the appellant was on legal hold and was 

pending court-martial. Major H stated that he did not know anything about 

the charges and stated that he approached the case with a “blank slate.”41

The military judge denied the appellant’s challenge for cause. The appellant 

then elected not to exercise his peremptory challenge against any member. 

Failure to exercise a peremptory challenge against any member waives

further review of a challenge for cause. R.C.M. 912(f)(4); United States v. Medina, 68 M.J. 587, 592 (N-M. Ct. Crim. App. 2009); United States v. Leonard, 

63 M.J. 398, 402-03 (C.A.A.F. 2006). Therefore, this issue is without merit.

E. Sentencing Instructions

During deliberations on sentencing the members asked the military judge

whether the appellant was “on class ‘C’ liberty restriction, tier 3 liberty, or 

just restricted to base?”42 After discussing a potential answer with the parties—and declining the trial defense team’s request to inform the members 

that the appellant spent “732 days”43 on liberty risk “C”—the military judge 

provided the members with the following response:

And the answer is “yes.” Staff Sergeant Jennings was on liberty 

risk “C” for which I, the military judge, in a legal decision, have 

granted him a 108 days credit. However, you do not have the 

evidence before you on the conditions of that specific liberty 

condition; therefore it should not be a consideration in your 

sentencing decision; okay? I made a legal ruling as to that particular issue.44

The appellant argues that this answer misled the members because it 

“implies that there was [sic] only 108 days of restriction.”45 The appellant also 

contends that this answer instructs the members that they should not consider the appellant’s liberty conditions—and “the fact that he spent 732 days 

under these conditions” without any “misconduct or infractions”—in their 

 

41 Record at 138.

42 AE XLVIII.

43 Record at 734. Although arraigned after 482 days on Liberty Risk “C,” by the 

time the appellant was sentenced, he had spent 732 days restricted to MCAS Iwakuni.

44 Id. at 744-45.

45 Appellant’s Brief at 41.
United States v. Jennings, No. 201700241

18

sentencing decision.46 We will analyze this argument using the two appropriate standards: one which reviews the propriety of the instruction actually

given, and one which evaluates the military judge’s rejection of a proposed 

instruction. We begin by evaluating the propriety of the instruction given.

A military judge is required to “give the members appropriate instructions on sentence.” R.C.M. 1005(a). When responding to a members’ question,

“it is appropriate for the judge to answer if he . . . can draw upon a body of 

information that is reasonably available and which rationally relates to the 

sentencing considerations in [R.C.M.] 1005(e)(5).” United States v. Duncan, 

53 M.J. 494, 499-500 (C.A.A.F. 2000). The military judge’s authority includes 

the discretion to “instruct the members of the Article 13 credit and how it 

would be credited.” United States v. Barnett, 71 M.J. 248, 252 (C.A.A.F. 

2012). Thus, we review issues concerning non-mandatory instructions—such 

as instructions involving Article 13, UCMJ, credit—for an abuse of discretion. 

United States v. Forbes, 61 M.J. 354, 358 (C.A.A.F. 2005) (citing United 

States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993)). Under the circumstances of this case, we hold that the military judge did not abuse his discretion when instructing the members that the appellant was entitled to 108 

days of confinement credit. 

Furthermore, we reject the appellant’s argument that the instruction inappropriately directed the members to disregard appropriate sentencing evidence. The trial defense team did not present evidence on the specific conditions of liberty risk. But the appellant’s unsworn statement described the 

hardship his family endured during their separation and noted that the appellant had “been confined to the base for nearly two years, which sounds an 

awful lot like probation. The only thing missing has been a tracking device on 

his ankle.”47 Although the military judge instructed the members not to consider “that specific liberty condition,” for which no evidence had been presented, he had already properly instructed the members to consider all matters in mitigation, which would include the appellant’s unsworn statement.48

 

46 Id. We also reject the appellant’s argument as it relates to the lack of infractions, as there was no such evidence presented before the members.

47 Record at 647. The trial defense team read a prepared statement from the appellant’s wife, which the appellant expressly incorporated as part of his own unsworn 

statement. Id. at 658.

48 Id. at 715-16. And in answering another members’ question, the military judge 

also stated, “You have all the evidence in front of you with respect to aggravation, 

extenuation, and mitigation.” Id. at 744.
United States v. Jennings, No. 201700241

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In analyzing the military judge’s response to the members’ question, we find 

the military judge gave a legally correct answer that was “tailored to the facts 

and circumstances for the case.” Duncan, 53 M.J. at 499.

We next analyze the military judge’s rejection of the trial defense team’s 

request to instruct the members that the appellant spent 732 days in a Liberty Risk status. Our superior court has held that “[w]hile counsel may request 

specific instructions, the military judge has substantial discretion in deciding 

on the instructions to give and whether the requested instruction is appropriate. This discretion must be exercised in light of correct principles of law 

as applied to the facts and circumstances of the case.” United States v. Miller, 

58 M.J. 266, 270 (C.A.A.F. 2003). Denial of a requested instruction, therefore,

is error if: 

(1) the requested instruction is correct; (2) it is not substantially covered in the main charge; and (3) it is on such a vital point 

in the case that the failure to give it deprived [the] defendant of 

a defense or seriously impaired its effective presentation.

Id. (citations and internal quotation marks omitted). All three prongs of the 

Miller test must be satisfied. We conclude that the trial defense team’s proposed instruction fails the second prong of the Miller test because the military judge’s instruction in response to the members’ question substantially 

covered the issue. The members asked a question that called for one of three 

responses—whether the appellant was “on “class ‘C’ liberty restriction, tier 3 

liberty, or just restricted to base[.]”49 The military judge answered the question asked, informing the members the appellant was on liberty risk “C.”50

The exact conditions of the appellant’s liberty risk were not in evidence. 

In fact, the trial defense team made a tactical decision not to present those 

conditions, although they initially intended to do so.51 Even before the members began sentencing deliberations and asked this question, the parties spe-

 

49 AE XLVIII

50 In actuality, the appellant was on a modified version of liberty risk “C,” which 

entailed several exceptions from liberty risk “C” as the members might understand, 

so the military judge’s answer inured to the appellant’s benefit. See Record at 733.

51 The trial defense team contemplated introducing the liberty risk order, but it 

would require relaxing the rules of evidence and the trial counsel indicated he would 

then introduce rebuttal evidence. As a result, the trial defense team did not offer the 

liberty risk order, a decision the trial defense team later characterized as a deliberate 

“choice.” Id. at 656.
United States v. Jennings, No. 201700241

20

cifically discussed whether the sentencing instructions should include a reference to the 108-day confinement credit. The trial defense team agreed to 

delete the proposed instruction from the draft instructions.52

Having no evidence in the record of the specific liberty risk conditions—

based on trial defense counsel’s tactical decision not to present the liberty 

risk instruction—the military judge was properly concerned about permitting 

the members to consider the liberty risk in formulating a sentence. It would 

not be appropriate or feasible to fully incorporate into the military judge’s answer all the various exceptions and conditions that were made to the standard liberty risk “C” conditions during each of the 29 times the commander 

reinstated the order.53 We are mindful of the perils inherent in presenting 

evidence during deliberations, and there was no request from the members 

for additional evidence in this case. See United States v. Bess, 75 M.J. 70 

(C.A.A.F. 2015). 

The military judge appropriately instructed the members not to speculate 

about the conditions of the appellant’s liberty risk—and accordingly not to 

base their sentence on the conditions they believed might have been imposed. 

And it was appropriate to deny the defense request to graft additional information—substantive evidence the defense chose not to present—into the military judge’s answer. The answer to the members’ question did not urge them

to disregard any other evidence already before them, such as the appellant’s 

unsworn statement. As a result, the military judge did not abuse his discretion in denying the appellant’s requested instruction.

III. CONCLUSION

The findings and sentence are AFFIRMED. 

Judge TANG concurs. 

 

52 Id. at 663, 672. The military judge was concerned the members might sentence 

the appellant more harshly in order to counteract the sentence credit, and the trial 

defense team indicated they did not intend to argue the specific conditions on liberty 

as mitigating factors, although she did reference the appellant’s unsworn statement 

relating to “probation”-like conditions for two years. Id. at 663, 709.

53 See id. at 733.
LAWRENCE, Judge (concurring):

I join the lead opinion’s reasoning and conclusions, agreeing that the findings and sentence should be affirmed. I write separately, however, to note 

that the cavalier approach to liberty risk apparent in this case jeopardizes

both courts-martial and the legitimate exercise of this vital liberty risk program.

From the time of his apprehension, the appellant clearly constituted a 

risk to the foreign relations of the United States with direct impact to the 

neighboring Japanese society. Our superior court notes the dilemma commanders would face were they forced to “choose between jeopardizing international relations by releasing a subordinate properly subject to the libertyrisk program or running afoul of R.C.M. 707.” United States v. Bradford, 25 

M.J. 181, 186 (C.M.A. 1987). The government correctly points out that the 

conditions of the appellant’s liberty risk order were less onerous than those 

imposed in a number of other cases.1 And the discussion in R.C.M. 304(a) 

notes that “[c]onditions on liberty must not hinder pretrial preparation . . . . 

Thus, when such conditions are imposed, they must [be] sufficiently flexible 

to permit pretrial preparation.” The appellant’s liberty conditions did not apparently impede his pretrial preparation. See United States v. Oliver, No. 

200101259, 2005 CCA LEXIS 129 (N-M. Ct. Crim. App. 29 Apr. 2005) (unpub. 

op.) (declining to grant relief where there was no allegation that the liberty 

risk conditions imposed were so onerous to be tantamount to confinement or 

insufficiently flexible to inhibit pretrial preparations).

There is surely a point at which deference to the commander (and our 

substantial deference we give to the military judge’s finding of fact) becomes 

untenable. While court-martial would be the most logical conclusion given the 

seriousness of the allegations and relatively few complexities in taking this

case to trial based upon an NCIS-led proactive operation that involved government—civilian and military—personnel as witnesses and took place either 

online or in areas controlled by the United States, the appellant was on liberty risk “C” for 482 days before his arraignment. It seems clear that Manual of 

the Judge Advocate (JAGMAN) § 0104b would not contemplate the appellant 

remaining indefinitely onboard this overseas installation subject to these 

conditions on his liberty while in a non-combat assignment. 

This case turns on its procedural posture, in which we owe substantial 

deference to the military judge’s finding that the commander had no “ill in-

 

1 Government’s Brief of 1 June 2018 at 9.
United States v. Jennings, No. 201700241

22

tent” in imposing the conditions of liberty risk.2 Ultimately, I side with my 

colleagues and agree that the military judge’s finding is not clearly erroneous; however, I believe this is, unnecessarily, a relatively close call. The 

commander’s primary purpose is difficult to discern given the haphazard application of this liberty risk order. The conditions imposed on the appellant do 

not appear to address the risks he posed to foreign relations—his alleged offenses had nothing to do with alcohol, the command did not impose any conditions on the appellant’s ability to mail, email, text message, engage in social media or in telephonic communications or otherwise converse with Japanese nationals, and the decision to keep the appellant in Japan exposed the 

Japanese to the appellant for considerably longer than if the command had 

simply returned the appellant to the United States. Nonetheless, the liberty 

risk conditions imposed were relatively benign, and there is no evidence to 

suggest that the appellant offered objection or sought to curtail any conditions at the liberty risk review hearings that were held,3 nor was there any 

evidence he was either denied a leave request to return to visit his family in 

the United States or for them, or any other individual, to visit him while he 

remained on the installation.

Although the command’s implementation of liberty risk conditions and occasional inattentiveness to requirements was far from the model, it was clear 

that the appellant posed the risk contemplated by this program, the conditions imposed were not tantamount to confinement, and the conditions did

not limit his ability to prepare for trial. I concur with the lead opinion and its 

conclusions.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court

 

2 Record at 629.

3 In contrast, this court set aside the finding and sentence and dismissed all 

charges on speedy trial grounds where “ . . . none of the administrative requirements 

of the liberty risk program, such as notification of the right of appeal, the length of 

the status, and the right to periodic review, were followed . . . .” United States v. 

Wilkes, 27 M.J. 571, 573 n.1 (N.M.C.M.R. 1988).