UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201500400

_________________________

UNITED STATES OF AMERICA

Appellee

v.

RIGO J. BETANCOURT

Sergeant (E-5), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Elizabeth A. Harvey, USMC.

Convening Authority: Commanding General, 1st Marine Division, 

Camp Pendleton, CA.

Staff Judge Advocate’s Recommendation: Lieutenant Colonel Devin 

C. Young, USMC.

For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.

For Appellee: Lieutenant Commander Jeremy Brooks, JAGC, USN; 

Lieutenant Commander Justin Henderson, JAGC, USN.

_________________________

Decided 6 June 2017

_________________________

Before CAMPBELL, RUGH, AND HUTCHISON, Appellate Military Judges

_________________________

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

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

RUGH, Judge:

A panel of officer and enlisted members sitting as a general court-martial 

convicted the appellant, contrary to his pleas, of one specification of 

aggravated sexual contact and two specifications of assault consummated by 
United States v. Betancourt, No. 201500400

2

a battery in violation of Articles 120 and 128, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 920 and 928 (2012).1

The military judge also convicted the appellant, pursuant to his pleas, of 

one specification of conspiracy to commit assault, two specifications of 

violating a lawful general order, two specifications of signing a false record, 

one specification of cocaine use, one specification of possession of cocaine 

with intent to distribute, one specification of possession of methamphetamine 

with intent to distribute, one specification of larceny, one specification of 

forgery, and one specification of assault consummated by a battery in

violation of Articles 81, 92, 107, 112a, 121, 123, and 128, UCMJ; 10 U.S.C. §§ 

881, 892, 907, 912a, 921, 923, and 928 (2012). 

The members sentenced the appellant to five years’ confinement, 

reduction to pay grade E-1, total forfeiture of pay and allowances, and a 

dishonorable discharge. The convening authority approved the sentence as 

adjudged and, except for the dishonorable discharge, ordered the sentence 

executed.

The appellant asserts seven assignments of error (AOE): (1) that the 

evidence of the appellant’s convictions for assault consummated by a battery 

and aggravated sexual contact was factually insufficient; (2) that the military 

judge abused her discretion in failing to suppress evidence derived from the 

search of the appellant’s cell phone; (3) that the military judge abused her 

discretion in admitting evidence under MILITARY RULE OF EVIDENCE (MIL. R.

EVID.) 404(b), SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2012 ed.); (4) that a command authorized search of the defense 

counsel offices amounted to unlawful command influence; (5) that the search 

also amounted to prosecutorial misconduct; (6) that the military judge 

violated the appellant’s right to counsel under the Sixth Amendment to the 

Constitution by disqualifying his original trial defense counsel and 

compelling them to testify against him at trial; and (7) that the promulgating 

order does not accurately reflect the court-martial’s findings.

2

After weighing all the evidence in the record of trial and recognizing that 

we did not see or hear the witnesses as did the trial court, this court is 

convinced of the appellant’s guilt beyond reasonable doubt. United States v. 

 

1 After findings, the military judge dismissed one specification of assault 

consummated by battery as multiplicious. Record at 1706.

2 In a supplemental AOE, the appellant argued the military judge erred in 

instructing the members regarding reasonable doubt. In accordance with the holding 

in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017), we summarily reject the 

supplemental assignment of error. United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A. 

1992).
United States v. Betancourt, No. 201500400

3

Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006) (citing United States v. 

Turner, 25 M.J. 324, 325 (C.M.A. 1987) and Art. 66(c), UCMJ)), aff'd on other 

grounds, 64 M.J. 348 (C.A.A.F. 2007). Additionally, having carefully

considered the record of trial, the pleadings, and oral argument on the 

second, fourth, and fifth AOE, we find no error materially prejudicial to a 

substantial right of the appellant and affirm.

I. BACKGROUND

In July 2013, to cope with what he alleged was a close friend’s death, the 

appellant joined a Southern California criminal motorcycle gang. During the 

process of first pledging then fully joining the gang, the appellant embarked 

on a course of reckless and criminal behavior. He began using cocaine with 

his then-girlfriend, Ms. MR. He acquired quantities of cocaine and 

methamphetamines, which he weighed and bagged for distribution to other 

gang members and “hangers-on.”

3 He tattooed a swastika on his stomach, 

and publicly wore the accoutrements–the clothing, badges, and other 

symbols–of the criminal motorcycle gang. Additionally, he defrauded the 

government of basic allowance for housing (BAH) after he was divorced.

Marine Corps Criminal Investigative Division (CID) first learned of the 

appellant’s offenses in December 2013 after he provided a positive urinalysis 

for cocaine. The investigation then expanded to include his affiliation with 

the criminal motorcycle gang and his other acts.

On 29 January 2014, the appellant conspired with a fellow gang member, 

First Sergeant Charles Reynolds, U.S. Marine Corps, to assault a gunnery 

sergeant because he believed the gunnery sergeant was attempting to pursue 

his girlfriend, Ms. HK. After the girlfriend tricked the gunnery sergeant into 

meeting at a local bar, the two men traveled to the bar where they surprised 

the gunnery sergeant and beat him. 

In early March 2014 Ms. MR, who was now no longer the appellant’s 

girlfriend, contacted a CID agent claiming to have information about the 

appellant’s use of cocaine and his fraudulent claim to BAH. During follow-up 

interviews with agents, Ms. MR also provided information on the appellant’s 

participation in the criminal motorcycle gang and his related possession of 

cocaine and methamphetamines. This included witnessing the appellant with 

a scale and small bags used for preparing controlled substances for 

distribution and sale. 

 

3 A term of art used to describe followers of the gang who were not members or 

pledges.
United States v. Betancourt, No. 201500400

4

On 12 March 2014, after initially describing the appellant’s criminal 

activities to CID, Ms. MR contacted the appellant via text message and 

bragged to him about what she had done. 

 [Text from Ms. MR:] Don’t expect to get anything from here 

either. All your gear won’t be here. I’m getting rid of everything 

that u left here. Should a thought ab what u said to me before 

it [expletive] u worse. I’ll be setting up with cid too. I never 

wanna see u again. I’ll make sure I don’t while you rot away in 

a jail cell at the brig. [Expletive] with the wrong one punk

[Text from the appellant:] Why are you still texting me . . .

[Text from Ms. MR:] Ur gonna be sorry u treated me this 

way

[Text from the appellant:] There is nothing I can do to stop 

you . . . you been black mailing me with this for far to 

long . . . your gonna do it regardless4

After this exchange, the appellant drove to Ms. MR’s home. Once there, 

the appellant and Ms. MR argued about his involvement in the criminal 

motorcycle gang. Ms. MR referred to the gang as “a bunch of losers,” enraging 

the appellant.5 He attacked Ms. MR, grabbing her by the throat. 

Q [Trial Counsel]: Do you remember how that happened?

A [Ms. MR]: Honestly, it was just all – I just know he was 

screaming at me and, you know, telling me that this is–you 

know, this had to happen; I did this to myself; I just couldn’t 

keep my mouth shut; and, you know, I don’t talk about his club 

and those types of things.6

He then grabbed her by her crotch, and stated, “This [Ms. MR’s vagina] is 

mine, nobody else’s. This is mine.”7

After the fight, the appellant left, and Ms. MR called 9-1-1 to report the 

assault. The appellant was placed in pretrial confinement on 14 March 2014, 

and photos were taken of his tattoos, including the swastika tattoo Ms. MR 

had previously described to the CID agent. As a result of the assault, Ms. MR 

suffered a hematoma in her vaginal area, requiring surgery, and bruises to

her neck.

 

4 Prosecution Exhibit (PE) 24 at 8-9 ([sic] throughout).

5 Record at 1211.

6 Id. at 1212.

7 Id. at 1215.
United States v. Betancourt, No. 201500400

5

Ten days after the appellant was placed in the brig, the appellant’s Staff 

Non-Commissioned Officer-in-Charge (SNCOIC) contacted the appellant’s 

detailed trial defense counsel, First Lieutenant (1stLt) I, with a request from 

the appellant–that the SNCOIC pass the appellant’s cell phone over to 1stLt 

I to review it for potentially exculpatory text messages involving the assault 

on Ms. MR. 1stLt I agreed and took possession of the phone, its blue and 

white case, a phone charger, and an extra battery.

The next day, 25 March 2014, 1stLt I powered on the appellant’s phone 

and reviewed the call logs and the text messages between the appellant and

Ms. MR. While reviewing, 1stLt I took several screenshot images of 

potentially exculpatory text messages and then exported the images by 

connecting the phone to her government computer. During this process, 1stLt 

I deleted some of the screenshot images which she took and which were saved 

to the appellant’s phone. She then stored the phone in a file cabinet drawer in 

her office located onboard Marine Corps Base Camp Pendleton, 22 Area. 

While in her possession, the blue and white case remained on the phone.

On 4 April 2014, 1stLt I filed a motion requesting the appellant’s release 

from pretrial confinement. She included some of the screenshot images of the 

text messages from the appellant’s phone in that motion. Shortly thereafter, 

1stLt F was detailed to the case as an assistant defense counsel. 

Now with knowledge of potentially exculpatory text messages on the 

appellant’s phone, CID became interested in locating the phone. The trial 

counsel approached 1stLt I, who agreed to provide a copy of the remaining 

text messages involving Ms. MR from the phone to the government. At the

time, there was a general consensus among the parties that 1stLt I would be 

able to turn over the phone to government agents if or when she was 

presented with a command authorization to search and seize the phone. With 

the assistance of the trial counsel, the lead CID agent drafted a probable 

cause affidavit to be presented to the 22 Area Commander as basis for a

Command Authorized Search and Seizure (CASS). Based on indications that 

some of the appellant’s text messages may have been deleted, the lead CID 

agent believed that the phone might contain incuplatory evidence and other 

incriminating messages, calls, and photos. 

On 30 April 2014, an Article 32, UCMJ, preliminary hearing was held 

regarding the allegations against the appellant. 1stLt I again presented the 

screenshot images of the text messages as evidence. During the hearing, 

1stLt I was informed by her senior defense counsel of the government’s 

intention to obtain a CASS for the phone. After the hearing, 1stLt I passed 

the phone to her assistant counsel, 1stLt F. 

1stLt F connected the powered-on phone to his government computer and 

transferred data from the phone to his computer. For unknown reasons, the 
United States v. Betancourt, No. 201500400

6

phone was also removed from its case. It was then stored in 1stLt F’s locked 

desk drawer. The case, the charger, and the spare battery were placed in a 

separate desk drawer containing 1stLt F’s personal items.

On 1 May 2014, the lead CID agent presented an affidavit requesting a 

search of “[t]he Defense Section, Legal Service Support Section located on the 

second floor of Building [X], MCB CPC, and/or the possession of defense trial 

counsels identified as [1stLt I] or [1stLt F]” and “[t]he personal Android 

cellular telephone belonging to [the appellant]” to the 22 Area Commander.8

Based on the affidavit and other discussions the Area Commander 

determined that probable cause existed to believe that the appellant’s phone 

contained evidence of his criminal activity. He then generally reduced this 

determination to writing in a CASS authorizing the search.

Sensitive to the potential issues involved in a search of defense counsel 

offices, the Area Commander also contacted the Legal Services Support 

Section–West (LSSS) Officer-in-Charge (OIC) to discuss the search. The 

LSSS OIC then discussed with the senior trial counsel (STC) the possibility of 

a preservation order pending judicial involvement post-referral of charges. 

The STC advised that a preservation order would be insufficient if the phone 

was remotely accessed when powered on. He also expressed concern that the 

phone might be returned to a friend of the appellant and, thereby, lost to the 

government. 

That same evening, 1stLt F took the phone out of his office with the 

intention of returning the phone to the appellant’s SNCOIC, who first 

provided the phone to the defense counsel. The SNCOIC was then to return 

the phone to Ms. HK, the appellant’s then-girlfriend. However, instead of 

delivering the phone to the SNCOIC or Ms. HK, 1stLt F returned it to his 

office.

That evening and the next day, the LSSS OIC, the STC, the senior 

defense counsel, and the Marine Corps Chief Defense Counsel discussed the 

potential search of the defense spaces, including the primary concern that 

professional rules prevented 1stLt I and 1stLt F from returning the phone 

voluntarily. As a result of these discussions, the STC decided against using 

search procedures that would protect attorney-client privileged materials,

because he believed the search would not require review of documents within 

the defense counsel’s offices.9 Instead, the STC and LSSS OIC agreed to other 

 

8 Appellate Exhibit (AE) XIII at 51.

9 This was a belief partially perpetuated by the senior defense counsel’s assertion 

that violation of the privilege wasn’t a primary concern in turning over the phone to 

government agents.
United States v. Betancourt, No. 201500400

7

safeguards, including video recording the search and conducting the search in 

the presence of the defense counsel. The LSSS OIC was not aware that the 

CASS also authorized searching defense counsel offices besides those of 1stLt 

I and 1stLt F.

On 2 May 2014, the STC met with CID agents at the LSSS offices in 

preparation for the search. The STC escorted the four agents–three searchers 

and one videographer–upstairs to the defense offices, where they requested 

the senior defense counsel produce the appellant’s phone. The senior defense 

counsel politely declined. The CID agents then began their search in 1stLt I’s 

office before moving on to 1stLt F’s office. The agents were professional but 

extremely thorough, searching through desk drawers, file cabinets, lockers, 

garbage cans, and ceiling tiles. The agents opened case files, but quickly 

flipped through the files without pausing to read documents within the files. 

Two additional law enforcement officers secured the spaces prohibiting 

personnel from leaving during the search.

In 1stLt F’s office, the agents discovered a phone matching the description 

of the appellant’s phone in a desk drawer. In a separate drawer, the agents 

found a blue and white phone case, a phone charger, and a spare battery. 

1stLt F declined to identify the phone, claiming privilege, and the agents 

seized the phone and accessories. 

After searching 1stLt F’s office, the agents continued to search the 

defense spaces including the offices of five other defense counsel who were 

not connected to the appellant’s case. In all, the search took around two hours 

to complete. 

Two weeks after the phone was seized from 1stLt F’s office, a CID agent 

made a forensic copy of every file in the appellant’s phone and provided it to a 

special taint review officer appointed by the LSSS OIC. The taint review 

officer “reviewed all the data from the cell phone,” but only did so to identify 

attorney-client “privileged information” contained therein.

10 The officer found 

no privileged material in his review.

The agent then reviewed the forensic copy for relevant data and 

discovered digital photographs related to the appellant’s membership in the 

criminal motorcycle gang in the “images” folder. Several of these photographs

were admitted into evidence.11 The forensic agent also identified several 

photographs in the “images” folder suggesting the appellant’s participation in 

drug use and drug distribution,

12 including one of a “[w]hite powdery 

 

10 AE XIV at 75.

11 Record at 1193; PE 14.

12 Record at 1195-96; PE 16.
United States v. Betancourt, No. 201500400

8

substance next to some money and a box cutter,”

13 and photos of the 

appellant with Ms. MR.14 Subsequent lab analysis of the blue and white 

phone case revealed cocaine residue.

In the fallout from the search, the CID agents involved were ordered to 

secure the video recording of the search and to not disclose any information 

regarding the search until directed to do so by a military judge. The lead CID 

agents were removed from further action on the case. The LSSS OIC directed 

a taint review, including a review of the video recording, by an independent 

investigating officer. The STC was removed from his position, and the trial 

counsel was disqualified from any involvement in the appellant’s case. Two 

new trial counsel and new CID investigators were assigned to the case from a 

Marine Complex Trial Team, a separate chain of command from the Legal 

Support Services Team led by the STC.

Upon motion from the government, the military judge disqualified 1stLt I 

and 1stLt F from further representation of the appellant because of a likely 

conflict of interest and because they had become necessary witnesses at trial.

At trial, the appellant pleaded guilty to violating general orders 

prohibiting participation in criminal gangs and racist tattoos; use of cocaine 

and possession of cocaine and methamphetamines with the intent to 

distribute; larceny of BAH and falsifying a form to effect that larceny; forging 

false orders to break a residential lease; and conspiracy to assault and 

assault and battery of his romantic rival. He also pleaded guilty to falsifying 

a brig visitation roster to indicate that Ms. HK, his new girlfriend, was a 

family member.

The appellant pleaded not guilty to the offenses related to the assault of 

Ms. MR. The members convicted the appellant of aggravated sexual contact 

for grabbing Ms. MR’s vaginal area with physical strength or violence 

sufficient to overcome, restrain, or injure her and assault consummated by 

battery for strangling Ms. MR with his hands.

II. DISCUSSION

A. Search of the appellant’s cell phone

“[N]o Warrants shall issue, but upon probable cause, supported by Oath 

or affirmation, and particularly describing the place to be searched and the 

persons or things to be seized.” U.S. CONST. amend. IV. Evidence obtained in

violation of the Fourth Amendment is generally inadmissible. MIL. R. EVID.

311.“We review a military judge’s ruling on a motion to suppress evidence for 

 

13 Record at 1195-96.

14 Record at 1194; PE 15.
United States v. Betancourt, No. 201500400

9

an abuse of discretion, viewing the evidence in the light most favorable to the 

party prevailing below.” United States v. Hoffman, 75 M.J. 120, 124 (C.A.A.F. 

2016). We review the military judge’s findings of fact for clear error and 

conclusions of law de novo. Id.

At trial, the military judge denied the appellant’s motion to suppress the 

results of the search for, and of, the appellant’s phone.15 The appellant argues 

that the military judge abused her discretion because: (1) the “search of the 

cell phone data was illegal because the CASS did not authorize it to be 

searched;” and, 2) even if it authorized a search, the CASS was overbroad 

“because it did not contain any search protocols, nor did it list with 

particularity the places to search on [the appellant’s] cell phone[.]”

16

1. Did the CASS authorize a search of the cell phone’s contents?

The CASS provided that “there is reason to believe that on the person of 

and/or on the premises known as” 1stLt I and 1stLt F and the defense 

counsel offices, “[t]here is now being concealed certain property,” the 

appellant’s “personal cellular telephone,” and that the CID agent is “hereby 

authorized to search the person and/or place named for the property specified 

and if the property is found to seize it.”17

The appellant now argues that because the CASS authorized seizing the 

phone but did not directly address searching the contents of the phone, any 

evidence discovered on the phone—namely photographs and text messages—

must be suppressed. We disagree.

First, we acknowledge the “unremarkable” conclusion that “cell phones 

may not be searched without probable cause and a warrant unless the search 

and seizure falls within one of the recognized exceptions to the warrant 

requirement.” United States v. Wicks, 73 M.J. 93, 97-99 (C.A.A.F. 2014)

(citations omitted) (suppressing evidence obtained from a cell phone where 

the “Government proceeded without a warrant or search authorization” to 

 

15 AE CLXXIV at 17.

16 Appellant’s Brief of 29 Jul 2016 at 34. The appellant also argues that the 

military judge “failed to address the search of [the appellant’s] cell phone data” in her 

ruling. Id. We disagree, given that under the heading “conclusions of law,” the 

military judge stated that the search authority “authorized two searches,” one of the 

defense spaces for the phone, and one of the phone “to obtain the evidence of the 

alleged offenses.” AE CLXXIV at 13-14. “Where a finding of fact is included under the 

heading of conclusions of law it will be treated as a factual finding.” Utzinger v. 

United States, 432 F.2d 485, 489 (6th Cir. 1970) (citation omitted). In light of the lead 

CID agent’s affidavit, discussed infra, these findings of fact are not clearly erroneous.

17 AE XIII at 64.
United States v. Betancourt, No. 201500400

10

execute three searches of the contents of the cell phone, including “over 

45,000 text messages”).

Modern cell phones are a door to a house with an infinite number of 

rooms, and those rooms can be filled with all of the most personal markers of 

our private lives. There are few places so desirous of protection from 

government intrusion. As a result, we find that the agents in this case were 

required to seek authorization to search based on probable cause before 

searching the contents of the appellant’s cell phone. However, in reviewing 

the scope of a search authorization that was reduced to writing, we are not 

constrained to the four corners of that writing. We may also rely on affidavits, 

attachments, and testimony to discern the intent of those seeking and 

granting the authorization and to establish the bounds of probable cause.18

This is similar to the approach taken by our sister court in United States 

v. Richards, No. 38346, 2016 CCA LEXIS 285, unpublished op. (A.F. Ct. 

Crim. App. 2 May 2016), rev. granted, 76 M.J. 45 (C.A.A.F. 2016).19 In

Richards, the Air Force Court of Criminal Appeals (AFCCA) rejected 

Richards’ argument that, because the search authorization only broadly 

listed his residence as subject to search and electronic media devices as the 

items to be seized, the investigators did not have authorization to search the 

contents of the seized devices. Id. at *44-45. The AFCCA noted that “the 

affidavit accompanying the written search authorization” and “[t]estimony 

from [investigative] agents at trial makes clear they were seeking 

authorization to search the devices, not just seize them.” Id. (internal 

quotation marks omitted).20

Here, the lead CID agent twice requested authority to search the 

appellant’s “personal Android . . . cellular telephone,” once in the body and 

once on the cover sheet (signed by the search authority on both the front and 

 

18 See United States v. Allen, 53 M.J. 402, 404, 407-08 (C.A.A.F. 2000) (noting 

that where a “warrant . . . authorized only a search of appellant’s residence” for child 

pornography, the information in the investigator’s affidavit nevertheless also 

justified a search of the digital contents of the “appellant’s computer equipment and 

associated materials”).

19 Richards is pending review by the Court of Appeals for the Armed Forces only 

as to whether the “search authorization was overbroad in failing to limit the dates of 

the communications being searched,” and as to whether the Court of Criminal 

Appeals panel that heard Richards’ case was “improperly constituted.”

20 See also United States v. Eppes, No. 38881, unpublished op., 2017 CCA LEXIS 

152, at *15 (A.F. Ct. Crim. App. 21 Feb 2017) (“[B]ased on the facts developed by the 

military judge, we are satisfied the intent of the warrant was to authorize the 

examination of computer hardware seized . . . .”).
United States v. Betancourt, No. 201500400

11

back page) of the “Affidavit In Support Of Application For Search 

Authorization.”21 The cover sheet cites the lead agent’s:

Belie[f] that there is now being concealed certain property, 

namely: . . . . Electronic media, communications, and data files 

pertaining to the kidnapping, assault, and sexual assault of 

[Ms. MR]; defrauding the U.S. Marine Corps; sale and use of 

illegal drugs; affiliation with an Outlaw Motorcycle Gang; and 

possessing a swastika tattoo on [the appellant’s] abdomen.22

The Area Commander then signed the search authorization prepared by 

the lead agent. Based on this, we find that the Area Commander intended to 

authorize the requested search of the contents of the appellant’s cell phone

once it was seized.

2. Was the CASS overbroad?

The appellant next argues that the search of his cell phone’s contents was 

overly broad because it neither “list[ed] with particularity the places to 

search on [the] cell phone,” nor contained “search protocols.”23 We review de 

novo a claim that a search “authorization was overly broad” such that it 

“result[ed] in a general search prohibited by the Fourth Amendment.” United 

States v. Eppes, 2017 CCA LEXIS 152, at *13 (A.F, Ct. Crim. App 21 Feb 

2017) (citing United States v. Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996)).24

“[W]e examine both the warrant and the supporting affidavit to determine 

whether the search identifies the crimes committed and the items which 

 

21 AE XIII at 51; 62-63.

22 Id. at 51.

23 Appellant’s Brief at 34. Even though limits to the location to be searched may 

be described as search “protocols,” the appellant also raises other concerns (e.g. “[t]o 

what degree the search and analysis is done by automation, computer software, or 

actual agents; [h]ow it will determine what types of files, or the files themselves, that 

fall within the ambit of the probable cause”) related to the methods used to conduct 

the search. Id. at 37. As a result, we address the question of over-breadth in the 

locations to be searched, separately from the issue of other search protocols.

24 At trial, the appellant did not directly allege that the search of the cell phone 

was overly broad because it failed to specifically list the places to be searched—the 

over-breadth claim at trial was that the search of the defense counsel spaces was 

overly broad. AE XVII at 8-9. However, in claiming that the CASS was “not based on 

probable cause,” trial defense counsel averred that there was no “reason to believe 

that other text messages or pictures” besides the messages between the appellant 

and Ms. MR the day of the alleged assault, “would be included on the phone.” Id. at 8. 

As this argument implies that a search of the phone’s pictures was overly broad, we 

find that the appellant did not forfeit the over-breadth argument as to the places to 

be searched on the cell phone.
United States v. Betancourt, No. 201500400

12

could be evidence of those crimes.” Id. at *15 (citing United States v. 

Martinelli, 454 F.3d 1300, 1308 (11th Cir. 2006)).

a. Failure to limit the search to particular places on the cell phone

The appellant asserts that the examination of the forensic copy of his cell 

phone—a copy that included “every text message, email, Facebook chat, 

instant message, picture, video, and web-browsing history” accessed on the 

appellant’s phone—exceeded the scope of the search authorization and was 

therefore overly broad in that it “exceeded the Government’s probable cause 

for [the appellant’s] suspected offenses.”

25

The appellant’s argument is supported, in part, by some civilian courts 

that have suggested the Fourth Amendment’s “particularity” language 

requires search warrants to specify how the government will determine

which locations in a cell phone may be searched for data.26 However, the 

Court of Appeals for the Armed Forces (CAAF) has not enforced a similar 

prophylactic requirement for all military search authorizations of electronic 

media. Instead, particularity in the search authorization must be determined 

on a case-by-case basis. 

In some rare and unique cases, probable cause could support a search of 

one’s entire cell phone. In these cases, the search authorization would need 

only list a description of the cell phone without any greater specificity. But in 

most cases, probable cause would permit a search of only some divisions of 

the phone’s storage, and the search authorization would need to be tailored 

accordingly. However, once again we may rely on the ancillary documents, 

affidavits, and attachments to determine where probable cause has placed 

natural limits on the scope of the authorization, limiting the search authority 

to those places on the phone that were reasonably implicated by probable 

cause. In other words, an authorization to search digital media like cell phone 

data, meets constitutional particularity requirements when the areas to be 

 

25 Appellant’s Brief at 40-41.

26 See In re The Search of Premises Known as: A Nextel Cellular Tel. with 

Belonging to & Seized from, 2014 U.S. Dist. LEXIS 88215, at *37, 41 (D. Kan. Jun.

26, 2014) (“[P]robable cause to believe drug trafficking communication may be found 

in [the phone’s] mail application will not support the search of the phone’s Angry 

Birds application.”). But see United States v. Burgess, 576 F.3d 1078, 1093-94 (10th 

Cir. 2009) (noting that “[i]t is unrealistic to expect a warrant to prospectively restrict 

the scope of a search” of files “by directory,” as “[o]ne would not . . . expect a warrant 

to . . . prospectively restrict the search to . . . ‘file folders labeled ‘Meth Lab’ or 

‘Customers’”).
United States v. Betancourt, No. 201500400

13

searched are “clearly related to the information constituting probable cause.” 

Allen, 53 M.J. at 408.27

Here, the affidavit listed the crimes about which the lead agent sought to 

discover evidence.28 The lead agent’s affidavit also stated that Ms. MR 

provided digital images to CID of the appellant wearing gang clothing and 

symbols, leading the agent to believe the cell phone would have evidence of 

the appellant’s gang involvement.29 The lead agent further averred that 

based on her training and experience she expected that “person(s) associated 

with the use and sale of illegal drugs typically negotiate prices, set up 

meetings to conduct buys, and exchange photographs and/or videos of 

products,” and that those in “gang affiliated activities communicate regularly 

via cellular telephone, exchange messages, photographs and videos.”30 The 

affidavit further provided that the appellant tested positive for cocaine in a 

command urinalysis and that Ms. MR reported having “seen [the appellant] 

possessing and using cocaine and crystal methamphetamine,” and “weighing 

and packaging the illegal drugs in preparation to sell them[.]”

31 This 

supported the lead agent’s assertion to the search authority that there was

“probable cause to believe evidence of his use, possession, manufacture or 

sale of illegal drugs [was] contained on his cellular telephone.”32

We find that the search authorization was not unconstitutionally 

overbroad. The affidavit’s description of potential drug, gang, sexual assault, 

and kidnapping charges served to focus the investigatory effort. The affidavit 

 

27 In Allen, the CAAF held that a warrant which stated in its supporting affidavit 

that a search for child pornography on Allen’s “digitally stored files on computer 

disks or hard drives,” without otherwise listing specific locations on the drives, was 

“not general or overbroad.” Id. at 407-08. Similarly, in Richards the AFCCA held that 

a broad search of digital copies of Richards’ electronic devices was “not 

constitutionally overbroad.” 2016 CCA LEXIS 285, at *49, 59. Even though the child 

victim’s statements to investigators did not say that Richards had “shared pictures or 

videos” in their online chats, a search of the pictures folder in Richards’ devices did 

not exceed the scope of the search authorization. Id. at *57, 60 (noting that although 

the “choice to first search the ‘pictures’ folder might not have been the most logical 

place to find . . . evidence . . . it was not an unreasonable place” to search).

28 AE XIII at 51 (“[T]he request for authorization to search and seize is made in 

connection with an investigation into the offense(s) of: Article 92, UCMJ—Failure to 

obey order or regulation, Article 120—Sexual Assault, Article 128—Assault, Article 

132—Frauds against the United States, and Article 134–Kidnapping.”).

29 Id. at 56, 62.

30 Id. at 52, 58-59.

31 Id. at 56, 61

32 Id. at 62.
United States v. Betancourt, No. 201500400

14

provided a substantial basis for probable cause to suspect that the appellant 

distributed illegal drugs and was a gang member. It then linked those 

behaviors to cell phone usage. Since the identified locations on the phone to

be viewed—e.g., contacts, photos, videos, and messages—were, per Allen, 

“related to the information constituting probable cause,” 53 M.J. at 408, the

authorization provided sufficient limits to deter government “rummaging”

through the phone in areas where evidence of a crime might not reasonably 

be located.33 As a result, the authorization was not general or overbroad.

Finally, even if the government exceeded the scope of its authorization 

when it created a forensic copy of the entire contents of the phone, including 

the analytical data, we find no prejudice under these circumstances in which 

the only evidence discovered on the phone was found in those areas included 

in the authorization’s probable cause, and the intrusion into other areas 

appeared—from the meager record provided—to be superficial.34

b. Failure to specify search protocols

For the first time, the appellant argues that the failure to specify search 

protocols makes the CASS unconstitutionally overbroad.35 Where a “different 

basis was raised in [the] suppression motion at trial” than on appeal, we 

review for “plain error.” United States v. Garcia, 57 M.J. 716, 718-19 (N-M. 

Ct. Crim. App. 2002) (citing United States v. Musa, 45 F.3d 922, 924 (5th Cir. 

1995)). As the appellant did not argue at trial that the images should be

suppressed for failure to follow particular search protocols, we review for 

plain error.

To show plain error, the appellant must persuade this court that: “‘(1) 

there was error; (2) the error was plain or obvious; and (3) the error 

materially prejudiced a substantial right of the accused.’” United States v.

Tunstall, 72 M.J. 191, 194 (C.A.A.F. 2013) (quoting United States v. 

Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)). The plain error doctrine is “to be 

used sparingly, solely in those circumstances in which a miscarriage of justice 

would otherwise result.” United States v. Causey, 37 M.J. 308, 311 (C.M.A. 

1993) (citations and internal quotation marks omitted).“‘Plain’ is synonymous 

 

33 Appellant’s Brief at 33 (citing Coolidge v. New Hampshire, 403 U.S. 443, 467 

(1971)).

34 See United States v. Blakeney, 942 F.2d 1001, 1026-27 (6th Cir. 1991) (holding 

that even where a portion of a warrant impermissibly used the overbroad, “generic 

term ‘jewelry,’” this did “not require suppression of all of the items seized pursuant to 

the warrant,” only of any “jewelry seized pursuant to the overbroad portion of the 

search warrant”—and since none of this jewelry was introduced into evidence, 

“Blakeney was not prejudiced by the defect in the warrant”).

35 Appellant’s Brief at 37.
United States v. Betancourt, No. 201500400

15

with ‘clear’ or, equivalently ‘obvious[,]’” and any plain error “must be so 

‘under current law.’” United States v. DeMerse, 37 M.J. 488, 491 (C.M.A. 

1993) (first alteration in original) (citation omitted).

While the use of search protocols may be valuable in guiding 

investigators, protecting suspects, and educating courts, we are not aware of 

any authority from our superior court requiring the use of such search 

protocols in all cases involving the search of electronic media. In light of 

judicial divergence as to their necessity,36 we thus decline to find the absence 

of search protocols in this case to be plain or obvious error. We will not assign 

to the military judge a responsibility to foresee requirements that we have 

yet to anticipate. 

B. Unlawful command influence

“Congress and this court are concerned not only with eliminating actual 

unlawful command influence, but also with ‘eliminating even the appearance 

of unlawful command influence at courts-martial.’” United States v. Lewis, 63 

M.J. 405, 415 (C.A.A.F. 2006) (quoting United States v. Rosser, 6 M.J. 267, 

271 (C.M.A. 1979)).

The defense has the burden of raising the issue of actual or apparent 

unlawful command influence. United States v. Reed, 65 M.J. 487, 488 

(C.A.A.F. 2008) (citing United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 

1999)). On appeal the appellant must present “some evidence” of unlawful 

command influence, showing (1) “facts which, if true, constitute unlawful 

command influence,” (2) “the proceedings were unfair,” and (3) “unlawful 

command influence was the cause of the unfairness.” Biagase, 50 M.J. at 150 

(citations omitted).

“The test for actual unlawful command influence is, figuratively 

speaking, ‘whether the convening authority has been brought into the 

deliberation room.’” United States v. Allen, 31 M.J. 572, 590 (N-M.C.M.R. 

1990) (quoting United States v. Grady, 15 M.J. 275 (C.M.A. 1982)).

The test for apparent unlawful command influence is objective. “We focus 

upon the perception of fairness in the military justice system as viewed 

through the eyes of a reasonable member of the public.” Lewis, 63 M.J. at 

415. An appearance of unlawful command influence arises “where an 

objective, disinterested observer, fully informed of all the facts and 

 

36 Compare Burgess, 576 F.3d at 1093-94 (criticizing imposition of “filename or 

extension”—i.e. file type—protocols) with United States v. Comprehensive Drug 

Testing, Inc., 579 F.3d 989, 1006 (9th Cir. 2009) (en banc) (“The government’s search 

protocol must be designed to uncover only the information for which it has probable 

cause, and only that information may be examined by the case agents.”).
United States v. Betancourt, No. 201500400

16

circumstances, would harbor a significant doubt about the fairness of the 

proceeding.” Id.

Once some evidence has raised the specter of unlawful command 

influence, “the government bears the burden of proving beyond a reasonable 

doubt that either the predicate facts proffered by the appellant do not exist, 

or the facts as presented do not constitute unlawful command influence.’”

United States v. Boyce, __ M.J. __, No. 16-0546, 2017 CAAF LEXIS 494 at *16

(C.A.A.F. May 22, 2017) (citing United States v. Salyer, 72 M.J. 72 M.J. 415, 

423 (C.A.A.F. 2013)). If the government cannot meet this initial burden, then

the government must prove beyond a reasonable doubt “that the unlawful 

command influence did not place an intolerable strain upon the public’s 

perception of the military justice system and that an objective, disinterested 

observer, fully informed of all the facts and circumstances, would [not] harbor 

a significant doubt about the fairness of the proceeding.” Id. at *16-17

(citations and internal quotation marks omitted) (alteration in original).

‘“Where the issue of unlawful command influence is litigated on the 

record, the military judge’s findings of fact are reviewed under a clearlyerroneous standard, but the question of command influence flowing from 

those facts is a question of law that [the] Court reviews de novo.”’ Reed, 65 

M.J. at 488 (C.A.A.F. 2008) (quoting United States v. Wallace, 39 M.J. 284, 

286 (C.M.A. 1994)). 

At his court-martial, the appellant made a timely motion to dismiss the 

charges and specifications on the grounds of unlawful command influence. 

The military judge determined that the defense presented no evidence of 

actual unlawful command influence, concluding: “The actions of the CID 

investigators, trial counsel and area commander in this case were not an 

effort to influence the outcome of the [appellant’s] court-martial.”

37

However, the military judge did find some evidence supporting apparent 

unlawful command influence, namely that the search for the phone extended 

into the offices of defense counsel with no involvement in the appellant’s case.

Having shifted the burden, the military judge then found the government 

met its burden and denied the defense motion.

The appellant now asserts that the appearance of unlawful command 

influence directly affected the findings and sentence in that “the Government 

still used evidence seized from [the appellant’s] phone at trial,”

38 and the 

 

37 AE CLXXII at 14. Of note, the commander who authorized the search, the 22 

Area, Area Commander, was neither the convening authority nor the appellant’s 

commanding officer.

38 Appellant’s Brief at 55.
United States v. Betancourt, No. 201500400

17

search led to 1stLt I’s and 1stLt F’s disqualification as defense counsel and 

an order for them to testify.

We agree that the appellant has raised some evidence of apparent 

unlawful command influence. Nonetheless, we are convinced beyond 

reasonable doubt that an objective, disinterested observer, fully informed of 

all the facts and circumstances, would not harbor a significant doubt as to the 

fairness of the appellant’s court-martial, to include the findings and the 

adjudged sentence.

First, the government took significant corrective action after the search to 

limit disclosure of any information obtained by CID agents during the search. 

This included removing the STC, the trial counsel, and the investigators from 

further involvement with the investigation or court-martial. Newly assigned

trial counsel and investigators were not part of the Legal Support Services 

Team but from the separate Complex Trial Team. The video recording of the 

search was secured by order until a special investigating officer was 

appointed to review it for potential leakage of privileged information. 

Subsequently, the recording was sealed by the military judge who reviewed it 

in camera.

Second, as discussed supra, the phone and its contents were seized 

pursuant to a valid search authorization. Therefore its contents, while both 

helpful and harmful to the appellant’s cause, did not unfairly affect the 

findings or sentence. Likewise, 1stLt I and 1stLt F were disqualified as 

defense counsel and ordered to testify as a result of their possession of the 

phone, not as a result of the manner in which the phone was ultimately 

acquired by the government. Had the government obtained the phone by 

more ordinary means, 1stLt I and 1stLt F may still have been necessary 

witnesses as to the chain of custody of the phone and the phone case. 

Similarly, the eventual conflict of interest between 1stLt I, 1stLt F, and the 

appellant was not born of the search, but of defense counsels’ possession of 

the phone preceding the search. In that regard, the search was immaterial to 

the matter of whether to disqualify either defense counsel.

Finally, the best indicator of the lack of apparent unlawful command 

influence is the fact that the appellant was wholly or partially acquitted of 

many of the most serious offenses related to the attack on Ms. MR. To the 

extent the text messages between the appellant and Ms. MR weighed upon 

the members, they did not prevent them from finding the appellant not guilty 

of assaulting Ms. MR with a dangerous weapon, assaulting her with an 

intent or a means likely to cause grievous bodily harm, and communicating 

threats to her and her daughter.
United States v. Betancourt, No. 201500400

18

For these reasons, we are convinced beyond reasonable doubt that the 

appellant’s trial was untainted by the appearance of unlawful command 

influence.

C. Prosecutorial misconduct

Prosecutorial misconduct occurs when a prosecutor “‘oversteps the bounds 

of propriety and fairness which should characterize the conduct of such an 

officer in the prosecution of a criminal offense.’” United States v. Fletcher, 62 

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

When an appellant objects to alleged prosecutorial misconduct at trial, we 

review for prejudicial error. United States v. Hornback, 73 M.J. 155, 159 

(C.A.A.F. 2014). We will accept the military judge’s findings of fact unless the 

findings are clearly erroneous. 

Here, the appellant made a timely motion alleging that the actions or 

inaction of the STC related to the search of the defense offices amounted to 

prosecutorial misconduct. In denying the appellant’s motion, the military 

judge found:

Although [the STC] was aware of the Air Force JAG 

memorandum concerning searches of defense counsel offices 

and other procedures usually put in place for such types of 

searches, he did not think that they applied to this situation 

because the evidence being sought was not a document and the 

search would not require the review of any documents in an 

attorney’s office.39

 The appellant asserts that the STC40 committed prosecutorial 

misconduct when he supervised the search of defense offices without first 

implementing safeguards to minimize exposure to attorney work product and 

 

39 AE CLXXVII at 7-8.

40 In his brief, the appellant alleges that “the Government committed 

prosecutorial misconduct when it executed an overly-expansive search of the defense 

spaces[.]” Appellant’s Brief at 59. Under the facts of this case, we decline to paint all 

possible government actors as de facto prosecutors, and instead, focus our analysis on 

the actions or inactions of the STC, in line with the allegation as litigated by the trial 

defense counsel, analyzed by the military judge, and focused on during oral 

argument.
United States v. Betancourt, No. 201500400

19

privileged communications as discussed in United States v. Calhoun, 49 M.J. 

485 (C.A.A.F. 1998) and utilized in other jurisdictions.

41

As highlighted by the appellant, these precautions include: consideration

for obtaining the desired information from other sources or through the use of 

subpoena; conducting the search pursuant to a valid warrant issued by a 

military magistrate or a search authorization directed by a commander not 

serving as the convening authority; issuing warrants or authorizations 

tailored as narrowly as possible; ensuring that only independent personnel 

are involved in searching the counsel’s office and reviewing the materials 

taken, and that those personnel are provided instructions designed to 

minimize the intrusion into privileged materials; providing copies of seized 

records to the subject counsel so that disruption of the counsel’s practice is 

minimized and the counsel is afforded an opportunity to participate in the 

process of disputing determinations of privilege; and directing personnel 

conducting the search not to disclose information about the search to 

prosecutors or investigators until instructed to do so by proper authority.

42

This non-exhaustive list of safeguards utilized by U.S. Attorney’s offices 

and, in part, tacitly endorsed by the CAAF in Calhoun, provides an excellent 

framework for future searches of opposing counsel offices–a rare event

inherently fraught with potential for error. These or similar procedures may 

also assist in satisfying the requirements of the Navy Judge Advocate 

General Instruction 5803.1E, Professional Conduct of Attorneys Practicing 

under the Cognizance and Supervision of the Judge Advocate General (JAG 

PR), Enclosure (1), Rule 3.8b (20 Jan 2015), which provides that:

[T]rial counsel and other government counsel shall exercise

reasonable care to avoid intercepting, seizing, copying, viewing, 

or listening to communications protected by the attorney-client 

privilege during investigation of a suspected offense 

(particularly when conducting government-sanctioned searches 

where attorney-client privileged communications may be 

present), as well as in the preparation or prosecution of a case.

However, we decline to hold that these specific procedures rose to the 

level of a legal norm or standard at the time of the search of the defense 

spaces. As a result, we do not find the failure to utilize these or similar 

 

41 The appellant relies here on Chapter Nine of the U.S. Attorney’s Manual. 

Appellant’s Brief at 58-60. 

42 Calhoun, 49 M.J. at 488; United States Department of Justice, U.S. Attorney’s 

Manual, Title 9-13.420, Searches of Premises of Subject Attorneys, 

https://www.justice.gov/usam/usam-9-13000-obtaining-evidence#9-13.420, (last 

visited 28 May 2017).
United States v. Betancourt, No. 201500400

20

precautions resulted in prosecutorial misconduct. Still, based on the 

cautionary tale of this case, prosecutors should ensure that specially tailored

safeguards, like those used in Calhoun, are prophylactically applied in all 

future cases in which they are participants in the planning and execution of a 

search of opposing counsel’s spaces.

Even if the failure to apply these safeguards before the search amounted 

to misconduct on the part of the STC, we find no prejudice.

In assessing for prejudice, we look at the cumulative impact of any 

misconduct on the appellant’s substantial rights and the fairness of his trial 

by balancing “three factors: (1) the severity of the misconduct, (2) the 

measures adopted to cure the misconduct, and (3) the weight of the evidence 

supporting the conviction.” Fletcher, 62 M.J. at 184. Prosecutorial misconduct 

requires reversal when the trial counsel’s behavior, taken as a whole, was “so 

damaging that we cannot be confident that the members convicted the 

appellant on the basis of the evidence alone.” Id.

1. Severity of the misconduct

While the STC maintained supervisory responsibility for the trial counsel 

in his Legal Services Support Team, he was not specifically detailed to the 

appellant’s case. Despite this, he was regularly involved in discussing case 

matters with the detailed trial counsel, and once the possibility of the search 

of the defense offices became more likely, he also engaged his counterpart, 

the senior defense counsel, in several discussions designed to “reach mutually 

agreeable terms on relinquishing [the phone] to the government.”43

After compromise failed, the STC received concurrence from his 

supervisory attorney and the LSSS OIC that a CASS should be executed. He 

then contacted CID and arranged for them to search the spaces as soon as 

defense counsel were present. He also reviewed the CASS and affidavit for 

legal sufficiency.

When CID arrived at the defense offices, the STC briefed them on the 

conduct of the search: “I told them that they should execute their search 

according to the highest standards of their protocols for conducting a search. I 

told them that the conduct of this search would be highly scrutinized. I 

ensured they had a video recorder to document the search itself.”44 He did not 

provide the searchers any additional specific protocol on conducting the 

search. He provided the searchers no guidance in writing. 

 

43 AE XIV at 59.

44 Id. at 61.
United States v. Betancourt, No. 201500400

21

During the search, the STC entered the defense offices three times; once 

to inform the senior defense counsel of the search, once to determine whether 

personnel would be permitted to leave the spaces during the search, and once 

to carry out an administrative function unrelated to the search. The STC did 

not supervise the CID agents’ conduct of the search, observe their search 

techniques, or provide advice to the agents during the course of the search.

Afterwards, the STC was briefed by the CID agents and was informed 

that the agents had seized a phone, a case, a charger, and a spare battery. 

The agents did not disclose any other information to him. The STC asserts 

that he instructed the agents to secure the evidence and the video recording 

of the search from examination and to not discuss anything they observed 

until they were provided further guidance. 

This was the sum total of the STC’s involvement in the search of the 

defense offices. While the search of the other defense counsels’ offices–those 

with no direct connection to the appellant–raises the specter of unlawful 

command influence and demands greater scrutiny of each affected case, the 

STC’s involvement in those parts of the search were still tangential. 

Additionally, while his failure to enforce more rigorous taint procedures 

before the search were not best practices, this did not rise to the level of 

severe misconduct under the circumstances of this case.

2. Measures adopted to cure the misconduct

Furthermore, any inaction on the part of the STC prior to the search were 

offset by the robust measures taken to preserve any potential leakage of 

privileged information undertaken immediately after the search ended. 

As discussed above, the searchers were ordered to secure the video 

recording and not discuss the search until directed to do so. The LSSS OIC 

directed a taint review of the video recording. The CID agents assigned, 

including the lead agent, were removed from the case. The STC was removed 

from his position, and the trial counsel was removed from the appellant’s 

case. Two new trial counsel and new CID investigators from different chains 

of command were assigned to the case.

3. Weight of the evidence supporting the conviction

Finally, after weighing the evidence supporting the appellant’s conviction 

for aggravated sexual contact and assault consummated by battery, including 

the cell phone tower analysis placing the appellant in the area of Ms. MR’s 

home, the medical evidence of Ms. MR’s vulvar hematoma, the bruising on 

her neck consistent with strangling, and the contents of the 9-1-1 phone call, 

and recognizing that we did not see or hear the witnesses, this court is 

convinced of the appellant’s guilt beyond a reasonable doubt.
United States v. Betancourt, No. 201500400

22

For these reasons, even were we to determine that the STC’s actions or 

inaction related to the search rose to the level of misconduct, we find no 

prejudicial error.

D. Disqualification of defense counsel

The appellant argues he was denied his Sixth Amendment right to 

counsel when the military judge disqualified 1stLt I and 1stLt F from further 

participation as the appellant’s defense counsel.

Prior to court-martial assembly, the government moved to disqualify both 

defense counsel asserting that they were potential witnesses at trial based on 

their possession of the appellant’s cell phone during the month preceding the 

search of the defense offices. The government alleged that counsel’s 

testimony was necessary to account for the deletion of text messages and 

gang member contact information from the phone—evidence of the 

appellant’s guilty mind—and to discount sources of cocaine residue on the 

phone’s case other than the appellant. This raised both a conflict of interest 

issue and a concern over defense counsel operating as unsworn witnesses. 

To ameliorate these concerns, the military judge sought from the 

appellant a waiver of any conflict, identifying the conflict as the foreclosure of 

possible defenses by the appellant should he choose to implicate his counsel 

in deleting potentially incriminating matters from his phone or in crosscontaminating his phone with cocaine from another source inside 1stLt I’s or 

1stLt F’s desk drawers. After speaking with conflict-free counsel, the 

appellant asserted that he understood the nature of the conflict and waived 

the right to conflict-free counsel.45

The military judge also encouraged the parties to stipulate to defense 

counsel’s testimony regarding their possession of the appellant’s phone, 

resolving a possible violation of JAG PR Rule 3.7 that generally prohibits 

counsel from appearing as a witness on a contested matter.

After the parties failed to reach a stipulation, the military judge 

disqualified counsel, finding that defense counsel’s reluctance to stipulate 

may have evidenced a desire to limit their own exposure under the JAG PR 

rules. If so, then the conflict of interest “likely ran deeper than [the appellant] 

understood and knowingly waived.”46 She also found that 1stLt I and 1stLt F 

 

45 We highlight United States v. Hale, ___ M.J. ___, No. 201600015, 2017 CCA 

LEXIS 364, at *42-43 (N-M. Ct. Crim. App. 31 May 2017), demonstrating the 

difficulties that may arise—unlike here—when the military judge for whatever 

reason is unable to identify possible conflicts of interest, inquire into the nature of 

those conflicts, and resolve them, if necessary, through waiver or disqualification.

46 AE CLXXVIII at 18.
United States v. Betancourt, No. 201500400

23

would be the only sources of information concerning the handling of the 

phone and would thus be necessary witnesses on a potentially contested issue 

at trial. 

The appellant was detailed two new counsel, a Marine Corps major and a

captain, who represented the appellant during the rest of the motions 

hearings, through his pleas, on the merits, and during sentencing 

proceedings. During the contested portion of trial, 1stLt I and 1stLt F were 

called to testify, denied deleting any text messages from the phone, and 

denied placing the phone in a location in which it might come into contact 

with cocaine. This testimony, when taken in concert with the lab’s 

identification of cocaine residue on the phone’s case, corroborated Ms. MR’s

claim that the appellant regularly kept cocaine hidden between his phone 

and its case. 1stLt I’s and 1stLt F’s testimony left unresolved the matter of 

the missing text messages. 

The Sixth Amendment to the Constitution guarantees that “in all 

criminal prosecutions, the accused shall enjoy the right . . . to have the 

Assistance of Counsel for his defence.” Once an attorney-client relationship

has been established, it may be severed only for “good cause” unless the 

relationship has been terminated with the consent of the member. RULE FOR 

COURT-MARTIAL 505(d)(2)(B), MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2012 ed.); United States v. Spriggs, 52 M.J. 235, 240 (C.A.A.F. 2000).

Good cause may exist when a conflict of interest places in doubt the 

ability of defense counsel to be an effective advocate. “[W]here a 

constitutional right to counsel exists . . . there is a correlative right to 

representation that is free from conflicts of interest.” United States v. Lee, 66 

M.J. 387, 388 (C.A.A.F. 2008) (quoting Wood v. Georgia, 450 U.S. 261, 271 

(1981)). An accused may waive this right to conflict-free counsel, but this

must be done voluntarily and with “sufficient awareness of the relevant 

circumstances and likely consequences” as to be knowing and intelligent. Id. 

(quoting Brady v. United States, 397 U.S. 742, 748 (1970) (internal quotation

marks omitted)). The military judge must be allowed substantial latitude in 

refusing to accept an appellant’s waiver of a conflict of interest “not only in 

those rare cases where an actual conflict may be demonstrated before trial, 

but in the more common cases where a potential for conflict exists which may 

or may not burgeon into an actual conflict as the trial progresses.” Wheat v. 

United States, 486 U.S. 153, 163 (1988).

Good cause may also exist when the conflict creates the appearance of 

unfairness to observers or threatens to undermine ethical standards. Id. at 

160. Both a potential ethical conflict and the appearance of unfairness may

arise when a counsel becomes a witness at court-martial.
United States v. Betancourt, No. 201500400

24

“An attorney acts as an unsworn witness when his relationship to his 

client results in his having first-hand knowledge of the events presented at 

trial.” United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993). “His role as 

advocate may give his client an unfair advantage, because the attorney can 

subtly impart to the jury his first-hand knowledge of the events without 

having to swear an oath or be subject to cross examination.” Id.

To that end, JAG PR Rule 3.7 prohibits counsel from acting as an 

advocate at a trial in which he or she is likely to be a necessary witness, 

unless: (1) the testimony relates to an uncontested issue; (2) the testimony 

relates to the nature and quality of the legal services rendered; or (3) 

disqualification of counsel would work substantial hardship on the client.

We review a military judge’s decision to disqualify counsel for an abuse of 

discretion. United States v. Strother, 60 M.J. 476, 478 (C.A.A.F. 2005). The

military judge will be overturned only if the findings of fact are clearly 

erroneous or the decision is influenced by an erroneous interpretation of the 

law. United States v. Rhoades, 65 M.J. 393, 397 (C.A.A.F. 2008) (citing United 

States v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006)).

We agree with the military judge that there existed good cause to sever 

the attorney-client relationship and disqualify 1stLt I and 1stLt F as defense 

counsel. 

First, an actual conflict of interest47 operated between the interests of the 

appellant and his counsel as to the contents and whereabouts of the 

appellant’s phone. 1stLt I and 1stLt F possessed the appellant’s phone from 

24 March 2014 to 2 May 2014. During that time, they powered-on and 

perused the phone’s contents, created and deleted content, connected the 

phone to their government computers in order to transfer data, removed the 

phone’s case, and discussed turning the phone over to the appellant’s thengirlfriend, Ms. HK. This placed 1stLt I and 1stLt F in the position of 

defending themselves from accusations that they intentionally or negligently 

destroyed evidence or were the source—through cross-contamination or other 

means—of the damning cocaine residue evidence. Fear of violating ethical 

rules also appeared to motivate 1stLt F’s attempt to return the phone to Ms. 

HK (via the appellant’s SNCOIC), demonstrating that his own professional

concerns had begun to creep into his tactical decision-making. These conflicts 

ran so deep that the military judge was well within her discretion to refuse to 

 

47 See Hale, 2017 CCA LEXIS 364, at *23 (“A conflict of interest is actual, as 

opposed to potential, when, during the course of the representation, ‘the attorney’s 

and defendant’s interests diverge with respect to a material factual or legal issue or 

to a course of action.’”) (quoting United States v. Perez, 325 F.3d 115, 125 (2d Cir. 

2003)).
United States v. Betancourt, No. 201500400

25

accept the appellant’s waiver because it had not been knowingly and 

intelligently made.

Second, 1stLt I and 1stLt F became necessary witnesses to the trial, each 

possessing first-hand knowledge regarding their personal possession of the 

phone. As the military judge noted, 

[T]he members would be able to determine that [1stLt I and 

1stLt F] were the only sources of information concerning the 

chain of custody and the care and handling of the phone and 

case. The same attorneys would then be arguing to the 

members concerning this testimony, leading the members to 

place greater weight on the defense arguments because the 

counsel clearly had first-hand knowledge of these events.48

Such an advantage to the defense would create an appearance of 

unfairness to an outside observer and seem to violate the prohibition of JAG 

PR Rule 3.7. As a result, it was appropriate to sever the attorney-client 

relationship when alternatives to the defense counsel’s testimony were no 

longer viable.

For these reasons, we find that the military judge did not abuse her 

discretion when disqualifying 1stLt I and 1stLt F as appellant’s defense 

counsel.

E. Admission of evidence under MIL. R. EVID. 404(b)

While “[e]vidence of a crime, wrong, or other act is not admissible to prove 

a person’s character in order to show that on a particular occasion the person 

acted in accordance with the character[,]” it may be admissible to prove, 

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident.” MIL. R. EVID. 404(b)(1) and (2), SUPPLEMENT 

TO MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Evidence of 

this type must be offered for a proper purpose other than to demonstrate the 

propensity of an accused to commit the crimes charged. United States v. 

Acton, 38 M.J. 330, 333 (C.M.A. 1993) (quoting United States v. Castillo, 29 

M.J. 145, 150 (C.M.A. 1989)).

In order to admit evidence of uncharged misconduct under MIL. R. EVID.

404(b): (1) the evidence must reasonably support a finding that the accused 

committed the uncharged misconduct; (2) a material fact in issue must be 

made more or less probable by the evidence; and (3) the danger of unfair 

prejudice must not substantially outweigh the probative value of the 

evidence. United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).

 

48 AE CLXXVIII at 18.
United States v. Betancourt, No. 201500400

26

We review a military judge’s evidentiary rulings for an abuse of 

discretion, that is, whether the “challenged action [is] arbitrary, fanciful, 

clearly unreasonable, or clearly erroneous.” United States v. Solomon, 72 M.J. 

176, 179 (C.A.A.F. 2013) (citation and internal quotation marks omitted).

Prior to trial, the government sought a preliminary ruling on the 

admissibility of various items of evidence under MIL. R. EVID. 404(b)(1) and 

(2). Specifically, trial counsel sought to introduce the testimony of Ms. MR,

relating her knowledge of the various criminal acts for which the appellant 

had already pleaded guilty, that is: his participation in the criminal 

motorcycle gang; his possession of cocaine, methamphetamines, and the tools 

needed to distribute those drugs to others; his use of cocaine and steroids; his 

fraudulent receipt of BAH; and his swastika tattoo. They also sought to 

introduce several photographs of the appellant that were also corroborative of 

his participation in the criminal motorcycle gang and of his possession of 

drugs. 

The military judge issued a written ruling applying the three-part test for 

admissibility of evidence of uncharged misconduct offered under MIL. R.

EVID. 404(b), established in Reynolds, and determined that evidence of the 

appellant’s alleged steroid use and additional pictures of his swastika tattoo 

were inadmissible either because the evidence failed to support the 

underlying act (the steroid use) or because the probative value was 

substantially outweighed by the danger of unfair prejudice (the swastika 

tattoo). The military judge did permit the government to introduce the rest of 

Ms. MR’s testimony and the photographs to demonstrate a possible motive 

for assaulting Ms. MR—“to protect [the appellant] and the members of the 

[gang].”49 The photographs were admitted as Prosecution Exhibits 14, 15 and 

16.

Both before the introduction of evidence50 and again before 

deliberations,51 the military judge instructed the members that evidence of 

other crimes or acts was not admissible to show that the appellant was a bad 

person, but instead was being introduced by the government to show the 

motivation of the appellant to commit the offenses alleged. 

The appellant now asserts that the military judge abused her discretion 

by admitting Prosecution Exhibits 14, 15, and 16 (the photographs) into 

 

49 AE CXXXV at 4.

50 Record at 1104.

51 Id. at 1655.
United States v. Betancourt, No. 201500400

27

evidence and by failing to articulate the application of the Wright factors52 in 

evaluating the third Reynolds prong. We disagree.

Here, the military judge admitted the prosecution exhibits only after 

applying the Reynolds test, finding the evidence legally relevant, and 

determining its probative value was not substantially outweighed by the 

danger of unfair prejudice.53 Because the military judge did not articulate any 

balancing of the Wright factors on the record, we will accord her decision less 

deference than we would otherwise. United States v. Berry, 61 M.J. 91, 96

(C.A.A.F. 2005).

54 Regardless, we find that the military judge did not abuse

her discretion in admitting the evidence as proof of the appellant’s motive, 

and further conclude that the military judge appropriately directed the 

members to limit their consideration of the evidence to its proper uses. 

F. Errors in the court-martial order

As identified by the appellant and conceded by the government, the 

promulgating order fails to reflect that the military judge dismissed 

Specification 1 of the Third Additional Charge IV as multiplicious with 

Specification 2 of the Third Additional Charge II after the members found the 

appellant not guilty of the greater offense under the charge but guilty of the 

lesser included offense of assault consummated by battery. The appellant 

does not assert, and we do not find, any prejudice resulting from this error. 

Nevertheless, the appellant is entitled to have the court-martial order

accurately reflect the results of the proceedings. United States v. Crumpley, 

49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order corrective action 

in our decretal paragraph.

 

52 The Wright factors as first set out in United States v. Wright, 53 M.J. 476 

(C.A.A.F. 2000) and subsequently articulated in United States v. Berry, 61 M.J. 91, 

95 (C.A.A.F. 2005) are: “the strength of the proof of the prior act; the probative 

weight of the evidence; the potential to present less prejudicial evidence; the possible 

distraction of the fact-finder; the time needed to prove the prior conduct; the 

temporal proximity of the prior event; the frequency of the acts; the presence of any 

intervening circumstances; and the relationship between the parties.”

53 AE LXXI.

54 We also find the Wright factors to be largely inapt when applied to this case 

involving the appellant’s possible motives to commit the alleged crime as analyzed 

solely under MIL. R. EVID. 404(b).
United States v. Betancourt, No. 201500400

28

III. CONCLUSION

The findings and the sentence are affirmed. The supplemental courtmartial order shall reflect that Specification 1 of the Third Additional Charge 

IV was dismissed.

Senior Judge CAMPBELL and Judge HUTCHISON concur.

 

 For the Court 

 R.H. TROIDL 

 Clerk of Court