United States v. Jimenez ( 2018 )


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  •               U NITED S TATES AIR F ORCE
    C OURT OF C RIMINAL APPEALS
    ________________________
    No. ACM 39200
    ________________________
    UNITED STATES
    Appellee
    v.
    Steven JIMENEZ
    Senior Airman (E-4), U.S. Air Force, Appellant
    ________________________
    Appeal from the United States Air Force Trial Judiciary
    Decided 20 June 2018
    ________________________
    Military Judge: Brendon K. Tukey.
    Approved sentence: Dishonorable discharge, confinement for 10 years,
    forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
    judged 10 May 2016 by GCM convened at Malmstrom Air Force Base,
    Montana.
    For Appellant: Major Patricia Encarnación Miranda, USAF.
    For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary
    Ellen Payne, USAF; Major J. Ronald Steelman III, USAF.
    Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
    Senior Judge JOHNSON delivered the opinion of the court, in which
    Judge MINK and Judge DENNIS joined.
    ________________________
    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
    ________________________
    JOHNSON, Senior Judge:
    A military judge found Appellant guilty, consistent with his pleas and pur-
    suant to a pretrial agreement, of two specifications of willfully disobeying a
    superior commissioned officer, one specification of wrongfully using marijuana
    United States v. Jimenez, No. ACM 39200
    on divers occasions, one specification of wrongfully distributing marijuana on
    divers occasions, one specification of larceny of nonmilitary property of a value
    of less than $500.00 on divers occasions, two specifications of aggravated as-
    sault, and nine specifications of assault consummated by battery, in violation
    of Articles 90, 112a, 121, and 128, Uniform Code of Military Justice (UCMJ),
    
    10 U.S.C. §§ 890
    , 912a, 921, 928. 1 A general court-martial composed of officer
    and enlisted members sentenced Appellant to a dishonorable discharge, con-
    finement for ten years, forfeiture of all pay and allowances, and reduction to
    the grade of E-1. The military judge granted Appellant 200 days of confinement
    credit against his sentence for illegal pretrial punishment. The convening au-
    thority approved the adjudged sentence.
    Appellant raises seven issues on appeal: (1) whether he is entitled to relief
    due to a presumptively unreasonable post-trial delay; (2) whether the termi-
    nation of Appellant’s pay during his pretrial confinement constituted illegal
    pretrial punishment in violation of Article 13, UCMJ, 
    10 U.S.C. § 813
    ; (3)
    whether the military judge erred in permitting an expert witness to testify that
    Appellant demonstrated a pattern of intimate partner violence; (4) whether
    Appellant’s sentence to confinement is inappropriately severe; (5) whether Ap-
    pellant’s trial defense counsel was ineffective for failing to make a specific sen-
    tence recommendation; 2 (6) whether Appellant is entitled to additional confine-
    ment credit due to the conditions of his pretrial confinement; and (7) whether
    Appellant is entitled to confinement credit for the conditions of his post-trial
    confinement. 3 We find no relief is warranted and affirm the findings and sen-
    tence.
    I. BACKGROUND
    Appellant engaged in a pattern of physical violence against a series of ro-
    mantic partners. Appellant met Staff Sergeant (SSgt) EP4 in technical school
    1 The military judge’s findings with respect to four of the Article 128 specifications
    involved findings by exceptions and substitutions.
    2We find trial defense counsel’s performance in this respect did not fall measurably
    below that expected of lawyers, and that absent the “error” there was no reasonable
    probability of a more favorable result for Appellant. See United States v. Gooch, 
    69 M.J. 353
    , 362 (C.A.A.F. 2009). We further find this issue neither requires further dis-
    cussion nor warrants relief. See United States v. Matias, 
    25 M.J. 356
    , 361 (C.M.A.
    1987).
    3Appellant personally asserts issues (4) through (7) pursuant to United States v.
    Grostefon, 
    12 M.J. 431
     (C.M.A. 1982).
    4SSgt EP was an Airman First Class or Senior Airman when Appellant committed the
    offenses against her described below.
    2
    United States v. Jimenez, No. ACM 39200
    in late 2010. They attempted to maintain a long-distance relationship while
    Appellant was stationed at Malmstrom Air Force Base (AFB), Montana, and
    SSgt EP was stationed in Florida. In December 2011 or January 2012, Appel-
    lant pushed SSgt EP on the chest during an argument in front of her parents’
    house in Florida, causing SSgt EP to strike her head on the window of her car.
    On another occasion, during a visit with Appellant’s family members in Cali-
    fornia, Appellant again pushed SSgt EP on the chest hard enough to knock her
    off her feet.
    Between January 2013 and July 2013, Appellant developed an intimate re-
    lationship with TL, who like Appellant lived in Great Falls, Montana. In June
    or July 2013, Appellant became angry at TL as they left a party. When TL
    drove them home, Appellant grabbed her wrist hard enough to make her cry
    and refused to let go until after they arrived. Later that evening at Appellant’s
    apartment, he grabbed TL by the hair, pushed her on her chest, and placed his
    hand on her throat and squeezed her neck lightly, all without her consent.
    Their relationship ended shortly thereafter.
    On 3 November 2013, Appellant visited SSgt EP at her apartment in Flor-
    ida. During another argument, Appellant held SSgt EP on the floor and choked
    her by squeezing her neck with both hands. After Appellant let go, SSgt EP
    attempted to retreat upstairs and Appellant pursued her. SSgt EP sprayed Ap-
    pellant, and accidentally herself, with pepper spray, left the apartment, and
    called 911. Civilian police responded, but SSgt EP did not tell them she had
    been choked, and Appellant was not arrested or charged at the time.
    In September 2014, Appellant began a relationship with AH, who also lived
    in Great Falls. Between May 2014 and January 2015, overlapping his relation-
    ship with AH, Appellant used marijuana on multiple occasions with several
    other Airmen and with AH. In addition, on multiple occasions Appellant pro-
    vided marijuana to several Airmen who were subsequently administratively
    discharged from the Air Force for drug abuse.
    On 5 January 2015, during an argument in Appellant’s apartment, Appel-
    lant grabbed AH and pushed or threw her into the bathroom vanity, causing
    her to fall to the floor. On 23 January 2015, Appellant pushed AH on the shoul-
    der during another argument. On the night of 29–30 January 2015, after yet
    another argument, AH came to Appellant’s apartment to remove her belong-
    ings. During the ensuing confrontation Appellant struck AH in the face,
    grabbed and pushed her, held her on the ground, pushed her face into a sofa,
    and blew blood and mucus onto her from his nose.
    AH reported Appellant’s conduct to the Air Force Office of Special Investi-
    gations (AFOSI) on 30 January 2015. That same day, Appellant’s squadron
    3
    United States v. Jimenez, No. ACM 39200
    section commander, First Lieutenant JT, issued him an order to have no con-
    tact with AH. Despite receiving, understanding, and acknowledging the order,
    Appellant violated the order on an ongoing basis by regularly communicating
    with AH by telephone, social media, and texts, and by continuing to meet her
    in person. On 24 March 2015, AH mentioned during an interview with AFOSI
    that Appellant continued to contact her. As a result, on that day Appellant was
    issued another order to have no contact with AH, this time from the deputy
    squadron commander, Major OB. Appellant continued to regularly violate the
    order.
    In April 2015, Appellant was working part-time at a local Walmart. On
    multiple occasions over several days, when Appellant was working at a check-
    out register he stole items from Walmart by giving them to customers—mostly
    other Airmen—without scanning them or by voiding a purchase after initially
    ringing it up. Walmart employees detected the larcenies by monitoring the un-
    usual number of voided items at Appellant’s register and by studying store
    security videos. When confronted, Appellant admitted to stealing the items.
    Walmart identified four incidents during which Appellant either failed to scan
    or voided a total of at least 24 items with a total value over $326.74.
    Finally, on 23 May 2015, Appellant and AH got involved in another physi-
    cal altercation at his apartment. In the course of the incident Appellant
    punched AH in the ribs, pulled her hair, and choked her. AH subsequently
    reported the incident to AFOSI and to civilian police. Appellant was arrested
    by civilian police on 24 May 2015 and held in civilian confinement until 26 May
    2015. Upon his release, Appellant was restricted to Malmstrom AFB. After Ap-
    pellant continued to violate renewed orders not to contact AH, on 9 October
    2015 he was placed in military pretrial confinement where he remained until
    the conclusion of his court-martial on 10 May 2016. Including the three days
    in civilian confinement, Appellant spent a total of 217 days in pretrial confine-
    ment.
    II. DISCUSSION
    A. Post-Trial Delay
    1. Additional Background
    Appellant’s trial concluded on 10 May 2016. The court reporter’s workload
    significantly delayed transcription of the proceedings. In addition, substantial
    recorded portions of the trial that were given to another court reporter for tran-
    scription assistance had to be re-accomplished due to poor quality. The military
    judge did not authenticate the trial transcript until 1 September 2016. During
    the assembly of the record of trial, the base legal office realized an appellate
    4
    United States v. Jimenez, No. ACM 39200
    exhibit was missing. This led to the military judge signing a certificate of cor-
    rection on 25 October 2016 in order to complete the record. Trial defense coun-
    sel’s memorandum dated 24 October 2016 acknowledging notice of the pro-
    posed certificate of correction included a demand for speedy post-trial pro-
    cessing.
    The convening authority’s staff judge advocate (SJA) signed the original
    SJA recommendation (SJAR) to the convening authority on 3 November 2016.
    On 8 November 2016, Appellant’s trial defense counsel requested the SJA
    recuse himself from the post-trial process because the SJA had previously con-
    sulted with the trial defense counsel about Appellant’s case in the SJA’s prior
    role as the chief of the Trial Defense Division. On 10 November 2016, the SJA
    did recuse himself. An acting SJA signed a new SJAR on 10 November 2016,
    which was delivered to Appellant and his counsel. Trial defense counsel sub-
    mitted clemency matters to the convening authority on 24 November 2016. Er-
    rors in an attachment to the SJAR and efforts to serve the SJAR on all of the
    named victims further delayed the preparation of an addendum to the SJAR
    and delivery of clemency matters to the convening authority until 16 December
    2016. The convening authority took action on 19 December 2016, 223 days after
    Appellant’s trial.
    2. Law
    The United States Court of Appeals for the Armed Forces (CAAF) has rec-
    ognized that convicted servicemembers have a due process right to a timely
    review and appeal of court-martial convictions. Toohey v. United States, 
    60 M.J. 100
    , 101 (C.A.A.F. 2004). In United States v. Moreno, 
    63 M.J. 129
    , 142
    (C.A.A.F. 2006), the CAAF established a presumption of unreasonable delay
    when the convening authority does not take action within 120 days of comple-
    tion of trial, when a record of trial is not docketed with the service court within
    30 days of the convening authority’s action, and when this court does not ren-
    der a decision within 18 months of the case being docketed. Where there is such
    a delay, we examine the four factors set forth in Barker v. Wingo, 
    407 U.S. 514
    ,
    530 (1972), in order to determine if there is a due process violation: (1) the
    length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion
    of his right to a timely review; and (4) prejudice to the appellant. Moreno, 63
    M.J. at 135 (citing United States v. Jones, 
    61 M.J. 80
    , 83 (C.A.A.F. 2005);
    Toohey, 
    60 M.J. at 102
    ). “No single factor is required for finding a due process
    violation and the absence of a given factor will not prevent such a finding.” 
    Id.
    at 136 (citing Barker, 
    407 U.S. at 533
    ). However, where an appellant has not
    shown prejudice from the delay, there is no due process violation unless the
    delay is so egregious as to “adversely affect the public’s perception of the fair-
    ness and integrity of the military justice system.” United States v. Toohey, 
    63 M.J. 353
    , 362 (C.A.A.F. 2006).
    5
    United States v. Jimenez, No. ACM 39200
    3. Analysis
    The 223 days that elapsed between the conclusion of Appellant’s trial and
    the convening authority’s action exceeded the 120-day standard for a presump-
    tively unreasonable delay the CAAF established in Moreno. Therefore, we con-
    sider the four Barker factors, beginning with the length of the delay itself. In
    this case, the delay substantially exceeded the Moreno standard. The Govern-
    ment concedes this factor weighs in Appellant’s favor. We concur.
    The Government optimistically contends the second factor, the reasons for
    the delay, weigh in its favor. We cannot agree. We acknowledge the size of the
    record, which spanned 12 total days of trial and included 1208 pages of tran-
    script and well over 100 exhibits. We further acknowledge the involvement of
    multiple victims added to the procedural complexity of the post-trial process.
    Nevertheless, the record demonstrates that time after time the processing of
    Appellant’s case was substantially delayed by inefficiencies and lack of atten-
    tion to detail that cannot be attributed to Appellant. While we do not question
    the good intentions of those involved in the process, delays arising from assign-
    ment of other priorities to the court reporter, poor transcription quality, loss of
    an exhibit, failure to recognize the SJA’s conflict of interest, and errors in SJAR
    attachments are squarely the responsibility of the Government. This factor
    weighs substantially in favor of Appellant.
    The third factor, Appellant’s assertion of his right to timely review, weighs
    somewhat in Appellant’s favor. At a minimum, on 24 October 2016 Appellant
    put the Government on notice that he demanded timely post-trial processing.
    Although this was already 167 days after his trial ended, it still took 56 more
    days to reach convening authority action, largely because of avoidable errors
    by the Government.
    In a different case, these factors may have led us to find a violation of Ap-
    pellant’s due process rights under Moreno. However, the CAAF has held that
    “where there is no finding of Barker prejudice, we will find a due process vio-
    lation only when, in balancing the other three factors, the delay is so egregious
    that tolerating it would adversely affect the public’s perception of the fairness
    and integrity of the military justice system.” Toohey, 63 M.J. at 362. In this
    case, the prejudice analysis is determinative.
    In Moreno, the CAAF identified three types of cognizable prejudice arising
    from post-trial processing delay: (1) oppressive incarceration; (2) anxiety and
    concern; and (3) impairment of the appellant’s ability to present a defense at a
    rehearing. 63 M.J. at 138–39. Where, as in this case as described below, an
    appellant does not prevail on the substantive grounds of his appeal, there is no
    oppressive incarceration. Id. at 139. Similarly, where Appellant’s substantive
    appeal fails, his ability to present a defense at a rehearing is not impaired. Id.
    6
    United States v. Jimenez, No. ACM 39200
    at 140. As for anxiety and concern, the CAAF has explained “the appropriate
    test for the military justice system is to require an appellant to show particu-
    larized anxiety or concern that is distinguishable from the normal anxiety ex-
    perienced by prisoners awaiting an appellate decision.” Id. Appellant contends
    he had such particularized anxiety and concern because his pay ceased once he
    passed the expiration of his term of service (ETS) while in pretrial confinement,
    and he asserts he is unable to pursue a civil remedy for that denial in federal
    court until the appeal of his court-martial is resolved. We find this argument
    unpersuasive for two reasons. First, as explained below, Appellant’s argument
    that he was subjected to unlawful withholding of pay is contrary to clear con-
    trolling precedent from the CAAF interpreting the applicable law. See United
    States v. Fischer, 
    61 M.J. 415
    , 421 (C.A.A.F. 2005). Second, Appellant’s claim
    that he cannot pursue another remedy is supported only by his bare assertion;
    he has failed to demonstrate that he is in fact barred from doing so, or that he
    is entitled to any remedy in federal court.
    Because Appellant fails to demonstrate prejudice, and we find the remain-
    ing factors are not so egregious as to impugn the fairness and integrity of the
    military justice system, we find no violation of Appellant’s due process rights
    under Moreno. Recognizing our authority under Article 66(c), UCMJ, 
    10 U.S.C. § 866
    (c), we have also considered whether relief for excessive post-trial delay
    is appropriate in this case even in the absence of a due process violation. See
    United States v. Tardif, 
    57 M.J. 219
    , 225 (C.A.A.F. 2002). After considering the
    factors enumerated in United States v. Gay, 
    74 M.J. 736
    , 744 (A.F. Ct. Crim.
    App. 2015), aff’d, 
    75 M.J. 264
     (C.A.A.F. 2016), we conclude that such an exer-
    cise of our authority in not appropriate in this case. 5
    B. Pay Termination
    1. Additional Background
    Appellant entered pretrial confinement on 9 October 2015 and remained
    there until the end of his trial on 10 May 2016. Appellant’s term of service
    5 These factors include: (1) how long the delay exceeded the standards set forth in
    Moreno; (2) what reasons, if any, the Government set forth for the delay, and whether
    there is any evidence of bad faith or gross indifference to the overall post-trial pro-
    cessing of this case; (3) whether there is evidence of harm to the appellant or institu-
    tionally caused by the delay; (4) whether the delay has lessened the disciplinary effect
    of any particular aspect of the sentence, and whether relief is consistent with the dual
    goals of justice and good order and discipline; (5) whether there is any evidence of in-
    stitutional neglect concerning timely post-trial processing; and (6) given the passage
    of time, whether this court can provide meaningful relief in this particular situation.
    7
    United States v. Jimenez, No. ACM 39200
    expired on 4 January 2016. On that date he ceased receiving pay. On 15 Janu-
    ary 2016, the SJA for the 341st Missile Wing (341 MW) submitted a request to
    the Air Force Personnel Center (AFPC) to involuntarily extend Appellant on
    active duty. AFPC denied the request, explaining that his enlistment could not
    be extended while he was in pretrial confinement.
    Appellant filed a pretrial motion requesting relief for illegal pretrial pun-
    ishment in violation of Article 13, UCMJ, citing in part the termination of his
    pay. 6 The Government opposed the motion. After findings but before the sen-
    tence was announced, in an oral ruling subsequently supplemented in writing,
    the military judge carefully considered the facts and the law in light of the
    CAAF’s majority opinion in Fischer, 
    61 M.J. 415
    , and denied the motion with
    respect to the termination of pay.
    2. Law
    We review de novo the question of whether an appellant is entitled to credit
    for a violation of Article 13, UCMJ. 
    Id.
     at 418 (citing United States v. Mosby,
    
    56 M.J. 309
    , 310 (C.A.A.F. 2002)). “It is a mixed question of law and fact, and
    the military judge’s findings of fact will not be overturned unless they are
    clearly erroneous.” 
    Id.
     The appellant bears the burden of proof. 
    Id.
    “Article 13, UCMJ, prohibits two things: (1) the imposition of punishment
    prior to trial, and (2) conditions of arrest or pretrial confinement that are more
    rigorous than necessary to ensure the accused’s presence for trial.” United
    States v. King, 
    61 M.J. 225
    , 227 (C.A.A.F. 2005). The first prohibition involves
    an intent or purpose to punish determined by examining the intent of confine-
    ment officials and the purposes of the restrictions or conditions in question. 
    Id.
    (citations omitted). The second prohibition concerns conditions “sufficiently
    egregious [to] give rise to a permissive inference that an accused is being pun-
    ished, or conditions . . . so excessive as to constitute punishment.” 
    Id.
     at 227–
    28 (citations omitted).
    The Department of Defense Financial Management Regulation (FMR) pro-
    vides that a military confinee is not entitled to pay and allowances once his
    term of enlistment expires. See Department of Defense FMR, DoD 7000.14-R,
    Volume 7A, Chapter 1, §§ 010402.F, G (April 2017). If a member in pretrial
    confinement is subsequently acquitted or if the charges are dismissed, pay and
    allowances accrue until the member’s discharge. Id. at § 010402, G.3. In
    Fischer, the CAAF found the provision of the FMR terminating pay upon ETS
    6Appellant also asserted the conditions of his pretrial confinement violated Article 13,
    UCMJ, an issue addressed separately below.
    8
    United States v. Jimenez, No. ACM 39200
    did not operate as an unlawful punishment imposed before trial in violation of
    Article 13, UCMJ. Fischer, 
    61 M.J. at
    418–22.
    3. Analysis
    Appellant contends the termination of his pay was an illegal pretrial pun-
    ishment in violation of Article 13, UCMJ. 7 He does not challenge the military
    judge’s finding at trial that the termination of his pay pursuant to the FMR
    involved no punitive intent, but Appellant asserts it is facially punitive, is ar-
    bitrary, and serves no legitimate governmental purpose in its disparate treat-
    ment of enlisted pretrial confinees who are subsequently convicted and other
    servicemembers in a pretrial status. See Bell v. Wolfish, 
    441 U.S. 520
    , 539
    (1979) (“[I]f a restriction or condition [of pretrial detention] is not reasonably
    related to a legitimate goal—if it is arbitrary or purposeless—a court permis-
    sibly may infer that the purpose . . . is punishment that may not be constitu-
    tionally inflicted upon detainees qua detainees.”) (citation omitted); Howell v.
    United States, 
    75 M.J. 386
    , 393 (C.A.A.F. 2016).
    Appellant recognizes the CAAF’s analysis of the FMR provisions in Fischer
    is contrary to his position, but he attempts to distinguish his case. First, he
    characterizes the efforts of the 341 MW SJA to extend his enlistment after his
    ETS expired as an attempt to “remedy the wrong” he suffered. Appellant sug-
    gests that because the attempt by one governmental actor (the 341 MW SJA)
    to relieve him was thwarted by the application of the FMR by another govern-
    mental actor (AFPC), the FMR provision operated as a punishment in his case.
    We are not persuaded. AFPC correctly interpreted and applied governing reg-
    ulations in Appellant’s case as it would in any other; any dialog between the
    341 MW SJA and AFPC en route to this result did not transform the regulatory
    provisions into a punishment.
    Next, Appellant contends his case is unlike Fischer in that he does not have
    the option of pursuing the matter of his pay in the United States Court of Fed-
    eral Claims (USCFC). See Fischer, 
    61 M.J. at 421
    . Appellant cites several cases
    for the proposition that, although in general servicemembers separated prior
    to ETS may sue in the USCFC for reinstatement and back pay, servicemem-
    bers past their ETS are not entitled to reinstatement or to back pay for periods
    after their ETS. See Dodson v. United States Gov’t, Dep’t of Army, 
    988 F.2d 1199
    , 1208 (Fed. Cir. 1993); Thomas v. United States, 
    42 Fed. Cl. 449
    , 452–53
    (1998), aff’d, 
    217 F.3d 854
     (Fed. Cir. 1999); Dougharty v. United States, 
    27 Fed. Cl. 436
    , 439 (1993), aff’d, 
    11 F.3d 1073
     (Fed. Cir. 1993). Taken together, these
    7 The issue as recited in Appellant’s assignment of error also alleges violation of his
    right to due process, but Appellant’s analysis of the issue is limited to Article 13,
    UCMJ.
    9
    United States v. Jimenez, No. ACM 39200
    cases stand for the sensible proposition that the USCFC cannot direct a mili-
    tary service to reenlist a member, nor will it assume the military service would
    have reenlisted a member where such a decision is not automatic but is within
    the discretion of the service. This does not distinguish Appellant’s case from
    Fischer; like Appellant, Lance Corporal Fischer ceased receiving pay upon the
    expiration of his enlistment while he was in pretrial confinement. Fischer, 61
    M.J. at 416. In fact, Appellant is similarly situated to Lance Corporal Fischer
    in that, as the CAAF put it, if he “takes issue with the propriety of the under-
    lying decisions as a matter of fiscal law, he must pursue that issue before the
    [USCFC].” Id. at 421.
    Finally, Appellant argues Fischer may no longer be valid precedent in light
    of the United States Supreme Court’s decision in Nelson v. Colorado, 
    137 S. Ct. 1249
     (2017). We are not persuaded. In Nelson, the Court found a Colorado stat-
    ute requiring an exonerated criminal defendant to file suit and prove actual
    innocence by clear and convincing evidence in order to recover fees, costs, and
    restitution previously exacted in connection with the overturned convictions
    violated the Fourteenth Amendment 8 guarantee of due process. 
    Id.
     at 1257–
    58. Unlike Nelson, Appellant and Lance Corporal Fischer were not required to
    forfeit property as a result of an invalidated determination of guilt, unless and
    until they bore the burden of proving their actual innocence. Rather, Appellant
    simply did not receive pay to which he was not entitled. As the CAAF explained
    in Fischer, his entitlement to pay terminated at ETS, and “[t]he Government’s
    policy of retroactively paying persons held past their [ETS] when a charge has
    not been sustained at trial does not signify an intent to punish the other
    group.” 61 M.J. at 419.
    Fischer controls, and like the military judge we are not at liberty to substi-
    tute our judgment for that of our superior court, even if we were inclined to do
    so. We hold the termination of Appellant’s pay upon his ETS was not an illegal
    pretrial punishment in violation of Article 13, UCMJ.
    C. Testimony on Pattern of Intimate Partner Violence
    1. Additional Background
    During sentencing proceedings, the Government called Dr. KF as an expert
    in clinical and forensic psychology. Dr. KF testified generally about the char-
    acteristics and effects of intimate partner violence.
    The Defense called Dr. MC, its own expert in clinical and forensic psychol-
    ogy. Dr. MC somewhat undermined Dr. KF’s testimony by providing further
    8   U.S. CONST. amend. XIV.
    10
    United States v. Jimenez, No. ACM 39200
    details and analysis of studies and authorities Dr. KF had cited. On cross-ex-
    amination, trial counsel elicited, inter alia, Dr. MC’s agreement that all 11
    specifications of assault of which Appellant was convicted were instances of
    intimate partner violence.
    After the cross-examination, the military judge permitted the court mem-
    bers to submit in writing their own questions for Dr. MC. One court member
    submitted the following question: “Do you believe [Appellant] shows a pattern
    of interpartner [sic] violence, and what are some of the risks if he is not
    treated?” Trial defense counsel requested an Article 39(a), UCMJ, hearing out-
    side the presence of the members to discuss the proposed question. Counsel for
    both parties opposed asking the second part of the question regarding “risks,”
    and the military judge agreed not to ask that portion. Trial counsel contended
    the first part of the question regarding a “pattern” should be asked. Trial de-
    fense counsel objected, initially on the grounds that it was “outside the scope”
    of Dr. MC’s testimony. The military judge then asked Dr. MC, outside the pres-
    ence of the members, whether he believed Appellant “shows a pattern of inti-
    mate-partner violence.” Dr. MC responded:
    Well, we certainly see a pattern across victims. So, we do see
    repeated episodes of this. And we’ve seen at least more than one
    incident of strangulation in particular. So I think it would be
    hard to say that there isn’t some sort of a pattern here that you
    see across victims and situations.
    The military judge stated he intended to ask the member’s question because it
    was “fairly enough within the expertise of the doctor” and “in regards to [Mil.
    R. Evid.] 403, nor do I find that its probative value would be outweighed by the
    risk of unfair prejudice.”
    Trial defense counsel then objected because Dr. MC’s expertise was not re-
    quired to answer the question; it was already “abundantly clear” that “there’s
    a pattern here and we all got that.” He further contended there was a risk of
    unfair prejudice in that the testimony would create the impression that Appel-
    lant was a “repeat offender.” The military judge opined that the proposed ques-
    tion was distinct from the question of whether Appellant was a repeat offender
    and that there was “no real risk of unfair prejudice.” Finally, trial defense coun-
    sel suggested that in light of training regarding sexual assault in particular,
    the term “pattern of violence” carried “certain stigmas and inclinations” in the
    minds of Air Force members that militated against permitting such testimony.
    The military judge disagreed and overruled the objection.
    When the court members returned, the military judge asked, “do you be-
    lieve that [Appellant] shows a pattern of intimate partner violence?” Dr. MC
    answered:
    11
    United States v. Jimenez, No. ACM 39200
    If we define pattern as behaviors that are repeated over various
    different situations, then I think we would have to say, “Yes.”
    Because we certainly do see certain kinds of behaviors or gener-
    ally behaviors that are defined – that have been defined as IPV
    [intimate partner violence] occurring repeatedly, both within re-
    lationships and across relationships. So I think that the general
    answer to that would be yes.
    2. Law
    A military judge’s decision to admit or exclude expert testimony is re-
    viewed for an abuse of discretion. United States v. Ellis, 
    68 M.J. 341
    , 344
    (C.A.A.F. 2010). “A military judge abuses his discretion when: (1) the findings
    of fact upon which he predicates his ruling are not supported by the record; (2)
    if incorrect legal principles were used; or (3) if his application of the correct
    legal principles to the facts was clearly unreasonable.” 
    Id.
     (citing United States
    v. Mackie, 
    66 M.J. 198
    , 199 (C.A.A.F. 2008)).
    Mil. R. Evid. 403 provides a “military judge may exclude relevant evidence
    if its probative value is substantially outweighed by a danger of . . . unfair prej-
    udice . . . .” Where a military judge conducts a proper balancing test under Mil.
    R. Evid. 403, an appellate court will not overturn the ruling absent a clear
    abuse of discretion. United States v. Ediger, 
    68 M.J. 243
    , 248 (C.A.A.F. 2010)
    (quoting United States v. Ruppel, 
    49 M.J. 247
    , 251 (C.A.A.F. 1998)). If the mil-
    itary judge conducts the Mil. R. Evid. 403 balancing test but “does not suffi-
    ciently articulate his balancing on the record, his evidentiary ruling will re-
    ceive less deference.” United States v. Berry, 
    61 M.J. 91
    , 96 (C.A.A.F. 2005).
    3. Analysis
    Appellant contends Dr. MC’s testimony that Appellant demonstrated a pat-
    tern of intimate partner violence was lent additional weight by Dr. MC’s status
    as an expert and implied Appellant was likely to reoffend in the future. Appel-
    lant argues the military judge abused his discretion by permitting this testi-
    mony and asks this court to reassess his sentence to confinement and grant
    meaningful relief. We decline to do so.
    We acknowledge the probative value of Dr. MC’s answer to the question
    was modest. In trial defense counsel’s words, it was already “abundantly clear”
    in light of trial counsel’s cross-examination of Dr. MC and all other evidence in
    the case regarding the charged assaults that Appellant demonstrated a pattern
    of violence toward his intimate partners. However, by the same token, as the
    military judge recognized, the danger of unfair prejudice, if any, was slight.
    Trial defense counsel himself agreed the evidence demonstrated a pattern of
    intimate partner violence. Dr. MC did not testify regarding Appellant’s likeli-
    12
    United States v. Jimenez, No. ACM 39200
    hood to reoffend. Dr. MC defined “pattern” for purposes of his answer in a com-
    mon sense, easily understood way that focused on past events and not as a
    prediction of future behavior. We are not persuaded his acknowledgement of a
    past pattern of intimate partner violence amounted to a prediction or sugges-
    tion regarding potential recidivism.
    Accordingly, we are not persuaded the military judge abused his discretion
    by concluding the probative value of the court member’s question was not sub-
    stantially outweighed by the danger of unfair prejudice.
    D. Sentence Appropriateness
    1. Law
    We review issues of sentence appropriateness de novo. United States v.
    Lane, 
    64 M.J. 1
    , 2 (C.A.A.F. 2006) (citing United States v. Cole, 
    31 M.J. 270
    ,
    272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
    correct in law and fact and determine should be approved on the basis of the
    entire record. Article 66(c), UCMJ. “We assess sentence appropriateness by
    considering the particular appellant, the nature and seriousness of the of-
    fense[s], the appellant’s record of service, and all matters contained in the rec-
    ord of trial.” United States v. Sauk, 
    74 M.J. 594
    , 606 (A.F. Ct. Crim. App. 2015)
    (citing United States v. Anderson, 
    67 M.J. 703
    , 705 (A.F. Ct. Crim. App. 2009)).
    Although we have great discretion to determine whether a sentence is appro-
    priate, we have no authority to grant mercy. United States v. Nerad, 
    69 M.J. 138
    , 146 (C.A.A.F. 2010).
    2. Analysis
    Appellant personally asserts his sentence “is disproportionate to the facts
    of his case and the victim impact as shown during his court-martial.” He refers
    us to his trial defense counsel’s clemency memorandum on his behalf to the
    convening authority. Therein, among other arguments, trial defense counsel
    notes that although Appellant faced a maximum term of 38 years in confine-
    ment, his convictions for violating no contact orders, using marijuana, distrib-
    uting marijuana, and committing larceny of “a little over $300” contribute 27.5
    years towards that maximum. Trial defense counsel asserted “practical expe-
    rience” indicated these offenses individually would have “at best” merited non-
    judicial punishment and an administrative discharge, and even combined it is
    a “near certainty” they would not result in a general court-martial. In contrast,
    he argued, the real focus of the case—the assaults—accounted for less than a
    third of the maximum available term of confinement. He further contended the
    assaults themselves, which did not result in lasting injuries, were not “ex-
    treme” when considered in the full spectrum of assaults that may be charged
    under Article 128, UCMJ. For these and other reasons, trial defense counsel
    requested the convening authority reduce Appellant’s term of confinement by
    13
    United States v. Jimenez, No. ACM 39200
    two years or, failing that, approve a bad-conduct discharge in lieu of the ad-
    judged dishonorable discharge. We are not persuaded.
    “The military operates under the theory of ‘unitary sentencing’ which has
    been part of military law even before the enactment of the Uniform Code of
    Military Justice.” United States v. Bellacosa, No. ACM 32266, 
    1997 CCA LEXIS 92
    , at *3 (A.F. Ct. Crim. App. 
    6 Mar. 1997
    ) (unpub. op.) (citing United
    States v. Keith, 
    4 C.M.R. 34
     (1952)). Appellant does not now challenge this gen-
    eral principle. Yet, at trial, the military judge permitted the Defense to attach
    a document to Appellant’s written unsworn statement that set forth the indi-
    vidual maximum punishments corresponding to the offenses of which Appel-
    lant had been convicted. Thus, notwithstanding the principle of unitary sen-
    tencing, the court members were made aware of how much each individual
    specification contributed to the 38-year maximum possible term of confine-
    ment. Knowing this, the members decided a 10-year term of confinement was
    appropriate. We cannot say such a sentence is inappropriately severe.
    Notwithstanding trial defense counsel’s minimizations, we do not lightly
    dismiss the seriousness of Appellant’s offenses. Appellant’s criminal miscon-
    duct was longstanding and multifaceted. Over a period of years, he engaged in
    a pattern of physical violence against multiple intimate partners, including
    choking two of them to the point they feared they would die. He repeatedly
    distributed marijuana to multiple other Airmen in his home, and he repeatedly
    used it with them and with a civilian. Moreover, Appellant’s misconduct con-
    tinued and diversified well after he became aware he was under criminal in-
    vestigation in January 2015. On multiple occasions he stole from his part-time
    employer, Walmart. He brazenly and continuously violated no contact orders
    designed, in part, to protect one of his victims, until he was placed in pretrial
    confinement. These violations directly led to one of the aggravated assaults
    during which he choked and battered AH. Having given individualized consid-
    eration to Appellant, the nature and seriousness of the offenses, Appellant’s
    record of service, and all other matters contained in the record of trial, we find
    his sentence is not inappropriately severe. See Sauk, 74 M.J. at 606.
    E. Additional Pretrial Confinement Credit
    1. Additional Background
    The Defense filed a pretrial motion seeking relief for alleged illegal pretrial
    punishment in violation of Article 13, UCMJ, based in part on the conditions
    of Appellant’s military pretrial confinement. 9 The Government opposed the
    9The motion also alleged the termination of Appellant’s pay upon the expiration of his
    term of service while in pretrial confinement violated Article 13, UCMJ; that issue is
    addressed separately above.
    14
    United States v. Jimenez, No. ACM 39200
    motion. At trial, the military judge received evidence and heard argument on
    the motion. The military judge’s written ruling included findings of fact we find
    to be supported by the record, pertinent portions of which are summarized be-
    low.
    In accordance with Air Force regulations, upon entering military pretrial
    confinement at Malmstrom AFB, Appellant was classified as a maximum cus-
    tody detainee. Unlike post-trial detainees, pretrial detainees did not receive an
    initial individualized assessment or opportunity for periodic reassessment of
    their security classification; all pretrial detainees were placed in maximum
    custody status. Had Appellant received an individual assessment, he would
    have been categorized as a “medium in” confinee, the least restrictive classifi-
    cation available at the Malmstrom AFB confinement facility.
    As a maximum custody confinee, Appellant faced greater restrictions than
    did medium custody confinees. Whenever he left the confinement facility, in-
    cluding to meet his defense counsel, attend court sessions, or go to the barber-
    shop, he was required to be handcuffed, shackled, and accompanied by escorts
    and an armed guard. When Appellant received visitors at the confinement fa-
    cility, he was required to be handcuffed and shackled and was permitted no
    physical contact; medium confinees were not so restrained and were permitted
    a brief hug or handshake with visitors. Appellant was required to eat his meals
    in his cell. Appellant was not permitted to leave his cell to use the facility’s day
    room or outdoor courtyard because he was not allowed to mingle with the me-
    dium confinees held in the facility. As a result, Appellant spent essentially all
    day in his cell, unless required to leave for appointments, for hygiene needs, or
    to receive visitors. If Appellant had been able to use the day room and court-
    yard, unlike medium confinees he would have been shackled, handcuffed, and
    monitored by at least one guard.
    The military judge found:
    [W]hile there is a readily obvious legitimate government ra-
    tionale for initially placing a pre-trial confinee in maximum con-
    finement status, the same cannot be said of arbitrarily requiring
    that all pretrial confinees must perpetually remain in maximum
    confinement status, regardless of their behavior or the duration
    of confinement, without even the possibility of having their sta-
    tus reassessed. It is strange, indeed, that a convict will enjoy the
    opportunity to be individually reassessed and to earn less re-
    strictive conditions while a pre-trial confinee, who enjoys the
    presumption of innocence, is denied even the opportunity to be
    reassessed. Likewise, it is strange, indeed, that, in order to avoid
    the evils of co-mingling pre-trial confinees with convicts, the gov-
    ernment should resolve the issue of things such as access to the
    15
    United States v. Jimenez, No. ACM 39200
    dayroom by allowing convicts the privilege, while keeping the
    accused essentially locked up 24 hours a day.
    (Emphasis added). The military judge found Appellant’s confinement under
    maximum security conditions during the first 14 days of his military pretrial
    confinement was reasonably related to a legitimate government purpose. How-
    ever, his continued maximum confinement in perpetuity without the oppor-
    tunity for reassessment for the remaining 200 days was “purposeless, arbi-
    trary, and not reasonably related to a legitimate government purpose.” Accord-
    ingly, the military judge awarded Appellant an additional day-for-day credit
    against his sentence to confinement for each of those 200 days.
    2. Law
    Whether an Appellant is entitled to additional confinement credit for al-
    leged violations of Article 13, UCMJ, is a mixed question of fact and law. United
    States v. McCarthy, 
    47 M.J. 162
    , 165 (C.A.A.F. 1997). We defer to a military
    judge’s findings of fact unless they are clearly erroneous, whereas we consider
    de novo whether the facts entitle Appellant to additional credit against his
    sentence. United States v. Williams, 
    68 M.J. 252
    , 256 (C.A.A.F. 2010). “Article
    13, UCMJ, prohibits two things: (1) the imposition of punishment prior to trial,
    and (2) conditions of arrest or pretrial confinement that are more rigorous than
    necessary to ensure the accused’s presence for trial.” King, 
    61 M.J. at 227
    . The
    first prohibition involves an intent or purpose to punish determined by exam-
    ining the intent of confinement officials and the purposes of the restrictions or
    conditions in question. 
    Id.
     (citations omitted). The second prohibition concerns
    conditions “sufficiently egregious [to] give rise to a permissive inference that
    an accused is being punished, or conditions . . . so excessive as to constitute
    punishment.” 
    Id.
     (citations omitted).
    3. Analysis
    Appellant personally asserts the 200 days of additional confinement credit
    awarded by the military judge was inadequate for the pretrial confinement
    conditions he endured. He refers us to “his trial defense counsel[’s] argument
    regarding this issue as presented in his clemency submissions.” However, alt-
    hough trial defense counsel’s clemency submission sought relief for allegedly
    illegal post-trial confinement, he did not claim Appellant was entitled to addi-
    tional relief for the conditions of his pretrial confinement. Nevertheless, we
    have evaluated Appellant’s claim.
    We do not agree Appellant is entitled to additional credit for illegal pretrial
    punishment. Although the military judge’s ruling is not a model of clarity as to
    his specific rationale, his description of the pretrial confinement security clas-
    sification policy as “purposeless, arbitrary, and not reasonably related to a le-
    gitimate government purpose” and his reference to McCarthy suggest he found
    16
    United States v. Jimenez, No. ACM 39200
    a “permissible inference of punishment.” See McCarthy, 47 M.J. at 167 (cita-
    tions omitted). Whether or not we agree, we find the military judge’s award of
    200 days of additional confinement credit was adequate to remedy any viola-
    tion of Article 13, UCMJ. The military judge did not find a specific intent to
    punish Appellant. The Malmstrom AFB confinement personnel applied the ex-
    isting Air Force policies regarding confinement and treated Appellant as they
    would have treated any other pretrial confinee under the circumstances—spe-
    cifically, where medium security post-trial confinees were also present in the
    facility. There is no evidence Appellant’s maximum security status negatively
    affected his health or opportunity to participate in his defense. The military
    judge simply found those regulations struck an unreasonable balance between
    the competing interests of pretrial and post-trial confinees, which prejudiced
    Appellant’s interests in liberty and, to a certain extent, dignity. The award of
    200 days of additional confinement credit was sufficient to redress that preju-
    dice.
    F. Conditions of Post-Trial Confinement
    1. Law
    We review de novo whether an appellant has been subjected to impermis-
    sible conditions of post-trial confinement in violation of Article 55, UCMJ, 
    10 U.S.C. § 855
    , or the Eighth Amendment. 10 United States v. Wise, 
    64 M.J. 468
    ,
    473 (C.A.A.F. 2007). “‘[A] prisoner must seek administrative relief prior to in-
    voking judicial intervention’ to redress concerns regarding post-trial confine-
    ment conditions.” 
    Id. at 471
     (quoting United States v. White, 
    54 M.J. 469
    , 472
    (C.A.A.F. 2001)). Absent some unusual or egregious circumstance, an appellant
    must demonstrate he has exhausted the prisoner grievance system and his
    right to petition his command for relief under Article 138, UCMJ. 
    Id.
    “Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and
    unusual punishment. In general, we apply the Supreme Court’s interpretation
    of the Eighth Amendment to claims raised under Article 55, UCMJ, except
    where legislative intent to provide greater protections under Article 55 . . . is
    apparent.” Gay, 74 M.J. at 740. To demonstrate a violation of the Eighth
    Amendment, an appellant must show:
    (1) an objectively, sufficiently serious act or omission resulting
    in the denial of necessities; (2) a culpable state of mind on the
    part of prison officials amounting to deliberate indifference to
    10   U.S. CONST. amend. VIII.
    17
    United States v. Jimenez, No. ACM 39200
    [his] health and safety; and (3) that [he] has exhausted the pris-
    oner-grievance system . . . and that he has petitioned for relief
    under Article 138, UCMJ.
    United States v. Lovett, 
    63 M.J. 211
    , 215 (C.A.A.F. 2006). Under our broad au-
    thority and mandate under Article 66(c), UCMJ, to approve only so much of
    the sentence as we find appropriate in law and fact, we may grant sentence
    relief due to an appellant’s post-trial treatment even in the absence of an
    Eighth Amendment or Article 55, UCMJ, violation. Gay, 74 M.J. at 742–43; see
    Tardif, 57 M.J. at 223.
    2. Analysis
    Appellant argues he is entitled to additional confinement credit because he
    remained in maximum security confinement conditions for 17 days following
    the conclusion of his trial. Appellant provides no sworn declaration, affidavit,
    or other supplement to the record in support of this claim, but once again refers
    us to his trial defense counsel’s clemency submission to the convening author-
    ity. Therein, trial defense counsel asserted Appellant remained in maximum
    confinement status from 10 May 2016 until 27 May 2016 due to an error by
    confinement authorities in classifying his confinement status. Trial defense
    counsel asserted that had the error not occurred, Appellant would have been
    classified as medium custody status. As a result, Appellant improperly en-
    dured 17 additional days of maximum custody under the restrictive conditions
    described above in relation to the issue of his pretrial confinement in the same
    facility. Therefore, trial defense counsel argued, Appellant should be awarded
    an additional 51 days of confinement credit.
    Appellant’s argument fails for multiple reasons. First, Appellant offers no
    evidence that he was in fact misclassified into post-trial maximum custody sta-
    tus. Trial defense counsel’s bare assertions in the unsworn clemency memo-
    randum do not carry the weight of evidence.
    Second, in response to Appellant’s assignment of error, the Government
    provided a sworn declaration dated 25 April 2018 from SSgt RM, the assistant
    noncommissioned officer in charge of the confinement facility. SSgt RM does
    not admit or deny there may have been an error with respect to the type of
    aggravated assault under Article 128, UCMJ, used to calculate Appellant’s cus-
    tody status. However, SSgt RM clarifies that, regardless of the asserted error,
    Appellant would have been classified as a maximum security confinee from 10
    May 2016 until 27 May 2016 based on his 10-year term of confinement, his
    conviction for distributing marijuana, and a disciplinary offense while in con-
    finement. Therefore, the asserted error, even if it were proven, was harmless
    with respect to Appellant’s custody status. No evidence in the record contra-
    dicts SSgt RM’s statement.
    18
    United States v. Jimenez, No. ACM 39200
    Third, even if we accepted arguendo that an error had resulted in Appel-
    lant’s custody grade misclassification for 17 days, such an error does not ap-
    proach the level of cruel or unusual punishment violative of Article 55, UCMJ,
    or the Eighth Amendment. There is no evidence Appellant was subjected to
    worse conditions than any other maximum confinee would have been, much
    less of “denial of necessities” or “deliberate indifference to [his] health and
    safety.” Lovett, 63 M.J. at 215. Finally, given the lack of a factual foundation
    for Appellant’s claim, we need not address whether relief even in the absence
    of an Eighth Amendment or Article 55, UCMJ, violation is appropriate. See
    Gay, 74 M.J. at 742–43; Tardif, 57 M.J. at 223.
    III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
    ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
    cles 59(a) and 66(c), UCMJ, 
    10 U.S.C. §§ 859
    (a), 866(c). Accordingly, the find-
    ings and sentence are AFFIRMED.
    FOR THE COURT
    CAROL K. JOYCE
    Clerk of the Court
    19