UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class JOSHUA D. NEWSOM

United States Air Force

ACM 38224

16 January 2014

Sentence adjudged 8 June 2012 by GCM convened at Malmstrom Air Force 

Base, Montana. Military Judge: Martin T. Mitchell (sitting alone).

Approved Sentence: Dishonorable discharge, confinement for 2 years, and 

reduction to E-1.

Appellate Counsel for the Appellant: Captain Christopher D. James and 

Dwight H. Sullivan.

Appellate Counsel for the United States: Colonel Don M. Christensen;

Lieutenant Colonel Nurit Anderson; and Gerald R. Bruce, Esquire.

Before

ROAN, MARKSTEINER, and WIEDIE

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final release.

WIEDIE, Judge:

A general court-martial composed of a military judge sitting alone convicted the 

appellant, consistent with his pleas, of one specification of conspiracy to commit larceny;

six specifications of larceny of nonmilitary property; one specification of making a false 

official statement; one specification of wrongful use of marijuana; one specification of

failure to obey a lawful order; one specification of dereliction of duty; and one 

specification of unlawful entry, in violation of Articles 81, 121, 107, 112a, 92, and 

134, UCMJ, 10 U.S.C. §§ 881, 921, 907, 912a, 892, 934. Contrary to his pleas, the 

appellant was also convicted of one specification of larceny of military property and one 
2 ACM 38224

specification of larceny of nonmilitary property, in violation of Article 121, UCMJ. The 

adjudged sentence consisted of a dishonorable discharge, confinement for 2 years, and 

reduction to E-1. The convening authority approved the sentence as adjudged, but 

waived automatic forfeitures for the benefit of the appellant’s dependents. 

The appellant has submitted three assignments of error: (1) Whether the military 

judge erred by failing to suppress the appellant’s confession and evidence derived 

therefrom; (2) Whether the Government’s violation of the 120-day post-trial processing 

standard for taking action after completion of trial warrants meaningful relief under 

United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002); and (3) Whether the evidence is 

factually insufficient to prove larceny of military property beyond a reasonable doubt.1 

Background

In his short Air Force career, the appellant engaged in numerous criminal acts 

which eventually led to his court-martial. The facts surrounding most of his offenses are 

not relevant for our consideration of the errors alleged. The facts pertinent to our 

discussion are outlined below. 

The appellant and Airman Basic (AB) DN had been friends prior to a falling out 

over the appellant’s having implicated AB DN in a criminal investigation. When AB DN 

was placed in pretrial confinement, the appellant was unable to retrieve some uniform 

items and a fish tank he had left in AB DN’s dorm room. 

Without AB DN’s permission, the appellant and Airman First Class (A1C) MG 

entered AB DN’s dorm room through an unlocked window. The appellant retrieved his 

items and climbed back out the window. While the appellant was retrieving his 

belongings, A1C MG noticed AB DN’s military gear in the bottom of a closet. A1C MG 

grabbed an A-bag and stuffed the gear into it. 

A1C MG handed the bag to the appellant through the window. The appellant 

asked what was in the bag and A1C MG responded that it was gear from AB DN’s closet. 

A1C MG asked the appellant if he would keep the stuff at his apartment. After leaving 

the dorms, the pair drove to the appellant’s apartment where the gear was stored for a 

month and a half before A1C MG picked it up. 

On 23 August 2011, the appellant was questioned by military investigators 

concerning a myriad of alleged crimes. The appellant was advised of his rights under 

Article 31, UCMJ, 10 U.S.C. § 831, which he waived prior to questioning. 

 

1 This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 
3 ACM 38224

Although he initially denied involvement multiple times at the outset of the 

interview, the appellant eventually admitted to his role in the taking of the military gear 

from AB DN’s room and identified A1C MG as also being involved. He also admitted to 

underage drinking. After these admissions, the appellant was asked who provided the 

alcohol. The appellant hesitated in responding. The investigator told that appellant that 

not telling what he knew was “lying by omission” and could get him put in jail. The 

appellant then identified the persons who had provided the alcohol. 

Later in the interview, the appellant confessed to marijuana and spice use. At the 

conclusion of the oral interview, the appellant was again advised of his rights in 

conjunction with making a written statement on an Air Force Form 1168, Statement of 

Suspect/Witness/Complainant. 

Following the appellant’s admissions, investigators interviewed A1C MG. Like 

the appellant, A1C MG initially denied any involvement with the larceny of AB DN’s 

military gear. However, when confronted with the fact that the appellant had implicated 

him, A1C MG admitted his involvement. He also confessed to numerous other larcenies 

and implicated the appellant in those additional crimes. 

The appellant was also questioned by criminal investigators on 29 August and 

14 September 2011 under rights advisement. On both occasions, the appellant made 

incriminating admissions. At trial, the military judge denied the appellant’s motion to 

suppress the 23 August 2011 statements made after the “lying by omission” comment, as 

well as all evidence derived from those statements, to include the statements made on 29 

August and 14 September 2011. Despite having prevailed on the motion, the 

Government did not introduce any of the appellant’s three statements during their 

findings case. The Government did, however, call A1C MG as a witness against the 

appellant. 

The appellant’s five-day court-martial concluded on 8 June 2012. It took 83 days 

for the 572 page record to be transcribed. The court reporter responsible for transcribing 

the record was on medical leave for 40 of those 83 days. The record of trial was 

authenticated on 21 September 2012 and the Staff Judge Advocate’s recommendation 

was completed on 16 October 2012. When the appellant submitted clemency matters on 

7 November 2012, he noted over 120 days had already passed since the conclusion of the 

trial. The Convening Authority took action on 15 November 2012, 160 days after the 

completion of the trial. 

Motion to Suppress

The appellant alleges the military judge erred by failing to suppress portions of his 

confession and the evidence derived therefrom which occurred after an investigator told 

him that not answering a question was lying by omission and could result in him going to 
4 ACM 38224

jail.2 “The voluntariness of a confession is a question of law which we review de novo.” 

United States v. Ellis, 57 M.J. 375, 378 (C.A.A.F. 2002). This Court reviews a military 

judge’s findings of fact under a “clearly erroneous” standard. United States v. Pipkin,

58 M.J. 358, 360 (C.A.A.F. 2003). “An abuse of discretion occurs when the trial court’s 

findings of fact are clearly erroneous or if the court’s decision is influenced by an 

erroneous view of the law.” United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) 

(citation omitted). “The abuse of discretion standard is a strict one, calling for more than 

a mere difference of opinion. The challenged action must be ‘arbitrary, fanciful, clearly 

unreasonable,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J. 120, 

130 (C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); 

United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).

“[A]n involuntary statement or any derivative evidence therefrom may not be 

received in evidence against an accused who made the statement.” Mil. R. Evid. 304(a). 

“A statement is ‘involuntary’ if it is obtained in violation of the self-incrimination 

privilege or due process clause of the Fifth Amendment to the Constitution of the United 

States, Article 31, [UCMJ,] or through the use of coercion, unlawful influence, or 

unlawful inducement.” Mil. R. Evid. 304(c)(3).

Under the provisions of Article 31, UCMJ, a suspect’s right to remain silent does 

not depend upon whether he is innocent or guilty; it depends upon whether he is a 

suspect. United States v. Hundley, 45 C.M.R. 94 (C.M.A. 1972). “If a suspect is warned 

that he can remain silent only if he was in fact involved in the offense of which he is 

suspected, that advice is improper as a part of an Article 31[, UCMJ,] warning.” Id.; see 

also United States v Williams, 9 C.M.R. 60 (C.M.A. 1953); United States v. Elliott, 

35 C.M.R. 153 (C.M.A. 1964).

In the present case, the Government did not introduce any of the three statements 

the appellant made and, thus, any challenge to the military judge’s ruling concerning the 

statements is moot. However, the appellant also contends that, but for his confession, 

A1C MG would not have confessed and thereby implicated him in additional crimes. 

The appellant further argues that A1C MG’s confession and subsequent testimony against 

him was derivative of his 23 August 2011 confession. While it is true that A1C MG 

confessed after being confronted with the fact that the appellant implicated him, we find 

the claim that he would not have confessed but for being implicated by the appellant to be 

dubious. Nonetheless, it does not matter to our analysis. The appellant’s position is 

simply not supported by the facts. Before the investigator said anything at all about 

lying by omission, the appellant had admitted to his involvement in the break-in at 

AB DN’s room and that A1C MG was involved. 

 

2 The appellant concedes that the military judge’s ruling on the suppression motion does not affect the validity of his 

guilty pleas. 
5 ACM 38224

Considering the totality of the circumstances, we conclude the appellant’s 

confession was voluntary. We hold that the military judge did not err in failing to 

suppress the confession.

We caution against any overly broad reading of our holding. We are deeply 

troubled by the investigator’s decision to tell the appellant, after an Article 31, UCMJ,

rights advisement, that not answering questions is lying by omission and could result in 

his being sent to jail. This is an incorrect statement of the law. Even more troubling, 

under different facts such conduct could very well result in a clear violation of Article 31, 

UCMJ.

Post-Trial Delay

The appellant argues that he was deprived of his right to a speedy post-trial review 

because 160 days elapsed between the date of sentencing and the date of the convening 

authority’s action. We review an appellant’s due process right to a speedy post-trial 

review de novo. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). In Moreno,

our superior court established guidelines that trigger a presumption of unreasonable delay 

in certain circumstances: (1) when the action of the convening authority is not taken 

within 120 days of the completion of trial; (2) when the record of trial is not docketed by 

the service Court of Criminal Appeals within 30 days of action; and (3) when appellate 

review is not completed with a decision rendered within 18 months of docketing the case 

before the Court of Criminal Appeals. Id. at 142. Furthermore, Article 66(c), UCMJ,

10 U.S.C. § 866(c), empowers the service courts to grant sentence relief for excessive 

post-trial delay without the showing of actual prejudice required by Article 59(a), UCMJ, 

10 U.S.C. § 859(a). Tardif, 57 M.J. at 224. The appellant asks that we provide him 

meaningful relief under Tardif.

In this case, the total period of time from trial to action was greater than 120 days. 

Because this delay is facially unreasonable, we examine claim under the four factors set 

forth 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 135-36. When we assume error, but are 

able to directly conclude it was harmless beyond a reasonable doubt, we do not need to 

engage in a separate analysis of each factor. See United States v. Allison, 63 M.J. 365,

370 (C.A.A.F. 2006). This approach is appropriate in the appellant’s case. Having 

reviewed the entire record in this case, we find that the appellant has articulated no 

prejudice, and we likewise find none. 

We also find insufficient reason to grant the appellant relief under Tardif. The 

record shows that the Government surpassed the 120-day threshold between sentencing 

and action by 40 days. However, we find no evidence of bad faith or gross indifference 

to the post-trial processing of the appellant’s case sufficient to prompt sentence relief or 
6 ACM 38224

to exercise our power under Article 66(c), UCMJ, to provide a windfall remedy to the 

appellant by disapproving an otherwise legal sentence. Having considered the totality of 

the circumstances and the entire record, we conclude that any denial of the appellant’s 

right to speedy post-trial review was harmless beyond a reasonable doubt, and that relief 

is not otherwise warranted. See United States v. Harvey, 64 M.J. 13, 24-25 (C.A.A.F. 

2006); Tardif, 57 M.J. at 224.

Factual Sufficiency

The appellant argues that the evidence is factually insufficient to prove that he 

stole military property as alleged in Specification 1 of Charge III. The appellant’s 

position is that A1C MG was solely responsible for the theft and that he bears no 

culpability for the crime. 

Under Article 66(c), UCMJ, we review issues of factual sufficiency de novo. 

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, [we] are [ourselves] 

convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner, 

25 M.J. 324, 325 (C.M.A. 1987). Review of the evidence is limited to the entire record, 

which includes only the evidence admitted at trial and exposed to the crucible of crossexamination. Article 66(c), UCMJ; United States v. Bethea, 46 C.M.R. 223, 224-25 

(C.M.A. 1973).

The appellant does not dispute that the actions of A1C MG amount to larceny. 

Rather, the appellant claims he is not criminally liable for the theft because he did not 

realize A1C MG was taking the military gear from the closet. This argument ignores the 

facts and the law. Legally, an individual who assists in the commission of an offense is a 

principal to that offense and “equally guilty of the offense as the one who commits it.” 

Article 77(b)(1), UCMJ, 10 U.S.C. § 877(b)(1). The appellant went to AB DN’s room 

with A1C MG. Although the appellant initially may not have been aware of A1C MG’s 

intent to steal the military gear, he soon became aware of that intent and assisted in the 

commission of the offense. While the appellant was standing outside of AB DN’s room 

and A1C MG was inside, A1C MG handed the appellant a bag. The appellant asked what 

was in the bag and was told it was gear from AB DN’s closet. The appellant not only 

helped A1C MG physically remove the stolen gear from the dorm room but he stored it at 

his residence for a month and a half until A1C MG eventually picked it up. 

We have considered the evidence in the light most favorable to the prosecution. 

We have also made allowances for not having personally observed the witnesses. Having 

paid particular attention to the matters raised by the appellant, we find the evidence 

factually sufficient to support his conviction. We are convinced beyond a reasonable 

doubt that the appellant is guilty of the charge and specification at issue.
7 ACM 38224

Conclusion

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

prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c), 

UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 

2000). Accordingly, the approved findings and sentence are

AFFIRMED.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court