United States v. Brown ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 38864
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UNITED STATES
Appellee
v.
Leon A. BROWN IV
Captain (O-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 6 July 2017
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Military Judge: Natalie D. Richardson.
Approved sentence: Dismissal, confinement for 25 years, and forfeiture
of all pay and allowances. Sentence adjudged 8 December 2014 by
GCM convened at Minot Air Force Base, North Dakota.
For Appellant: Major Mark C. Bruegger, USAF; Major Jeffrey A. Da-
vis, USAF; Frank J. Spinner, Esquire.
For Appellee: Major Tyler B. Musselman, USAF; Major Mary Ellen
Payne, USAF; Major J. Ronald Steelman III, USAF; Major Meredith L.
Steer, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judges MAYBERRY and JOHNSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Brown, No. ACM 38864
SPERANZA, Judge:
A military judge, sitting as a general court-martial, convicted Appellant,
contrary to his pleas, of providing alcohol to minors on divers occasions;
wrongfully distributing marijuana on divers occasions; wrongfully distrib-
uting psilocybin (mushrooms) on divers occasions; wrongfully using mush-
rooms on divers occasions; sexually assaulting a child, GB; 1 behaving in a
disgraceful and dishonorable manner that seriously compromised his stand-
ing as an officer by wrongfully and dishonorably organizing individuals into a
violent gang; wrongfully communicating a threat to AL on divers occasions;
wrongfully communicating to MH a threat to injure ME by paying someone to
assault ME; receiving consideration for arranging for KW, PW, WK, and oth-
er unnamed persons to engage in sexual intercourse with others; unlawfully
entering ML’s house; sexually assaulting a child, FT; 2 wrongfully threatening
to hurt, injure, or kill Captain (Capt) CM; wrongfully threatening to hurt, in-
jure, or kill Special Agent (SA) JG; and wrongfully threatening to hurt, in-
jure, or kill Airman Basic (AB) JS, in violation of Articles 92, 112a, 120b, 133,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a,
920b, 933, 934. 3 The military judge sentenced Appellant to a dismissal, con-
finement for 25 years, and forfeiture of all pay and allowances. The military
1 The military judge found Appellant not guilty pursuant to Rule for Courts-Martial
(R.C.M.) 917 of raping GB in violation of Article 120b,UCMJ, 10 U.S.C. § 920b, but
convicted Appellant of the lesser-included offense of sexual assault, also in violation
of Article 120b, UCMJ.
2 The military judge found Appellant not guilty pursuant to R.C.M. 917 of raping FT
in violation of Article 120b, UCMJ, but convicted Appellant of the lesser-included of-
fense of sexual assault, also in violation of Article 120b, UCMJ.
3 The military judge acquitted Appellant of conspiracy to pander; distribution of
methamphetamine; distribution of heroin; distribution of Vicodin; distribution of ec-
stasy; distribution of lysergic acid diethylamide (LSD); sexual assault of KW by ad-
ministering KW a drug or intoxicant; sexual assault of KW by encouraging an un-
known individual to commit a sexual act upon KW by administering KW a drug or
intoxicant; conduct unbecoming an officer for organizing individuals under the age of
18 years to have sex for hire; obstruction of justice by requesting Airman Basic (AB)
JS have others give AL marijuana or cash if she refused to testify or “have others
beat her up or kill her if she refused the offer”; obstruction of justice by requesting
AB ET have others give AL marijuana or cash if she refused to testify or “have others
beat her up or kill her if she refused the offer”; and communicating a threat to hurt,
injure, or kill AB JS. The military judge granted the Defense’s motion for a finding of
not guilty pursuant to R.C.M. 917 and found Appellant not guilty of raping FT. Ap-
pellant was also found guilty by several exceptions and substitutions.
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United States v. Brown, No. ACM 38864
judge credited Appellant with 60 days of pretrial confinement credit. The
convening authority approved the adjudged sentence.
On appeal, Appellant argues that all of his convictions, except his provi-
sion of alcohol to minors, distribution of marijuana, mushroom use, and
threats to AL, are legally and factually insufficient. 4 Appellant also claims
the Government failed to meet its discovery obligations; 5 he was deprived his
constitutional right to effective assistance of counsel at trial; 6 the military
judge erred in not granting additional sentencing credit for pretrial punish-
ment Appellant suffered during a search of his pretrial confinement sleeping
quarters; and post-trial delays in his case warrant meaningful relief.
We find there is insufficient evidence to support Appellant’s conviction of
unlawful entry. We also find that Appellant was subjected to pretrial pun-
ishment in violation of Article 13, UCMJ, 10 U.S.C. § 813, and is, therefore,
entitled to additional, modest confinement credit. We find no other prejudi-
cial error, affirm the remaining findings, and reassess the sentence below.
I. BACKGROUND
Appellant and at least one other local civilian criminal decided to form a
“Crips” gang in Minot, North Dakota. Appellant—referred to by the gang
members and their associates as “Captain”—became the self-proclaimed
leader, or “OG,” of this gang, whose criminal enterprise tended to revolve
around local teenage girls.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant essentially maintains that most of his convictions were ob-
tained through the testimony of unbelievable witnesses and the judge’s mis-
interpretation of the evidence, to include his recorded pretrial confinement
conversations. However, the law, and indeed the facts of this case, cause us to
decline Appellant’s claims and find all but one of his convictions legally and
factually sufficient for the reasons discussed below.
4The legal and factual sufficiency of Appellant’s distribution of mushrooms on divers
occasions is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
5 Raised pursuant to Grostefon, 12 M.J. 431.
6 Raised pursuant to Grostefon, 12 M.J. 431.
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United States v. Brown, No. ACM 38864
We have a statutory mandate to “conduct a de novo review of both the le-
gal and factual sufficiency of a conviction.” United States v. Walters, 58 M.J.
391, 395 (C.A.A.F. 2003).
The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfind-
er could have found all the essential elements beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987); see also United
States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The “reasonable doubt”
standard does not require that the evidence be free from conflict. United
States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of
legal sufficiency, we are bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56
M.J. 131, 134 (C.A.A.F. 2001). The question, therefore, is whether “a reason-
able factfinder reading the evidence one way could have found all the ele-
ments of the offense beyond a reasonable doubt.” United States v. Gutierrez,
73 M.J. 172, 175 (C.A.A.F. 2014) (quoting United States v. Oliver, 70 M.J. 64,
68 (C.A.A.F. 2011)).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasona-
ble doubt.” Turner, 25 M.J. at 325; see also United States v. Reed, 54 M.J. 37,
41 (C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh,
impartial look at the evidence,” applying “neither a presumption of innocence
nor a presumption of guilt” to “make [our] own independent determination as
to whether the evidence constitutes proof of each required element beyond a
reasonable doubt.” United States v. Washington, 57 M.J. 394, 399.
1. Sexual Assault of GB
The military judge convicted Appellant of sexual assault of a child for
penetrating GB’s vulva with his penis when, at the time, GB was only 15
years old. Appellant committed this offense during a multi-day party he host-
ed—the “Project X” party. GB went to this party with her teenage friends,
KW and KH. Another teenage girl, AL, met GB at the party. GB, KH, KW,
and AL testified at trial.
At the time of the party, KW had known Appellant for several months.
KW testified that at the party she told Appellant GB’s age. KW described
walking into Appellant’s bedroom and seeing Appellant having sexual inter-
course with GB. She recounted Appellant and GB being naked with Appel-
lant on top.
GB explained that she met Appellant at this party when she was 15 years
old. At the party, GB got extremely drunk. She remembered only “flashbacks”
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United States v. Brown, No. ACM 38864
of the evening through the next morning. In pertinent part, GB recounted
spending time with Appellant in his living room, being on Appellant’s bed
and picking her bra up off of the bedroom floor, waking up in the morning
with her clothes on and nobody else in the bedroom, returning to the down-
stairs, and “start[ing] the party again.”
KH turned 16 years old the same month as the “Project X” party. She too
first met Appellant at the party. KH described “hanging out” and “drinking
when [Appellant] brought the booze home.” KH described GB as “really
drunk” and “puking everywhere.” KH observed Appellant and GB together on
a couch, Appellant telling GB she was “really pretty,” Appellant and GB
“making out,” and the two eventually going upstairs. KH also described see-
ing GB the next morning in Appellant’s bedroom, GB’s clothes on the floor,
and GB naked except for a bedsheet. Appellant was in the bathroom at the
time.
AL met Appellant at the “Project X” party. AL described GB as being
“trashed” the first evening of the party. AL also recounted a conversation she
had with Appellant the next day during which Appellant admitted to having
sex with GB and claimed “he would have got [sic] her pregnant if he hadn’t
got [sic] the Plan B pill . . . .” Appellant later became GB’s boyfriend and ex-
changed text messages with AL related to his relationship with GB. Appel-
lant’s text message communications with AL included the following:
[Appellant:] Did [GB] tell you I got her prego? Lol
[AL:] The night of ur party??
[Appellant:] Another time.
As Appellant notes on appeal, each of these witnesses was thoroughly
cross-examined by Appellant’s trial defense counsel. Nonetheless, Appellant
argues that his conviction of this offense is neither legally nor factually suffi-
cient because “penetration was not proven,” “KW lacked credibility,” and
“KH’s testimony is not credible.” The military judge determined otherwise, at
least with respect to this offense. Considering the evidence in the light most
favorable to the prosecution and drawing every reasonable inference from the
evidence in favor of the prosecution, we find a reasonable factfinder could
have found all the essential elements of this offense beyond a reasonable
doubt. Moreover, after weighing the evidence presented at trial regarding
Appellant’s sexual assault of GB and making allowances for not having ob-
served the witnesses who testified as to this offense, we are convinced beyond
a reasonable doubt Appellant sexually assaulted a child, GB, by penetrating
GB’s vulva with his penis.
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United States v. Brown, No. ACM 38864
2. Sexual Assault of FT
The military judge convicted Appellant of sexually assaulting FT, a child
who was only 14 years old at the time, by penetrating FT’s vulva with his pe-
nis, between on or about 1 September 2013 and on or about 30 October 2013.
FT did not testify at trial. FT’s brother—JP—and KW testified. In addition,
JG and AB DE testified about incriminating statements and admissions Ap-
pellant made to them while they were confined together during Appellant’s
pretrial confinement at Minot Air Force Base (AFB), North Dakota. Audio
recordings of Appellant’s pretrial confinement conversations were also admit-
ted into evidence.
JP testified he met Appellant at a party at Appellant’s home approximate-
ly one year after the “Project X” party. While at the party, JP recounted over-
hearing Appellant tell other partygoers that FT “f[***]s like a boss.” JP told
Appellant that his sister, FT, was only 14 years old. According to JP, Appel-
lant was “shocked and appalled” and told JP that “he thought she was 17.”
KW introduced FT to Appellant and told Appellant FT’s age—younger
than 15 years old at the time. On direct examination, trial counsel asked KW
if there was “anything physical between [FT] and [Appellant].” KW testified
that, near the end of 2013, she walked into Appellant’s bedroom and wit-
nessed Appellant and FT naked on Appellant’s bed with Appellant on top of
FT having sex with her.
Appellant was in pretrial confinement with JG, a former military member
who was then serving post-trial confinement. JG described Appellant’s
statements about FT as follows:
Q. Did [Appellant] ever talk about an individual named [FT]?
A. Yes.
Q. What did he say about [FT]?
A. I guess one night they were throwing a party and [FT] came
over. They were drinking and she asked [Appellant] and the
other people, the other gang members there, what it takes to
get into the gang and they told her that they would have to
sleep with her to get into the gang. I guess that [Appellant]
said her and three, including him, went up to a bedroom and
slept with her. I guess [Appellant] went first followed by [one
gang member] and then some other guy who I don’t know the
name of.
Q. That’s what [Appellant] told you?
A. Yes.
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United States v. Brown, No. ACM 38864
Q. Did [Appellant] say how old [FT] was?
A. At the time she was 14.
Q. Did [Appellant] say specifically what happened that night
with [FT]?
A. Yes.
Q. Okay, what did he say?
A. He said that they had sex, that he went first. [One gang
member] went second, and the other guy went third to get her
into the gang.
AB DE knew Appellant well before they spent time together in confine-
ment. Apart from describing Appellant’s involvement with alcohol, drugs,
threats, and GB, AB DE recounted Appellant explaining that KW “would
bring girls over to have him sleep with,” and “in the military ‘of age’ is 16,
and he doesn’t ask their age anyway.” AB DE also described comments Appel-
lant made about FT in pretrial confinement. According to AB DE, the con-
finees were listing people they found attractive and FT’s name was listed.
Appellant stated. “Oh, [FT] that’s the other girl that I got the abortion for.”
AB DE responded that “She’s got to be like 17 or 18.” AB DE testified that
Appellant then clarified “No, she was 14 at the time.” AB DE continued to
recount Appellant’s discussion of FT that included the following general
statements or admissions: FT was drunk the first time Appellant had sex
with her; “the first time she was joining the gang so three of the gang mem-
bers had sex with her; and the second time was when [Appellant] got her
pregnant.” (Emphasis added).
The Air Force Office of Special Investigations (AFOSI) placed a recording
device inside the confinement facility to capture Appellant’s conversations
with the other confinees. In one recording, the confinees joke about Appel-
lant’s “Project X” party—“[w]hat do you call a bunch of 15-year-old girls par-
tying at a house? . . . [Appellant’s] Project X party.” This leads to the follow-
ing exchange, evidently referring to [FT]:
[Appellant:] I wasn’t even sure if it was me that got her preg-
nant. She got f[****]d by three dudes on the same f[***]in
night.
[Confinee:] You must feel responsible if you took her to the
abortion clinic.
[Confinee:] Brown, you promote the degradation of our youth.
[Appellant:] I’m doing them a favor.
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United States v. Brown, No. ACM 38864
[Confinee:] The f[**]k you are. How are you doing a 14-year-
old-girl a favor by knocking her up, feeding her drugs, and then
taking her to the Red River abortion clinic?
[Confinee:] So, if a 14 year old gets off, if you just happen to be
driving by ----
[Appellant:] She said she was f[*****]n 17.
An excerpt of another recording contained the following statement Appellant
made about FT:
When I f[*****]d [FT] I really did not know her age. I really
thought she was 17, because she f[*****]d like she was older
...
She was getting gang f[****]d. She f[****]d me and then after
[one gang member] f[****]d her, and then [another] f[****]d
her, and then she was like [inaudible].”
[Another confinee asks Appellant] And she’s 15?
[Appellant responds] Yep.
Appellant was originally charged with raping FT, a child, for penetrating
her vulva with his penis by using force against her, to wit: holding her down
with his arms. After the Government rested its findings case, the Defense
moved for finding of not guilty of this specification pursuant to Rule for
Courts-Martial (R.C.M.) 917. Trial defense counsel maintained, “On this
there has been [no] evidence whatsoever that Captain Brown used force to
wit: holding [FT] down with his arms at any point while they were having
sex.” The Government agreed with the Defense’s assessment, with trial coun-
sel stating:
there was no independent evidence of force because [FT] was
not present or testified about that. We do believe there is a
lesser included offense. So as to the greater offense of force it is
our position that we agree. To the lesser included offense of
sexual assault of a child, there is evidence.
Appellant was convicted of this lesser-included offense.
Appellant was originally charged with another specification of raping FT,
a child, which alleged Appellant penetrated FT’s vulva with his penis by ad-
ministering to her a drug, intoxicant or other similar substance. After the
Government rested its findings case, the Defense moved for a finding of not
guilty of this offense pursuant to R.C.M. 917. Again, the Government agreed
and the following exchange occurred between the military judge and trial
counsel:
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United States v. Brown, No. ACM 38864
STC: And we agree with defense on [the rape by administering
a drug, intoxicant, or other similar substance specification],
that there has not been independent evidence of that specifica-
tion as far as [FT]. There was only one incident talked about by
multiple witnesses. The audio disagrees, but there is no inde-
pendent evidence, so we agree.
MJ: And that was to all of the entire specification?
STC: To all of [this specification] because I don’t think there is
independent evidence of two incidents. There is just one inci-
dent.
Accordingly, the military judge granted the defense motion and found Appel-
lant not guilty of raping FT by administering her a drug, intoxicant or other
similar substance.
Appellant argues that his conviction of sexually assaulting FT is legally
and factually insufficient because “[t]he only potentially credible evidence
supporting this specification came from testimony provided by JP, FT’s
brother, and statements purportedly made by [Appellant], admitting to sexu-
al intercourse with FT.” Appellant also argues that his statements evidenced
his “belief that FT was 17 years old, not 14 years old as testified to by her
brother.” Accordingly, Appellant maintains, “There was no credible evidence
that [Appellant] knew or believed that FT was 14 years old at the time any
alleged sexual acts may have taken place.” Appellant also claims, “There is
no evidence corroborating penetration.” Appellant further explains that JP’s
“story . . . does not make sense,” because “[i]t makes no sense that JP would
not confront [Appellant] if this really happened . . . [,] nor did he tell his par-
ents or report it to the police.” Finally, Appellant reasons that “[t]o the extent
the government relies on any testimony by KW regarding sexual acts be-
tween [Appellant] and FT, KW’s credibility has been sufficiently chal-
lenged . . . .”
While we acknowledge the military judge acquitted Appellant of several
charges to which KW was the primary—if not the only—witness, we are
nonetheless mindful that the military judge “may believe one part of a wit-
ness’ testimony and disbelieve another.” United States v. Harris, 8 M.J. 52,
59 (C.M.A. 1979). Accordingly, Appellant’s view that the military judge’s find-
ings necessarily render KW’s entire testimony unbelievable is misplaced. In-
deed, after considering the evidence and all reasonable inference in a light
most favorable the prosecution, we find that the military judge—a rational
factfinder presumed to know the law—could have found beyond a reasonable
doubt that Appellant was not either subjectively or objectively mistaken
about FT’s age and penetrated FT’s vulva with his penis. Additionally, after
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United States v. Brown, No. ACM 38864
weighing the evidence presented at trial regarding Appellant’s sexual assault
of FT and making allowances for not having observed the witnesses who tes-
tified as to this offense, we are convinced beyond a reasonable doubt Appel-
lant sexually assaulted a child, FT, by penetrating FT’s vulva with his penis.
3. Organizing a Violent Gang
The military judge convicted Appellant of the following offense, in viola-
tion of Article 133, UCMJ:
[Appellant did] behave in a manner that disgraced and dishon-
ored [Appellant] and seriously compromised his standing as a
commissioned officer by wrongfully and dishonorably organiz-
ing individuals into a violent gang, to the disgrace of the armed
forces.
Appellant, along with his gang member associates, dressed in their gang col-
or, blue. Blue clothing and blue bandanas were found at Appellant’s residence
along with a picture on Appellant’s wall that read “Crips for Life” next to his
name “Leon.” Multiple, if not all, witnesses testified, in some respect, about
Appellant’s gang-related activities, as well as his leadership role within the
“Crips” gang. Indeed, Appellant’s own statements confirmed his role within
the gang and detailed his participation in its activities.
Accordingly, the evidence presented at trial caused Appellant on appeal to
“concede[] that the evidence demonstrates multiple claims by friends and
other inmates that [Appellant] was involved in ‘gang’ activity.” However, Ap-
pellant claims that the “challenge” for us “is determining whether [Appellant]
was engaged in hyperbole and bravado while hanging out with under-aged
females and others, whether friends or fellow inmates, that he was trying to
impress.” Appellant also asserts that “there was no credible evidence of any
‘violent’ activity as alleged.” In support of his argument, Appellant once again
attacks the credibility of witnesses and maintains that his incriminating
statements were merely “hyperbole and fiction to impress other inmates.”
After considering the evidence of this offense and all reasonable infer-
ences in a light most favorable to the prosecution, finding Appellant’s convic-
tion of wrongfully and dishonorably organizing a violent gang legally suffi-
cient is not a particularly difficult challenge. Appellant fancied himself the
leader of a criminal enterprise and, at times, exaggerated his and his gang’s
exploits while trying to “impress” his fellow inmates, who were all enlisted
members. Appellant’s statements, as described by witnesses, included his
boast that his gang called him “OG, King Cold” and that he directed all of the
gang’s activities. Appellant also explained that in order to join the gang,
males had to get beaten up by the gang members and females had to have
sexual intercourse with three gang members. Appellant also admitted that
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United States v. Brown, No. ACM 38864
his gang would “rob people, break into schools, [and] they broke [KW]’s win-
dow.” Appellant’s claims were corroborated by testimony describing threats
and destruction of property. The military judge, as a reasonable factfinder,
could have found beyond a reasonable doubt that Appellant organized a vio-
lent gang. Moreover, we are convinced beyond a reasonable doubt that Appel-
lant organized this so-called “Crips” gang, he was the unquestioned leader of
the gang, his gang was violent, and that he is guilty of this Article 133 of-
fense.
4. Prostitution Ring
The military judge convicted Appellant of the following offense, in viola-
tion of Article 134, UCMJ:
[Appellant did] wrongfully receive valuable consideration, to
wit: money, on account of arranging for K.W., P.W., W.K., and
other unnamed persons to engage in acts of sexual intercourse
with unnamed persons, which conduct, under the circumstanc-
es, was of a nature to bring discredit upon the armed forces.
Appellant described his gang’s main activities as “drugs, prostitution,
[and] burglary,” according to JG. With regard to the “prostitution ring,” JG
testified, on direct examination from trial counsel:
Q. Did he talk about what his involvement would be with the
drugs and prostitution? What would be his involvement with
that?
A. He would basically just run things behind the scenes. He
would let his gang members actually deal hands-on.
Q. Did he talk about whether he made the decisions?
A. Yes, he said that anything that goes on in his gang is run
through him first.
....
Q. Did you hear anything about prostitution?
A. Yes, they had a prostitution ring, and they had girls ranging
in ages from 15 to 21. The younger girls would bring in. . .
They would charge more for the younger girls. It was kind of
run with him and a girl called [WK], who goes by Nona. She
kind of headed that up. I am not sure how they recruited the
girls or anything like that.
....
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United States v. Brown, No. ACM 38864
Q. Did he talk about what the money exchange would be for the
prostitution?
A. Like $300.00 to $800.00.
Q. Sorry?
A. $300.00 to $800.00. The younger girls would bring in more
money, so they would get charged more.
JG testified during cross-examination that Appellant indicated that he re-
ceived a 70 percent cut on all money the gang received from prostitution. Fur-
ther, AB DE testified that Appellant stated that “they ran a prostitution ring,
that people would come over to his house and there was girls named Nona
and Kiki who were the prostitutes and possibly [KW]; and guys would pay
him to sleep with them.”
In addition, KW testified about witnessing people pay Appellant to have
sex with her and on another occasion TW. KH testified about WK’s role as a
prostitute in Appellant’s gang and how Appellant provided WK money “like it
was a job . . . .” TS testified that WK was a member of Appellant’s gang. TS
also described on direct examination how Appellant’s, and the gang’s, second-
in-charge, CM, approached her about a “prostitution ring:”
Q. What was approached to you about this prostitution ring?
A. Just being the head person, like the head girl in the house.
Q. What would be your responsibilities for being the head girl
in the house?
A. Make sure that they brought the money back to him, and
make sure that they were actually doing what they were told
to.
Q. Did you agree to that?
A. No, sir.
The prosecution also presented an audio recording of the following con-
versation between Appellant and another confinee, AB JS: 7
[AB JS:] Were you running prostitution?
7While discussing this conversation in his Reply Brief to the Government Answer to
Court Order, dated 5 May 2017, Appellant states “Given the timing, it is unclear
what Appellant is referencing; admittedly, it could indeed be that he had run his own
prostitution ring.”
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United States v. Brown, No. ACM 38864
[Appellant:] What?
[AB JS:] Were you dealing with prostitution?
[Appellant:] Oh yeah, I guess some girl’s angry dad knew and
f[****]n went to OSI.
[AB JS:] I heard—I heard that’s pretty big up here.
[Appellant:] Yeah it is; also one of those, um, one of those grain
silos, they were running a ring inside one of them and the cops
busted it.
[Banter by several individuals at once.]
[Appellant:] S[**]t, I had girls from 16 to 21.
[AB JS:] Yeah?
[Appellant:] Yeah.
In challenging the legal and factually sufficiency of this conviction, “[Ap-
pellant] does not dispute that multiple witnesses testified about his purport-
ed involvement in gang activity. The dispute is that there was no credible ev-
idence of violence [sic] or that, as argued below, his alleged involvement was
anything more than empty boasting.” Appellant maintains there is “absolute-
ly no credible evidence whatsoever of any prostitution activity or of any ‘mon-
ey exchange’. . . .[T]here is no money, no arrests, and no name of the alleged
‘John’ in [the PW] incident.” Most importantly to Appellant, PW did not testi-
fy. In addition, Appellant again argues “KW’s testimony has already been
discredited by the military judge’s findings with respect to her claims.” Appel-
lant furthers his argument by citing his acquittal of conspiracy to engage in
pandering and challenging the credibility of witnesses.
Once again, we view the evidence of this offense and all reasonable infer-
ence in a light most favorable to the prosecution. Once again, we find Appel-
lant’s conviction legally sufficient. The military judge in this case could rea-
sonably have found Appellant’s admissions to be corroborated by witness tes-
timony. The military judge could have properly believed some portions of the
witnesses’ testimony and not others. Accordingly, the military judge as fact-
finder could have reasonably found beyond a reasonable doubt that Appellant
was arranging for KW, PW, WK, and others to have sex with people who paid
him money and that such conduct was of a nature to bring discredit upon the
armed forces. Moreover, we a convinced beyond a reasonable doubt that Ap-
pellant is guilty of arranging a service-discrediting “prostitution ring.”
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United States v. Brown, No. ACM 38864
5. Communicating Threats
The military judge convicted Appellant of threatening to injure ME by
paying someone to assault ME and threatening to hurt, injure, or kill Capt
CM and SA JG.
ME was one of Appellant’s roommates. AL testified that she heard Appel-
lant say “he had a hit out or he wanted to like get a hit out for [ME]” because
Appellant thought ME had called law enforcement on him. Senior Airman
(SrA) MH, who was Appellant’s friend, overheard Appellant “saying that he
was looking to find or pay someone to beat [ME] up.” MB, who was confined
with Appellant, recounted Appellant making statements about ME:
He didn’t say whether—I can’t remember whether [ME] owed
him money or somebody said that that he put out a bounty on
[ME] because [Appellant] wanted to get it taken care of, but
whatever the situation happened between those two, [Appel-
lant] put a bounty out and the guy ended up getting in a fight
or got beat up. But he didn’t know who did it, so it was never
paid out, so it kind of just happened.
AB DE further testified, “[Appellant] had offered me, [Appellant] came to my
house and offered me; [Appellant] said ‘I’ll give you $5,000 to anyone that
hurts [ME] or puts him in the hospital.” Appellant was also recorded in con-
finement telling AB DE, “Him, her and [ME], remember that f[****]r I offered
$5,000.00 . . . .”
While in pretrial confinement, Appellant also made a variety of threats
against one of the prosecutors, Capt CM, and one of the investigators, SA JG,
that were communicated to, or overheard by fellow inmates, JG, MB, and AB
DE. Although JG characterized Appellant as “venting,” Appellant was rec-
orded in pretrial confinement surmising, “I think communicating a threat is
my biggest problem.”
On appeal and consistent with his realization in pretrial confinement,
Appellant concludes, “It must be conceded that the evidence demonstrates
multiple statements which support the government’s arguments that [Appel-
lant] made threats about others.” Nevertheless, Appellant maintains that
somebody else threatened ME and that his threats against Capt CM and SA
JG were made “in jest.”
Appellant’s convictions of threatening ME, Capt CM, and SA JG are legal-
ly sufficient. After viewing the evidence of these convictions in a light most
favorable to the prosecution, we reach the conclusion that a rational factfind-
er could have found the essential elements of communicating a threat beyond
a reasonable doubt. We also find Appellant’s convictions factually sufficient,
14
United States v. Brown, No. ACM 38864
as we are convinced beyond a reasonable doubt that Appellant communicated
threats against ME, Capt CM, and SA JG.
6. Unlawfully Entering ML’s Home
The military judge convicted Appellant of unlawfully entering ML’s dwell-
ing in December 2013.
Appellant maintained a relationship with AL, during which time he gave
her his social security card, blank checks, birth certificate, and car keys. Ap-
pellant also bought AL a ring, “pipes,” and “bongs.” ML is AL’s mother. AL
lived with ML in Berthold, North Dakota. Appellant would pick AL up from
her home. AL eventually ended the relationship causing Appellant to request
AL return his “stuff.” AL blocked Appellant’s phone number on her phone,
which prevented her from receiving text messages directly from Appellant’s
phone number.
ML and AL testified about AL’s relationship with Appellant, ML return-
ing some of Appellant’s items to him, and threatening messages AL received
in October 2013 after the relationship ended. AL received these text messag-
es on her mobile phone through “TextNow.com”:
Give me my stuff back please
I’m trying to be nice
If you Dont [sic] you have no idea.......test me
Nobody will ever give u [sh*t] until I get my stuff back I prom-
ise you… I will use every resource I have ever
I HATE you
OK its war b[***]h
....
Are you gonna bring my things please?
....
well when u do plz get me all my stuff back please including
the ring thanks
(1/3) If you Dont [sic] give me my things including the ring by
TOMORROW I promise some girls will go to you and get it and
they will kick your
(2/3) ass.. its been arranged already and you know I have the
influence to make it happen…good luck using another guy for
weed again
(3/3) half the town knows how u f[***]ed me over
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United States v. Brown, No. ACM 38864
During trial, particularly when the prosecution laid the evidentiary foun-
dation for admission of the text messages, inconsistencies arose as to when
ML returned items to Appellant. ML testified that she personally returned
items to Appellant before AL received the aforementioned text messages. AL
initially testified on direct examination as follows:
Q. [AL], did your mom ever give anything back to [Appellant],
that’s the next step you mentioned?
A. Yeah, she gave it all back.
Q. Do you remember when that was?
A. I am not sure.
Q. Was it before or after these text messages, or during these
text messages?
A. It was after I got them, because I showed her them.
Q. So you showed your mom the text messages?
A. Yeah.
Q. Is that what prompted the stuff being returned?
A. Yeah.
The Defense identified this conflict and objected, but the military judge ad-
mitted the exhibit containing the text messages.
AL testified on cross-examination, in pertinent part, as follows:
Q. All right, now, if I understand, after that you at some point
made arrangements with your mom to return property to him,
correct?
A. Yeah.
Q. Why wasn’t that done, if you knew you were going to be
breaking up with [Appellant] why was that not done at the
time you broke up with him?
A. Honestly, I forgot I even had it. It was a bag downstairs, like
I didn’t really like look at it every day. It just kind of didn’t
cross my mind.
Q. How did you end up coming across it, or how did your mom
come across it?
A. I guess, from what I remember, the text of him saying “I
want my stuff back.”
16
United States v. Brown, No. ACM 38864
Q. So after you get the text “I want my stuff back” then you
were thinking about it and you went to find the stuff, correct?
A. Yeah.
Q. And the same day you get the te[x]t that “I want my stuff
back” did you return the stuff to him?
A. I don’t know if it was that exact date, it might have been like
the day after.
Q. All right, did you ever indicate to him that you were not go-
ing to give his stuff back?
A. No.
Q. As far as when it was turned over to him, were you getting
your threats at that particular point, these threatening text
messages; or was that after the fact?
A. I think the threats came after.
Q. Right, so you basically were asked after this break up by
[Appellant], “Can I get my stuff back” and what you did is the
day after your mom took his stuff back to him, correct?
A. Yeah.
Q. Did you go with your mom to do that?
A. What?
Q. Did you go with your mom to do that?
A. No.
Q. So, when your mom came back did she tell you that she had
dropped the stuff off to [Appellant]?
A. Yeah.
Q. So at this particular point there had not been any threats
yet, correct?
A. Not yet.
The military judge later clarified AL’s testimony by referencing AL to the text
messages:
Q. You just testified this morning that you thought it was may-
be the day after you received the text about him wanting his
stuff back that your mom returned it.
17
United States v. Brown, No. ACM 38864
A. Yeah, but I think we were like out of town. I think we were
in Bismarck and I don’t know exactly when she brought it back.
I just know it was like not that long after these.
Q. You mentioned; did you collect the things for your mom to
give them back to him?
A. Yeah.
Q. Like you got the bag?
A. Yeah, they were just already in a bag.
Q. What was in the bag?
A. Social Security card, birth certificate, and his car keys.
Q. What about the ring? Did you return the ring at that time?
A. No. I think we like couldn’t find it or something. I am not
sure, but it wasn’t given back at that time.
Q. Were you aware of anything else that you had that he might
have wanted from you?
A. Um, I guess the pipes and the bongs he bought me.
Q. Were you aware of anyone else wanting something back
from you around this time period?
A. No.
ML testified about “an incident where [her] house was broken into” some-
time in mid-December 2013. ML described going home from work around
lunchtime and “notic[ing] immediately that the door that we have to the
basement was open which is normally closed.” ML explained: “So as I walked
farther into the entryway I could see upstairs and A[L]’s bedroom door was
open, which is never open. And then another bedroom door was open that is
up there, and then I thought ‘somebody has been in the house.’”
ML confirmed that none of her family members had been in the house. Af-
terwards, ML went upstairs and looked around the house. ML observed that
“[n]othing looked like it had been touched,” so she went into the basement.
ML felt a draft on her way to the basement and noticed the curtains on the
basement window were “blowing.” As she got closer, she observed glass on the
floor and that the window had been broken. ML described the window as
large with a plastic covering. ML further described the plastic being “ripped
away” when “they had kicked the window.” ML explained it was “unusual” for
AL’s bedroom door be open because “[AL] always keeps her bedroom door
shut. In fact we keep a lot of the doors shut because we have cats, and we just
like to keep them out of there because of her allergies and stuff. So, but her
18
United States v. Brown, No. ACM 38864
bedroom door is always shut anyway, usually.” ML also confirmed that no
property was missing. On cross-examination, ML testified about the size of
the hole in the window, claiming “An adult male, I guess I just thought about
[Appellant] would fit through it. I know we had speculated that maybe he
had somebody with [him] or something like that.” ML did not see Appellant
at or near her home that day.
MB testified that he and Appellant discussed Appellant’s pending charges
while they were confined together. On direct examination, MB relevantly re-
counted conversations concerning AL as follows:
Q. Let’s talk about [AL]. What do you remember him saying
about [AL]?
A. I guess it was his ex-girlfriend, and I guess they had a break
up and he was missing some documents and some things from
his place, and pretty much she was the reason why he was in
pretrial.
....
Q. I want to bring your attention back to [AL]. Did the accused
ever mention anything about her home, about breaking into
her home?
A. He personally said he had nothing to do with it but one of
his friends or the number 2 in control, [C], and some guys went
over there looking for his stuff. It was never mentioned if any
harm was done to her or if she was there, or anything, or if
they found anything.
Q. When you said number 2 in control or his friend, what did
you mean?
A. I guess with the whole he’s a Crip, he’s number 2 in his
chain of command.
Q. What did you understand a Crip to mean?
A. A gang member.
The military judge also considered an audio-recording of Appellant in pretrial
confinement making the following statement: “Oh, Amity helped rob [AL’s]
house; she drove all the way to Berthold to do it.” KW testified that a “girl”
with the first name “Amity” lived with Appellant.
Appellant argues that “the Government failed to prove that anyone en-
tered the dwelling house of ML,” and “[m]oreover, even if the evidence—
viewed in a light most favorable to the Government—demonstrates that
19
United States v. Brown, No. ACM 38864
someone did enter ML’s home, there is no proof that the person was Appel-
lant or someone he instructed to carry out the crime.”
It is apparent from the record, Appellant was convicted of this offense as a
principal. See Article 77, UCMJ, 10 U.S.C. § 877; see also R.C.M. 307, Discus-
sion (H)(i) (“All principals are charged as if each was the perpetrator.”). A
reasonable factfinder could find likewise. The evidence and all reasonable in-
ferences—when viewed and drawn in a light most favorable to the Prosecu-
tion—establish Appellant’s motivation for unlawfully entering ML’s home,
his intent to do so, and his ability and willingness to command his gang
members to do so. The evidence also suggests that someone broke ML’s
basement window causing a hole large enough for a person to enter the home
and that Appellant admitted a known associate of his, Amity, “helped rob
[AL’s] house [and] drove all the way to Berthold to do it.” Accordingly, Appel-
lant’s conviction of unlawful entry is legally sufficient.
However, we have taken a “fresh, impartial look” at the evidence of this
offense and are not convinced beyond a reasonable doubt that Appellant is
guilty of the offense of unlawful entry. While the evidence establishes the le-
gal sufficiency of Appellant’s conviction, it also raises several possibilities in-
consistent with Appellant’s guilt: that someone other than Appellant’s gang
members entered the house on the occasion ML described; that if members of
Appellant’s gang did go, it was without Appellant’s involvement; or that no
entry actually occurred. Therefore, we set aside Appellant’s conviction of un-
lawful entry and dismiss with prejudice Specification 4 of Charge VII.
7. Distribution of “Mushrooms” on Divers Occasions 8
The military judge convicted Appellant of distributing some amount of
psilocybin, “mushrooms,” on divers occasions.
KW lived with Appellant for a period of time. She testified, among other
things, about receiving mushrooms from Appellant at least five times. She
described eating small mushrooms that made her feel “crazy, hallucinations.”
AL testified about seeing Appellant provide mushrooms to GB. AL de-
scribed Appellant declaring, “Hey, I have some mushrooms,” possessing
“three little chocolate mushrooms,” splitting one with GB, and eating a piece
with GB. AL recounted Appellant’s reaction to the drug, “He was just saying
like that me and [GB] were like witches and that he was scared of us . . . .”
Appellant text messaged AL about this incident, stating, “Outside I thought I
8 Raised pursuant to Grostefon, 12 M.J. 431.
20
United States v. Brown, No. ACM 38864
was in a forest and you two witches were trying to eat me.” On cross-
examination, AL further discussed the mushrooms:
Q. Okay. Now let’s talk about those mushrooms that you are
saying were ingested. Did you ingest any of those?
A. Once, yeah.
Q. Okay and what did they look like?
A. It was a small circular chocolate, with like, you could see
like pieces of shrooms, like in it.
Q. Okay and shrooms meaning mushrooms?
A. Yeah.
Q. Now had you been drinking also?
A. No.
Q. Is this the time you say you saw Captain Brown use mush-
rooms?
A. No.
Q. A different time?
A. Yeah.
Q. When you say you saw him use mushrooms, it was just a to-
tally different occasion? What did they look like if you saw
them?
A. Same thing.
During her testimony, GB recounted an incident almost identical to that
described by AL. GB described Appellant providing her a mushroom
“wrapped in chocolate” when she visited Appellant with AL. GB also de-
scribed Appellant looking at her and saying “he felt like he was in a forest or
something and there was a witch.” GB admitted to eating one of the mush-
rooms Appellant provided, not feeling its effects, and leaving Appellant’s
house for approximately an hour. GB’s testimony on direct examination con-
tinued, in pertinent part:
Q. What happened after an hour?
A. I had left his house, went over to another one of my friend’s
house and then I went back to his house and I eventually ate
another half of one, and then I had gone to Walmart with [AL],
and um, the way it hits you is like say if you go to the bathroom
for example, which was what I did, it hit me like when I was in
the bathroom stall.
21
United States v. Brown, No. ACM 38864
Q. What kind of effects did you feel from it?
A. I felt really kind of like woozy and happy and not like. . . I
kind of felt like I was floating in a way, like everything was re-
ally vibrant and people were staring at me. (Emphasis added).
Appellant discussed mushrooms and his distribution to GB in a conversa-
tion with other confinees that was recorded by investigators:
[Appellant:] “Luckily there was never any pictures taken of the
f[***]ing huge bag of shrooms that I had. I had shrooms with
huge f[***]ing mushrooms caps and s[**]t.”
....
[Appellant:] “No. I got [GB] f[***]ed up on shrooms at Walmart
once. She ended up getting arrested like a couple of hours later.
She was f[***]ed up. That was her first time taking shrooms.
Appellant asserts that his conviction for distributing mushrooms “on di-
vers occasions” is legally and factually insufficient. He acknowledges that
“[v]arious sources indicate that Appellant provided mushrooms to GB on one
occasion.” However, Appellant believes “the military judge convicted [him]
based on either a misunderstanding regarding the sole distribution or her
belief in KW’s testimony.” Accordingly, Appellant renews his unavailing
claim that “[a]s a whole, KW’s testimony is too riddled with inconsistencies to
prove any offense beyond a reasonable doubt. A reasonable factfinder would
disregard her testimony in its entirety . . . .”
Even if a reasonable factfinder disregarded KW’s testimony about Appel-
lant’s distribution of mushrooms to her, a reasonable factfinder could have
nonetheless convicted Appellant of distribution of mushrooms on divers occa-
sions. Appellant concedes one distribution to GB. When viewing the evidence
and all reasonable inferences in a light most favorable to the prosecution, a
reasonable factfinder could have also found beyond a reasonable doubt that
Appellant distributed mushrooms to AL, and when GB returned to his house
after leaving for approximately on hour and ate another half of a mushroom,
Appellant made a second, separate distribution to GB. Unfortunately for Ap-
pellant, the military judge, as a reasonable factfinder may have properly be-
lieved KW’s testimony regarding Appellant’s mushroom distribution despite
her findings on other charged misconduct. Accordingly, we answer the ques-
tion of whether a reasonable factfinder hearing the evidence of Appellant’s
mushroom distribution one way could have found Appellant guilty of distrib-
uting mushrooms on divers occasions in the affirmative; Appellant’s convic-
tion is legally sufficient. Moreover, like the military judge, we are convinced
beyond a reasonable doubt that Appellant distributed mushrooms on two or
more occasions; Appellant’s conviction is factually sufficient.
22
United States v. Brown, No. ACM 38864
B. Discovery 9
Appellant asserts a discovery violation regarding one of the witnesses, AB
DE, who testified against him. AB DE joined the Air Force in 2010. Approxi-
mately two years later in 2012, he met Appellant in Minot, North Dakota. AB
DE and Appellant had a mutual friend and AB DE would frequently “hang
out” with Appellant.
In May 2012, AB DE was detained at a local Walmart for shoplifting. The
responding officer asked AB DE about his age. AB DE replied that he was 18
years old. After the officer continued his efforts to confirm AB DE’s identity
and age, AB DE informed the officer that he was actually 20 years old and
had provided the wrong birth date earlier. AB DE was arrested for shoplift-
ing and providing false information. AB DE was ordered to appear in local
court a few days later for the charge of false information; however, the charge
was dismissed by the county’s prosecuting attorney because the “AF is taking
[jurisdiction].”
In 2013, AB DE was under investigation by military authorities for mari-
juana distribution and steroid use. Appellant was also under investigation at
the time. AB DE and Appellant discussed their investigations. AB DE was
ultimately convicted at a court-martial for marijuana distribution and steroid
use. During the investigation into his offenses, AB DE lied under oath to in-
vestigators. His sentence included 32 months of confinement and a bad-
conduct discharge. AB DE and Appellant were reunited in the Minot AFB
confinement facility, where AB DE starting serving his post-trial confinement
on 13 February 2014 and Appellant was ordered into pretrial confinement.
While in confinement, the two talked about their cases daily.
The Government requested and obtained records of AB DE’s 2012 arrest
for shoplifting and providing false information prior to Appellant’s trial de-
fense counsel’s specific requests for such information. However, the Govern-
ment failed to provide this previously-obtained material to the Defense in re-
sponse to their request.
Appellant argues that the trial counsel’s failure to disclose this infor-
mation about AB DE’s arrest for false information resulted in an unfair trial
“because it would have significantly strengthened the defense’s argument
that [AB] DE lied to advance his own interests; DE not only lied to Air Force
Authorities on one occasion, he lied to civilian law enforcement on [a] sepa-
rate occasion and thus could be said to routinely lie.”
9 Raised pursuant to Grostefon, 12 M.J. 431.
23
United States v. Brown, No. ACM 38864
Trial counsel’s failure to disclose evidence that is favorable to the defense
on the issue of guilt or sentencing violates an accused’s right to due process.
Brady v. Maryland, 373 U.S. 83, 87 (1963). “A military accused also has the
right to obtain favorable evidence under Article 46, UCMJ . . . as implement-
ed by [R.C.M.] 701–703.” United States v. Coleman, 72 M.J. 184, 186–87
(C.A.A.F. 2013). Accordingly, Article 46 and these implementing rules pro-
vide a military accused statutory discovery rights that are greater than those
afforded by the Constitution. See id. at 187; United States v. Roberts, 59 M.J.
323, 327 (C.A.A.F. 2004).
Consequently, there are two categories of disclosure error: (1) cases in
which the defense made no discovery request or merely a general request for
discovery, and (2) cases in which the defense specifically requested the infor-
mation. Coleman, 72 M.J. at 187 (citing Roberts, 59 M.J. at 326–27). The
harmless error standard of review—“whether there is a reasonable probabil-
ity that, had the evidence been disclosed, the result of the proceeding would
have been different”—applies to the first category. Id. (quoting Smith v. Cain,
565 U.S. 73, 75 (2012)). The heightened constitutional harmless beyond a
reasonable doubt standard applies to the second category. Id. “Failing to dis-
close requested material favorable to the defense is not harmless beyond a
reasonable doubt if the undisclosed evidence might have affected the outcome
of the trial.” Id.In reviewing discovery matters, we conduct the following two-step analy-
sis: “first, we determine whether the information or evidence at issue was
subject to disclosure or discovery; second, if there was nondisclosure of such
information, we test the effect of that nondisclosure on [Appellant’s] trial.” Id.(quoting Roberts, 59 M.J. at 325).
Using this analytical framework, we first quickly conclude—and the Gov-
ernment concedes—that the material pertaining to AB DE’s 2012 arrest for
shoplifting and false information was not only subject to disclosure by the
Government, but that the Government was indeed obligated to provide such
information to the Defense.
In testing the effect of this nondisclosure on Appellant’s trial, we apply
the harmless beyond a reasonable doubt standard. AB DE provided testimony
regarding several of the charged offenses; however, most of his testimony was
corroborated by other evidence, to include Appellant’s statements. On direct
examination, AB DE described some of his own misconduct, including buying
drugs from Appellant’s roommate, and he explained how he was convicted by
a court-martial for distribution of marijuana and steroid use and consequent-
ly sentenced to confinement. AB DE’s cross-examination by Appellant’s civil-
ian defense counsel began as follows:
24
United States v. Brown, No. ACM 38864
Q. [AB DE], what were you actually convicted of in your court-
martial?
A. Distribution of marijuana and use of steroids.
Q. What were you sentenced to?
A. Thirty-two months.
Q. How much time do you have left at this point?
A. A little over a year.
Q. When was your action taken, do you know?
A. When was I sentenced?
Q. No, when did the general sign off on your conviction?
A. I don’t know.
Q. You don’t know that?
A. No, sir.
Q. And you were given what type of a discharge?
A. A BCD.
Q. A BCD?
A. Yes, sir.
The cross-examination also notably included the following:
Q. Now, when were there discussions between you and [ET] 10
about the fact that information from [Appellant] could be help-
ful to people in confinement? When was that discussion?
A. What do you mean?
Q. There was discussion between [ET] and other people to the
effect that [Appellant] was basically a Captain facing charges,
and information about him could help people that were in a
post-trial or pretrial confinement situation, was there not?
A. Yes.
....
10 ET was another Airman confined with Appellant during Appellant’s pretrial con-
finement at Minot AFB.
25
United States v. Brown, No. ACM 38864
Q. What was that conversation about?
A. Just the fact that it had to do with helping us out for doing
the right thing.
Q. And helping us out, meaning the other people, other than
the accused, correct?
A. Right.
Q. By getting all their sentences reduced, correct?
A. Correct.
....
Q. Once the knowledge came out amongst you and the other
people that the monitoring devices were there were there dis-
cussions about trying to get the accused to talk about what he
was in there for?
A. Not that I know of.
Q. You did not have that conversation with [ET]?
A. Not that I know of, not that I can remember.
Q. Not that you can remember; did you hear the other people
that were in confinement with you talking about that?
A. The only thing they talked about was the fact they were go-
ing to try to get less time for what he had told them.
AB DE’s cross-examination concluded as follows:
Q. When you came into the Air Force, as you have indicated,
you had never used drugs before, correct?
A. Yes, sir.
....
Q. And then you get involved with drugs, using and possessing,
and distributing drugs, correct?
A. Yes, sir.
Q. Extensively involved, correct?
A. Not extensively.
Q. Well involved enough that you went to a court-martial over
it, correct?
A. Yes, sir.
26
United States v. Brown, No. ACM 38864
Q. What was the amount of marijuana you had?
A. Thirteen point eight ounces.
Q. What is the street value of that?
A. Five thousand dollars.
Q. Five thousand dollars?
A. Somewhere around there.
Q. Okay, so you were somewhat involved in marijuana?
A. Yes, sir.
Q. Correct; and then when you were contacted by OSI, you
were questioned and you flat-out lied to OSI, correct?
A. Correct.
Q. And you knew you were under oath, correct?
A. Yes, sir.
Q. And the reason you lied was because you thought it was to
your advantage to do so, correct?
A. Yes, sir.
Q. And you lied with the specific intention to deceive the people
that you were talking to, correct?
A. Yes, sir.
CDC: Nothing further. Thank you.
There was no redirect examination and the prosecution rested immediate-
ly after AB DE was excused.
At trial, AB DE’s credibility was directly challenged and his motives to
fabricate revealed. AB DE was shown to be a convicted drug distributor, con-
victed drug user, and admitted self-serving liar. AB DE also acknowledged
the potential for receiving some form of “help” in exchange for providing in-
criminating information against Appellant. These matters impacting AB DE’s
credibility would have been self-evident to the military judge. Accordingly, we
have no doubt that confronting AB DE with his lie to police about being 18
rather than 20 years old immediately after his arrest for shoplifting at
Walmart over two years prior to Appellant’s trial would not have affected the
outcome of Appellant’s case. While the conduct of the prosecution in not dis-
closing the 2012 arrest material “was, at a minimum, negligent, and certainly
violated Brady, Article 46, and R.C.M. 701–703, the Government has estab-
27
United States v. Brown, No. ACM 38864
lished that under the circumstances of this case its failure was harmless be-
yond a reasonable doubt.” Coleman, 72 M.J. at 189.
C. Ineffective Assistance of Counsel 11
In general, Appellant alleges his civilian and military trial defense coun-
sel (1) “failed to adequately challenge the testimony of key witnesses despite
possessing evidence that these witnesses previously made contradictory
statements—some of which were sworn”; (2) “failed to object to material evi-
dence offered by the Government, or move to include exculpatory evidence”;
and (3) “failed to properly investigate the case and compile favorable evidence
that was easily accessible through [the Freedom of Information Act].” Appel-
lant consequently concludes “[d]efense counsel’s performance was deficient
and significantly prejudiced Appellant.” 12
In support of his complaints against his trial defense counsel, Appellant
submitted several declarations and documents for our consideration. Accord-
ingly, we ordered and received declarations from his trial defense counsel in
response.
The Sixth Amendment guarantees Appellant the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the pre-
sumption of competence announced in United States v. Cronic, 466 U.S. 648,
658 (1984). See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52
M.J. 312, 315 (C.A.A.F. 2000)).
Accordingly, as a general matter we “will not second-guess the strategic or
tactical decisions made at trial by defense counsel.” United States v. Mazza,
67 M.J. 470, 475 (C.A.A.F. 2009). When Appellant “attacks the trial strategy
or tactics of the defense counsel, [he] must show specific defects in counsel’s
performance that were ‘unreasonable under prevailing professional norms.’”
Id. (quoting United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)). We re-
view allegations of ineffective assistance of counsel de novo. United States v.
Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing Mazza, 67 M.J. at 474).
11 Raised pursuant to Grostefon, 12 M.J. 431.
12In addition to the specific claims addressed in this opinion, we considered all other
ineffective assistance of counsel issues raised by Appellant in his declarations and
briefs pursuant to Grostefon, 12 M.J. 431. We reject those remaining issues as they
require no additional analysis nor warrant relief. See United States v. Matias, 25
M.J. 356, 363 (C.M.A. 1987).
28
United States v. Brown, No. ACM 38864
We utilize the following three-part test to determine whether the pre-
sumption of competence has been overcome:
1. Are appellant’s allegations true; if so, “is there a reasonable
explanation for counsel's actions”?
2. If the allegations are true, did defense counsel’s level of ad-
vocacy “fall measurably below the performance . . . [ordinarily
expected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable
probability that, absent the errors,” there would have been a
different result?
Gooch, 69 M.J. at 362 (citing United States v. Polk, 32 M.J. 150, 153 (C.M.A.
1991)).
We review allegations of ineffective assistance of counsel de novo. Id. (cit-
ing Mazza, 67 M.J. at 474).
1. Failure to Adequately Confront Witnesses
Appellant claims his defense counsel “failed to challenge numerous wit-
nesses on previous inconsistencies or motive to lie.” Appellant then compiles
a “list of these inconsistencies or motives to lie that were not addressed by
defense counsel during cross-examination or elsewhere.” This list includes
Appellant’s complaints with the testimony of KW, AL, JG, AB DE, and SA
NP.
Appellant argues that “KW was the Government’s first and arguably most
important witness.” Appellant maintains that his civilian defense counsel
failed to confront KW with “at least three contradictory, sworn statements to
investigators.” Accordingly, Appellant identifies the following portions of
KW’s testimony: (1) she “woke up to [Appellant] ejaculating on [her] . . .
stomach, and there was some inside [her]”; (2) she denied having previously
experienced “black-outs”; and (3) she “only saw two exchanges of money be-
tween the Appellant and other individuals regarding Appellant’s arranging
for prostitution.” Appellant contends that his civilian defense counsel should
have confronted KW’s testimony on these three points with the following
statements KW previously made to investigators: (1) “I don’t remember all
that night tell [sic] I woke up to him on top of me cumming inside of me”; (2)
“I had a lot of mornings where I would wake up half naked and not know
what happened with a random guy next to me . . . . I started having my
friends stay the night with me to watch me and they would tell me I disap-
peared for a while”; and (3) “I had a lot of mornings where I would wake up
half naked and not know what happened with a random guy next to me. I
watched most of the guys give [Appellant] money.” Appellant also argues that
29
United States v. Brown, No. ACM 38864
his defense counsel should have elicited testimony from KW regarding KW’s
statement that “Appellant got FT pregnant and that [FT] went to Fargo to
get an abortion” because the Fargo clinic—the only abortion clinic in North
Dakota—“indicated that they did not have any records indicating FT visited
the clinic.”
While acknowledging that “some of the allegations made by KW did not
result in a guilty verdict for certain charged offenses,” Appellant maintains
KW’s “overall credibility was crucial to the Government’s case.” According to
Appellant, “[t]he significance of KW’s testimony on the Government’s case is
evidenced in the closing argument of trial counsel, who referenced KW ap-
proximately 40 times.” Therefore, Appellant concludes, “had [trial defense
counsel] adequately cross-examined KW, the military judge would have given
her testimony little weight.”
In response, Appellant’s trial defense counsel explained that they made
the tactical decision not to cross-examine KW with the specific statements
identified by Appellant because they wanted to (1) show Appellant did not
penetrate KW’s vulva; (2) “demonstrate KW was not intoxicated or drugged
during the sexual encounter”; and (3) not introduce evidence of “other times
[KW] saw [Appellant] receive money for having sex with her.” Cross-
examining KW with the statements offered by Appellant would have, in trial
defense counsel’s estimation, defeated those purposes. With respect to KW’s
statement about FT’s abortion, the trial defense counsel assert that KW “did
not have any personal knowledge about the purported abortion but had heard
it from someone else.”
Appellant next directs his allegations towards the testimony of AL, during
which she testified to being in a “relationship” with Appellant. Appellant be-
lieves his trial defense counsel should have confronted AL with a previous
statement in which she “denied any romantic or sexual involvement with Ap-
pellant” and evidence suggesting “[Appellant] was dating [AL].”
Appellant’s trial defense counsel explained that evidence suggesting Ap-
pellant, a commissioned officer who was then 27 years old, was in a romantic
relationship with the 16–17-year-old AL, and seemingly pressuring AL into
sexual encounters with him in exchange for marijuana, would have been
“quite devastating” to Appellant’s case.
Appellant contends that his trial defense counsel should have cross-
examined JG and AB DE about their clemency requests. Consequently, Ap-
pellant maintains “defense counsel never addressed the fact that both JG and
AB DE had a motive to lie about Appellant: they were seeking clemency from
their respective court-martial sentences.”
30
United States v. Brown, No. ACM 38864
Appellant’s trial defense counsel responded to this assertion as well. Ap-
pellant’s trial defense counsel explained that JG provided favorable evidence
to the Defense and there was no need to establish any motive for JG to lie.
Defense counsel further explained that establishing a motive to lie for AB DE
would have opened the door for the admission of a prior consistent statement
that would have more damning that AB DE’s testimony. Consequently, trial
defense counsel decided not to cross-examine these witnesses about their
post-trial clemency requests.
Appellant finally claims that trial defense counsel “actually hurt [his]
case during his cross-examination of SA NP by introducing ET’s work as a
confidential source after the investigation against Appellant.” (Emphasis in
original). Appellant describes evidence from his Article 32, UCMJ, hearing
that indicates ET “worked as a registered OSI source . . . just a short time
prior to gathering information on Appellant.” Without further explanation,
Appellant asserts “this was a significant fact that the military judge should
have considered, as it calls into question the motive of both ET and the inves-
tigators, and would likely have led to an analysis of whether the Government
deliberately elicited statements from Appellant after his Sixth Amendment
right to counsel had attached.” Appellant then concludes, again without fur-
ther analysis, that there “is a reasonable probability that this analysis would
have limited at least portions of the audio recording from being admitted into
evidence.”
ET did not testify, yet Appellant’s trial defense counsel was able to chal-
lenge ET’s motives and credibility through SA NP’s cross-examination. Fur-
thermore, Appellant’s trial defense counsel declared “the confinement record-
ings demonstrate that there was no good faith argument [Appellant] was be-
ing interrogated about charged offenses by an informant after invoking his
rights to counsel.”
Although Appellant identified what he believes to be specific defects in his
counsel’s confrontation of certain witnesses, he failed to show that his coun-
sel’s decisions were unreasonable. Accordingly, we find no reason to second-
guess the sound decisions Appellant’s counsel made with regard to cross-
examining the witnesses identified by Appellant. The trial defense counsel’s
well-reasoned and extensive cross-examination of KW resulted in Appellant
being acquitted of several serious offenses—to include the sexual offenses
against KW. Moreover, trial defense counsels’ decision not to confront AL
about the nature of Appellant’s “relationship” with AL was reasonably in-
tended to prevent more evidence about Appellant’s sordid relationships with
teenage girls from being offered against him. Appellant’s counsel made simi-
larly sound decisions in not cross-examining JG and AB DE about their clem-
ency requests; trial defense counsel reasonably sought to avoid impeaching a
31
United States v. Brown, No. ACM 38864
favorable witness and to prevent prior consistent statements from being of-
fered against Appellant. Likewise, Appellant’s counsel reasonably determined
that the timing of ET’s service as an informant did not impact the credibility
of witnesses nor did it give it rise to a good faith claim that Appellant’s Sixth
Amendment right to counsel had been violated in any way. Such decisions
and conclusions, under the facts of this case, can hardly be found to fall
measurably below the performance ordinarily expected of fallible lawyers.
Even if trial defense counsel’s decisions can be considered ineffective, we find
no reasonable probability that, had these witnesses been confronted as pro-
posed by Appellant, there would have been a different, more favorable result
for Appellant at trial. Appellant failed to establish his counsel were ineffec-
tive in confronting KW, AL, JG, AB DE, and SA NP.
2. Failure to Object or Offer Exculpatory Evidence
Appellant also alleges that his counsel “were deficient in their handling of
key exhibits.” To support this allegation, Appellant argues that his counsel’s
“loss of [a disk containing hundreds of pictures and texts between AL and
Appellant] and subsequent failure to require the text messages be admitted
in their entirety prevented the military judge from accurately assessing AL’s
credibility.”
In response to this allegation, Appellant’s counsel both maintained that
the disk was thoroughly reviewed and the evidence never “lost” as a copy
could be obtained from the Government. Moreover, Appellant’s counsel
agreed that offering the text messages in their entirety would, apart from po-
tentially showing Appellant and AL were in more than a “relationship” as AL
testified, and would “not paint [Appellant] in a positive light.” According to
Appellant’s counsel, these text messages would once again show Appellant, a
27-year-old commissioned officer, in relationship with a 16–17-year-old girl—
a relationship in which he discussed giving her drugs seemingly in exchange
for romantic encounters. The trial defense counsel explained that they “had
the disc when AL testified but made a strategic decision not to use it because
the texts were so harmful to [Appellant].”
Appellant further alleges that “[d]efense counsel similarly failed to re-
quire the audio recordings from the confinement facility be admitted in their
entirety.” Appellant surmises,
Had they done so, the military judge would have been able to
see how much the other inmates prodded Appellant for infor-
mation. She also would have been able to compare the Gov-
ernment’s cherry-picked statements with the full scope of Ap-
pellant’s conversations over a two-week period. Additionally,
the military judge would have heard Appellant deny having sex
32
United States v. Brown, No. ACM 38864
with GB, deny knowing FT’s age, and been able to generally
gauge how much exaggeration and bravado inmates engaged in
while confined.
Appellant’s counsel describe the confinement recordings as “[o]ne of the
most significant problems [they] faced in the case.” Appellant explained to his
counsel that he engaged in these discussions because “he was trying to im-
press the junior enlisted personnel he was confined with.” Both trial defense
counsel concluded the recordings were extremely prejudicial to Appellant—
for example, Appellant initiated conversations about his misconduct; detailed
his own criminal misconduct; “utilized gang and racial terminology”; used in-
appropriate language with junior enlisted personnel; “name-called” his lead-
ership and the legal office; referred to witnesses as “b[****]es”; stated his first
sergeant was a “d[***]head who didn’t do s[**]t for him”; talked “about want-
ing to become an attorney so he could represent organized crime an[d] make a
lot of money”; and “discussed prior allegations for which he received non-
judicial punishment for which the Government never found all of the evi-
dence against him.” According to Appellant’s counsel, the aforementioned ex-
amples are “just a sample of the hours of similar conversations.” Consequent-
ly, trial defense counsel merely wanted to provide context to the limited con-
versations offered by the Government. Trial defense counsel explained that
they wanted to show that Appellant’s statements in the Government’s exhibit
“were just bravado and not true admissions of guilt.” Trial defense counsel
further explained their decision not to play any more of the confinement re-
cordings “as a strategic decision based on what [they] believe was in [Appel-
lant’s] best interest.”
Finally, Appellant claims that his trial defense counsel were deficient in
requesting the military judge take judicial notice of the distance between
Fargo, North Dakota, and Minot, North Dakota, rather than Fargo and
Berthold, North Dakota, which Appellant states is 24 miles farther west. Ap-
pellant concludes that his counsel “should have recognized the difference . . .
and understood that driving farther from Fargo would provide a better alibi”
to the unlawful entry offense.
In response to this claim, Appellant’s counsel agreed that they did request
the military judge take judicial notice of the 300.23 miles. However, Appel-
lant’s military defense counsel asserted that Berthold was actually closer and
made Appellant’s alibi defense more plausible.
We disagree with Appellant and find that his counsel’s decisions not to of-
fer the entirety of Appellant’s text messages with AL and the entirety of his
recorded conversations with enlisted inmates to be more than reasonable giv-
en the content of those communications and the general context of Appel-
lant’s case. Once again, Appellant’s counsel reasonably concluded that evi-
33
United States v. Brown, No. ACM 38864
dence revealing the nature of Appellant’s relationship with a teenaged girl—
that ostensibly included sexual innuendo and drugs—would have damaged,
rather than helped, their case. Appellant’s counsel likewise soundly assessed
the objectively negative impact recordings that captured Appellant, inter alia,
bragging about his crimes, glorifying a criminal lifestyle, degrading superiors
and others, and using racially offensive language would have had on Appel-
lant’s defense. Furthermore, we find that Appellant’s counsel’s request for the
military judge to take judicial notice of the distance between Fargo and Minot
was reasonable. Accordingly, Appellant failed to show that these strategic
evidentiary decisions fell measurably below the performance ordinarily ex-
pected of fallible lawyers. Even if trial defense counsel’s decisions can be con-
sidered ineffective, we find no reasonable probability that had the evidence
championed by Appellant been admitted there would have been a different,
let alone a more favorable, result for Appellant at trial. Appellant failed to
establish his counsel were ineffective in handling these evidentiary matters.
3. Failure to Properly Investigate
Lastly, Appellant alleges that his “[d]efense counsel was deficient in com-
piling favorable evidence for Appellant.” Appellant argues that he, “a legal
layman, was able to obtain . . . materials through his own initiative and while
confined.” Appellant lists the “several materials that would have helped Ap-
pellant,” as follows:
a. A sexual assault allegation against AC. Included in the file is
a transcript of a conversation between Detective MM and KW,
regarding the allegation that AC had sex with KW, then a mi-
nor. During this conversation, KW denied remembering having
sex with AC, her then-fiancé. She later confessed to having sex
with him one to five times.
b. Affidavit from TC, a Minot Police officer, describing AL’s ar-
rest for marijuana on 24 May 2014. After AL’s arrest, she was
taken to the Ward County jail where she denied having any-
thing on her person; however, a Corrections Officer found a
glass smoking device with burnt marijuana and a baggie of ma-
rijuana in her bra.
c. Affidavit of Probable Cause relating to the shoplifting arrest
of DE on 7 May 2012. During this arrest, DE lied to law en-
forcement about his age. The case was later transferred to the
Air Force.
d. Administrative segregation documents, dated 25 June 2014.
[Staff Sergeant (SSgt)] JO testified that Appellant entered seg-
regation on 20 June 2014 and was only there for “two, maybe
34
United States v. Brown, No. ACM 38864
three weeks.” [The documents show] that Appellant’s segrega-
tion began on 6 June 2014 and ended on 20 August 2014; a to-
tal of 75 days.
e. KW’s Facebook post on 3 June 2013, calling Appellant an
“amazing roommate” who knows “how to treat a ladie.” [sic]
f. Photos of Appellant’s apartment taken by the Minot Police
Department.
(Citations omitted).
Appellant then argues that the “records of AC’s sexual assault allegation
. . . and KW’s Facebook posts would have challenged KW’s credibility.” He
maintains that KW lied to law enforcement. Appellant also posits that KW’s
Facebook posts “contradict[] her testimony that Appellant sexually assaulted
her,” and when she “moved out” of Appellant’s apartment. Appellant contin-
ues to support his allegations with the following arguments:
TC’s affidavit would have challenged AL’s credibility; she lied
to [law] enforcement.
DE’s shoplifting record would have challenged his credibility;
he lied to law enforcement.
....
The administrative segregation documents contradict SSgt
JO’s testimony and a memorandum he wrote detailing when
Appellant entered segregation. The military judge relied on
these dates for her ruling regarding illegal pretrial punish-
ment.
....
The photos of Appellant’s apartment taken by the Minot Police
Department show the bed in the far corner of his room. This
would have made it virtually impossible for KW to have wit-
nessed Appellant having sex with GB from the door and in the
dark.
(Citations omitted).
Appellant’s counsel described their pretrial preparation and related inves-
tigation. Appellant’s counsel explained their multiple discovery requests with
the Government and conducting their own investigation of potential Govern-
ment witnesses—including searches of court records and social media. How-
ever, Appellant’s counsel did not discover or obtain the material listed by Ap-
pellant.
35
United States v. Brown, No. ACM 38864
In response to some of Appellant’s specific claims, his counsel maintain
that, even if they had the information cited by Appellant, they would not
have cross-examined KW about her sexual assault allegations against AC be-
cause “AC was an associate of [Appellant] and discussed during the trial as
someone who was part of several of the charged events and this records [sic]
shows him having sex with underage girls, in which part of the charges
against [Appellant] alleged his so-called gang was involved.” Appellant’s
counsel also state that they also would not have cross-examined AL about her
marijuana arrest because “it demonstrated that AL was using marijuana,
which the Government’s evidence demonstrated was coming from [Appel-
lant].” According to Appellant’s counsel, KW’s Facebook post apparently
“came from [Appellant’s] Facebook page” and Appellant’s counsel asked Ap-
pellant’s family members for assistance in obtaining information from Appel-
lant’s Facebook page.
Appellant’s successful efforts in obtaining information about a few wit-
nesses and other material—even while conducted from confinement—do not,
per se, render his counsel ineffective for failing to obtain the same infor-
mation during their pretrial investigation. Indeed, Appellant’s trial defense
counsel had “a duty to make reasonable investigations or to make a reasona-
ble decision that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691. “In considering whether an investigation was thorough, ‘[w]e
address not what is prudent or appropriate, but only what is constitutionally
compelled.’” United States v. Akbar, 74 M.J. 364, 379–80 (C.A.A.F. 2015)
(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). Accordingly, we find that
trial defense counsel took reasonable efforts to investigate and obtain,
through discovery, favorable information in Appellant’s case. Their pretrial
conduct did not fall measurably below the performance ordinarily expected of
fallible lawyers.
Even if Appellant’s trial defense counsel were ineffective in uncovering
the information obtained by Appellant, we find no reasonable probability that
there would have been a different result. First, Appellant was acquitted of
the sexual offenses against KW. Second, AC was not a witness at trial and his
counsel reasonably would not have cross-examined KW about potential, simi-
lar sexual offenses perpetrated by Appellant’s associate. Third, AL’s credibil-
ity was thoroughly examined by trial defense counsel. Additional, less-
damaging impeachment would not have changed the outcome of Appellant’s
case and Appellant has failed to show as much. The information pertaining to
AB DE should have be disclosed by the Government, as previously discussed;
however, this additional impeachment evidence would not have made a dif-
ferent result reasonably probable. In addition, Appellant testified about the
dates he was arguably segregated during pretrial confinement. Therefore, the
military judge was able to consider this information in deciding Appellant’s
36
United States v. Brown, No. ACM 38864
pretrial punishment claims; we find no reasonable probability the “adminis-
trative segregation documents” would have changed the military judge’s rul-
ing. Finally, the photographs of Appellant’s room arguably corroborated por-
tions of KW’s testimony and do not create a reasonable probability of a differ-
ent outcome in Appellant’s trial.
Appellant’s trial defense counsel were not ineffective in their efforts to
uncover favorable information for Appellant. However, assuming Appellant’s
trial defense counsel were ineffective, we further find no reasonable probabil-
ity that, even with the information obtained by Appellant, there would have
been a different result.
D. Pretrial Punishment
Appellant was ordered into pretrial confinement at Minot AFB, North
Dakota. During an “inspection” of the facility’s common sleeping area, mili-
tary confinement officials, for no articulated reason, ransacked that portion of
the facility—throwing and littering the confinees’ items throughout the room.
At one point, a noncommissioned officer ripped the Velcro rank off of Appel-
lant’s parka and threw it across the room. The conduct of these officials was
captured on video.
At trial, Appellant claimed he suffered pretrial punishment and requested
appropriate sentence relief. After receiving evidence, to include the video re-
cordings of the “inspection,” the military judge determined Appellant was en-
titled to sentencing relief for the unreasonable delays in receiving his mail he
experienced while in pretrial confinement. Pertinently, the military judge de-
clined to provide Appellant relief for the conditions of the “inspection,” find-
ing, as fact, the following:
One guard ripped rank off a parka at that time, and threw it,
but not away. No evidence provides context for why the guard
did that, or why they threw things around during the search.
The accused’s things were treated the same or better than the
other confine[e]s. I do not impute intent to punish based on
that search.
....
The accused discussed with [DE] that [he] would try to escape
if he got more than six months’ confinement. That might sug-
gest that the only escape danger was after court-martial and
not before. However, it was reasonable to enforce rules aimed
at preventing escape throughout the period of confinement.
On appeal, Appellant maintains that the confinement officials’ conduct
during the inspection served no legitimate purpose and was punitive in na-
37
United States v. Brown, No. ACM 38864
ture. Appellant again asserts he was subjected to illegal pretrial punishment,
entitling him to “appropriate sentence relief.”
Appellant bears the burden of establishing his entitlement to additional
sentence credit due to illegal pretrial punishment under Article 13, UCMJ.
United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002).
Article 13, UCMJ, provides:
No person, while being held for trial, may be subjected to pun-
ishment or penalty other than arrest or confinement upon the
charges pending against him, nor shall the arrest or confine-
ment imposed upon him be any more rigorous than the circum-
stances required to insure his presence, but he may be subject-
ed to minor punishment during that period for infractions of
discipline.
10 U.S.C. § 813.
The United States Court of Appeals for the Armed Forces (CAAF) out-
lined the contours of Article 13, UCMJ, as follows:
Article 13, UCMJ, prohibits two things: (1) the imposition of
punishment prior to trial, and (2) conditions of arrest or pretri-
al confinement that are more rigorous than necessary to ensure
the accused’s presence for trial. The first prohibition of Article
13 involves a purpose or intent to punish, determined by exam-
ining the intent of detention officials or by examining the pur-
poses served by the restriction or condition, and whether such
purposes are “reasonably related to a legitimate governmental
objective.” Bell [v. Wolfish], 441 U.S. [520,] 539 . . . [(1979)];
[United States v.] McCarthy, 47 M.J. [162,] 165, 167 [(C.A.A.F.
1997)].
The second prohibition of Article 13 prevents imposing unduly
rigorous circumstances during pretrial detention. Conditions
that are sufficiently egregious may give rise to a permissive in-
ference that an accused is being punished, or the conditions
may be so excessive as to constitute punishment. McCarthy, 47
M.J. at 165; United States v. James, 28 M.J. 214, 216 (C.M.A.
1989) (conditions that are “arbitrary or purposeless” can be
considered to raise an inference of punishment).
United States v. King, 61 M.J. 225, 227–28 (C.A.A.F. 2005); see United States
v. Zarbatany, 70 M.J. 169, 174 (C.A.A.F. 2011).
The primary mechanism for addressing violations of Article 13, UCMJ, is
confinement credit. Zarbatany, 70 M.J. at 174.
38
United States v. Brown, No. ACM 38864
“The question whether appellant is entitled to credit for a violation of Ar-
ticle 13 is a mixed question of fact and law.” Mosby, 56 M.J. at 310. A military
judge’s findings of fact, to include a finding of no intent to punish, will not be
overturned unless those findings are clearly erroneous. Id. “We will review de
novo the ultimate question whether [Appellant] is entitled to credit for a vio-
lation of Article 13.” Id.
The military judge’s findings of facts are supported by the record and are
not clearly erroneous; however, we reach a different answer to the ultimate
question of whether Appellant is entitled to credit for a violation of Article 13.
In her analysis, the military judge found “that there was no purpose or intent
by any governmental authority to punish the accused.” After finding unrea-
sonable, excessive delay in screening Appellant’s mail, the military judge
concluded, “All other actions were reasonably related to a legitimate govern-
ment objective.” But even if this was so—and even absent an intent to pun-
ish—the military judge failed to properly consider whether the inspection
was sufficiently egregious as to violate Article 13’s second prohibition. Alt-
hough the search or inspection of the confinement sleeping area may have
been reasonably related to a legitimate government objective, the military
members’ behavior in conducting the search was—like the screening of Ap-
pellant’s mail—excessive. The video recording of the search displays a de-
plorable disregard of any professional expectation or standard. The noncom-
missioned officers conducting the search wantonly, and with apparent
amusement, ransacked the area, throwing confinees’ personal items across
the room and on the floor, flipping bed frames, and tearing the rank off of
Appellant’s parka. Appellant’s items were treated with the same disregard as
the other confinees. The fact that Appellant was subjected to the same egre-
gious condition as others does not eliminate the excessive nature of the condi-
tion. The conditions of this “search” were so excessive as to constitute pun-
ishment. Therefore, we find Appellant is entitled to some relief. After consid-
ering the nature of the Article 13 violation, to include its relatively short du-
ration, we grant Appellant one week of additional confinement credit.
E. Post-trial and Appellate Delay
The convening authority took action on Appellant’s case 228 days after
Appellant’s court-martial due to administrative and processing delays. Appel-
lant’s record of trial was docketed with this court on 11 August 2015. Appel-
lant’s civilian appellate defense counsel requested nine 30-day enlargements
of time to file assignments of error. Each of these requests was granted in
whole, except for the ninth, which was granted in part.
Convicted Airmen have a due process right to timely review and appeal of
courts-martial convictions. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006). In Moreno, the CAAF established a presumption of unrea-
39
United States v. Brown, No. ACM 38864
sonable post-trial delay that requires a due process review when the conven-
ing authority does not take action within 120 days of trial, when a record of
trial is not docketed with us within 30 days of the convening authority’s ac-
tion, and when we do not render a decision within 18 months of the case’s
docketing. Id. at 142.
Accordingly, if there is a Moreno-based presumption of unreasonable de-
lay or an otherwise facially-unreasonable delay, we are required to conduct a
de novo review of Appellant’s case to determine whether his due process right
to a speedy post-trial review and appeal has been violated. Id. at 135. To re-
solve this question, we examine the four factors set forth in Barker v. Wingo,
407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons for the
delay; (3) the appellant’s assertion of the right to timely review and appeal;
and (4) prejudice.” Moreno, 63 M.J. at 135. Moreno identified three types of
prejudice arising from post-trial processing delay: (1) oppressive incarcera-
tion; (2) anxiety and concern; and (3) impairment of ability to present a de-
fense at a rehearing. Id. at 138–39 (citations omitted).
“We analyze each factor and make a determination as to whether that
factor favors the Government or the appellant.” Id. at 136. Then, we balance
our analysis of the factors to determine whether a due process violation oc-
curred. Id. (citing Barker, 407 U.S. at 533) (“Courts must still engage in a dif-
ficult and sensitive balancing process.”). “No single factor is required for find-
ing a due process violation and the absence of a given factor will not prevent
such a finding.” Id. However, where an appellant has not shown prejudice
from the delay, there is no due process violation unless the delay is so egre-
gious as to “adversely affect the public’s perception of the fairness and integ-
rity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006).
Although Appellant experienced at least two periods of presumptively un-
reasonable delay in the post-trial processing and review of his case, he has
not claimed any legally cognizable prejudice from the delays, and we find
none. Appellant also does not assert that his due process right to timely re-
view and appeal had been violated. After conducting our analysis and balanc-
ing of the Barker factors, even considering the length and reasons for the de-
lays, we do not find the delays so egregious that tolerating them would ad-
versely affect the public’s perception of the fairness and integrity of the mili-
tary justice system. See id. Therefore, we find no due process violation. How-
ever, such a finding does not end our review of this matter.
Indeed, Appellant argues that he is entitled to “meaningful relief” in the
form of “day-for-day credit for each day over the 120[-day Moreno] metric” in
accordance with United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), rather
than a due process claim under Moreno. Tardif permits us to consider wheth-
40
United States v. Brown, No. ACM 38864
er we should exercise our power under Article 66(c), UCMJ, 10 U.S.C. §
866(c), to grant relief for excessive post-trial delay. 57 M.J. at 224. In resolv-
ing Appellant’s request for Tardif relief, we are guided by 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), with no single factor being dispositive. 13
The lengthy post-trial administrative delay between Appellant’s case and
action is indefensible. See United States v. Dunbar, 31 M.J. 70, 73 (C.M.A.
1990). However, after balancing the remaining factors, to include our consid-
eration of the delay attributed to Appellant’s civilian appellate counsel, we
conclude no extraordinary exercise of our Article 66(c) authority is warranted
here. Considered as a whole, Appellant’s case has not been subjected to ex-
cessive delay, and we discern no particular harm to Appellant. The delays
have not lessened the disciplinary effect of Appellant’s sentence. The delays
have not adversely affected our ability to review Appellant’s case or grant
him relief, if warranted. The circumstances of Appellant’s case do not move
us to reduce an otherwise appropriate sentence imposed by the military judge
and approved by the convening authority.
F. Sentence Reassessment
Having found Appellant’s conviction of unlawful entry factually insuffi-
cient, we have to consider whether we can reassess his sentence or whether a
sentence rehearing is required.
Indeed, we have “broad discretion” when reassessing sentences. United
States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). The CAAF has re-
peatedly held that if we “can determine to [our] satisfaction that, absent any
error, the sentence adjudged would have been of at least a certain severity,
then a sentence of that severity or less will be free of the prejudicial effects of
error . . . .” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). Thus, our
13 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 wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) keeping in mind that our goal under Tardif is not to analyze
for prejudice, whether there is nonetheless some evidence of harm (either to the ap-
pellant or institutionally) caused by the delay; (4) whether the delay has lessened the
disciplinary effect of any particular aspect of the sentence, and whether relief is con-
sistent with the dual goals of justice and good order and discipline; (5) whether there
is any evidence of institutional neglect concerning timely post-trial processing, either
across the service or at a particular installation; and (6) given the passage of time,
whether this court can provide meaningful relief in this particular situation. Gay, 74
M.J. at 744.
41
United States v. Brown, No. ACM 38864
analysis is based on a totality of the circumstances with consideration of the
following factors: dramatic changes in the penalty landscape and exposure;
the forum; whether the remaining offenses capture the gravamen of the crim-
inal conduct; whether significant or aggravating circumstances remain ad-
missible and relevant; and whether the remaining offenses are the type that
we as appellate judges have experience and familiarity with to reliably de-
termine what sentence would have been imposed at trial. Winckelmann, 73
M.J. at 15–16.
Our decision to dismiss Appellant’s unlawful entry conviction only chang-
es the punitive landscape of this case by six months of confinement. The re-
maining sexual, drug, and gang-related offenses capture the gravamen of Ap-
pellant’s criminal conduct. Moreover, the forum was military judge alone and
we are “more likely to be certain of what a military judge would have done.”
Id. at 16. Given our experience and familiarity with sentences appropriate for
Appellant’s convictions, we are confident that absent any error, the military
judge would have sentenced Appellant to at least a dismissal, confinement for
24 years and 9 months, and forfeiture of all pay and allowances. Accordingly,
a sentence rehearing in not required.
III. CONCLUSION
The finding of guilt to Specification 4 of Charge VII is SET ASIDE and
DISMISSED WITH PREJUDICE. The remaining findings and sentence, as
reassessed, are correct in law and fact, and are AFFIRMED. Article 66(c),
UCMJ. Appellant is credited with one week (seven days) of confinement cred-
it for pretrial punishment suffered in violation of Article 13, UCMJ.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
42