United States v. Lattin ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39859
________________________
UNITED STATES
Appellee
v.
Liam C. LATTIN
First Lieutenant (O-2), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 20 April 2022
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Military Judge: Bryan D. Watson.
Sentence: Sentence adjudged 12 December 2019 by GCM convened at
Luke Air Force Base, Arizona. Sentence entered by military judge on 28
January 2020: Dismissal, confinement for 10 years, and forfeiture of all
pay and allowances.
For Appellant: Major Alexander A. Navarro, USAF; Bethany L. Payton-
O’Brien, Esquire.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Lieutenant Colonel Dayle P. Percle,
USAF; Major John P. Patera, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Judge RICHARDSON delivered the opinion of the court, in which Senior
Judge POSCH joined. Judge CADOTTE filed a separate opinion, dis-
senting in part and in the result.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Lattin, No. ACM 39859
RICHARDSON, Judge:
A general court-martial comprised of officer members convicted Appellant,
contrary to his pleas, of one specification of sexual assault of KA in violation of
Article 120, UCMJ, 10 U.S.C. § 920, Manual for Courts-Martial, United States
(2016 ed.) (2016 MCM), and one specification each of sexual assault and abu-
sive sexual contact of AW in violation of Article 120, UCMJ.1,2 Consistent with
his pleas, Appellant was found not guilty of two other specifications charged in
violation of Article 120, UCMJ.3 The court-martial sentenced Appellant to a
dismissal, ten years in confinement, and forfeiture of all pay and allowances.
The convening authority did not disturb the sentence adjudged.
Appellant, through counsel, raises eight assignments of error, which we
have reordered: (1) whether his convictions were factually and legally suffi-
cient; (2) whether the search of his cell phone violated both the terms of the
authorization and his Fourth Amendment4 right to particularity; (3) whether
the military judge’s omission of the specific intent pled in Specification 5 (abu-
sive sexual contact of AW) from the instructions violated his due process rights;
(4) whether the Government violated his due process rights when it charged
him with sexual assault by bodily harm and then tried and convicted him of
sexual assault upon a person incapable of consenting; (5) whether the military
judge’s admission of testimony relating to AW’s character amounted to plain
error; (6) whether the military judge’s admission of “human lie detector” evi-
dence created plain error; (7) whether the trial counsel’s argument vouching
for a witness and encouraging members to compare the charged offenses was
improper; and (8) whether the trial defense counsel’s failure to object to incom-
plete instructions, improper character evidence, human lie detector testimony,
and improper argument (issues (3), (5), (6), and (7)) amount to ineffective as-
sistance of counsel.
1 Unless otherwise noted, all references in this opinion to the UCMJ, Rules for Courts-
Martial (R.C.M.), and Military Rules of Evidence are to the Manual for Courts-Martial,
United States (2019 ed.).
2 Before arraignment, the Government withdrew and dismissed three other specifica-
tions charged in violation of Article 120, UCMJ.
3 The military judge instructed the members that the two specifications involving KA
were “alleged in the alternative,” and therefore they could not find Appellant guilty of
both. Appellant was convicted of sexual assault of KA by penile penetration, and ac-
quitted of sexual assault by digital penetration. Additionally, Appellant was acquitted
of sexual assault of AW by penile penetration.
4 U.S. CONST. amend. IV.
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Appellant personally raises three additional issues on appeal:5 (9) whether
his sentence to confinement for ten years is inappropriately severe; (10)
whether the military judge erred in giving a false exculpatory statement in-
struction for a general denial of guilt; and (11) whether trial defense counsel
were ineffective for not filing a post-trial motion after the convening authority
neglected to take action in the case. In addition, the court considers the issue
of timely appellate review. We have carefully considered issues (4), (9), and
(10) and determine no discussion or relief is warranted. See United States v.
Matias, 25 M.J. 356, 361 (C.M.A. 1987).
I. BACKGROUND
Appellant was a fighter pilot, assigned to Luke Air Force Base (AFB), Ari-
zona. He lived in nearby Glendale, Arizona, in an apartment close to an enter-
tainment district during the charged time frames.
A. KA
Appellant and KA met in the fall of 2016 while they were enrolled in un-
dergraduate pilot training (UPT). Afterwards, they kept in touch sporadically.
Appellant contacted KA in August 2018 and invited her to a party he would be
attending with other UPT classmates near her duty station in Albuquerque,
New Mexico. At the party, KA and Appellant flirted and engaged in some sex-
ual behavior. Appellant invited KA to visit him, and over the next several
weeks they made arrangements for that visit. They communicated frequently
via text on their phones.
KA flew into Arizona on the evening of Friday, 7 September 2018, and
planned to return on Sunday. The evening she arrived, KA stayed with Appel-
lant at his apartment. KA and Appellant were kissing on his couch, and Ap-
pellant tried to unbutton KA’s pants. KA said no, and Appellant stopped and
asked why. KA said she “didn’t want to,” and Appellant went upstairs and KA
slept on the couch. The next morning, Appellant was “more short with his re-
sponse to anything that [KA] was saying, and more physically distan[t].” This
behavior continued during the rest of her visit.
On Saturday, KA and Appellant, along with several coworkers and friends
of Appellant, went on a five-hour “river float.” KS6 was one of those friends. He
took notice of KA and told Appellant he was interested in her, but was nervous
to talk to her. Appellant responded with encouragement. KS spent about half
of the time on the river float getting to know KA. Alcoholic beverages were
5 See United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
6 KS was Appellant’s peer and fellow officer.
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United States v. Lattin, No. ACM 39859
abundant on the float. KA became intoxicated and her behavior became more
outgoing. During the river float, she and KS talked and kissed. After the river
float, on the bus to the parking lot, KS kissed KA “because she was very in-
sistent,” “really forcing herself on me, asking me to kiss her, make out with
her.” On the ride from the parking lot back to Glendale, KS and KA again were
sitting together, “cuddled.” KS was dropped off at his home first; Appellant and
KA went to Appellant’s apartment. KS arranged with Appellant to come to his
apartment later that day and ask KA on a date.
KA testified that she got “super drunk” during the river float and it caused
gaps in her memory of the rest of that day. She remembered kissing Appellant
once, but that he avoided her during the river float. She remembered talking
to KS during the river float, and then on the ride back entering her phone
number in KS’s phone. Her next memory is in Appellant’s apartment, “being
leaned over an ottoman and facing the kitchen . . . and I felt that there was
penetration or attempted penetration [of her vagina] from behind.” Then Ap-
pellant told her to put her clothes on because KS was coming over.
KS did come over to Appellant’s apartment. With Appellant’s encourage-
ment, KS convinced KA to go to dinner with him. Without her knowledge, KA’s
suitcase was placed in KS’s vehicle and Appellant left his apartment. KS and
KA went to dinner, then back to his apartment, where they engaged in sexual
activity. KS drove KA to the airport the next day. KA remembered very little
of her interactions with KS the day of the river float.
Within five days of returning to Albuquerque, KA filed a restricted report
of sexual assault. She named KS and Appellant as perpetrators. KA told Ap-
pellant in one of their text conversations, “Blackout aka not consent. I accept
your apology. Going forward in the future I hope you don’t let this happen to
anyone else. Because there’s always the potential to unrestrict my report with
the SARC.” Appellant’s conduct in penetrating KA’s vulva with his penis was
the basis for his conviction for sexual assault of KA in violation of Article 120,
UCMJ.
B. AW
AW was an Air Force Reserve Officer Training Corps (ROTC) cadet at the
University of Southern California (USC), in Los Angeles, California. Her
ROTC detachment took a three-day trip to Luke AFB in late January 2019.
The purpose of the trip was to expose the cadets to different career paths. They
arrived by bus on a Wednesday, stayed in a hotel near Luke AFB, and departed
for California on Saturday.
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United States v. Lattin, No. ACM 39859
On that Friday, 25 January 2019, as they toured a fighter squadron build-
ing, AW saw photos of squadron members on the wall and recognized Appel-
lant’s name. AW’s boyfriend, TD, was in Appellant’s ROTC class at USC. TD
ultimately did not commission in the Air Force; he became a police officer.
The ROTC group ended the day at the fighter squadron bar for a “meet and
greet.” The pilots offered the cadets a shot of whiskey, which they eventually
accepted although their ROTC commander (CC) had specified no drinking was
allowed on the trip. AW approached and talked to Appellant, who remembered
TD.
That evening, Appellant contacted AW through Facebook, asking if she
wanted to meet up; she agreed. AW invited Cadet AP, who was in ROTC with
Appellant. Cadet AP decided not to join them because he wanted to bring an-
other cadet along, and AW did not want to “shop talk.” AW felt safe to go out
with Appellant alone because he knew she had a boyfriend, even though she
suspected—based on his messages—he might have “romantic inclinations.”
Appellant picked up AW from her hotel, and took her to his apartment. She
drank one beer at his apartment before they walked to a nearby bar, where she
drank a “whiskey ginger.” They walked to a second bar, and outside that bar
Appellant “grabs [AW’s] waist, pulls [her] in, and tries to kiss” AW. She told
him no, and that she didn’t want to cheat on her boyfriend. Appellant said,
“[O]kay, that’s fine we won’t do it.” AW testified that while at a third bar, she
told Appellant, “[H]ad I not have recently just gotten back together with my
boyfriend I might be more interested in trying to pursue a romantic relation-
ship with him. And I did tell him that I liked him and had a crush on him,” and
AW recalled Appellant’s response being “respectful of [her] not wanting to
cheat.” Cadet AP and another cadet joined them at the third bar briefly. AW
did not leave the bar with the other cadets because she was enjoying talking to
Appellant, and Appellant “was fine” to drive her to her hotel.
After Appellant and AW left the third bar, they walked to Appellant’s
apartment. Appellant “poured another drink and [said] he was unable to drive,
but he turned on a movie.” AW was sitting on a chair, but moved to the same
couch Appellant was on in order to see the television better. Appellant mo-
tioned for AW to lay down, but she did not want to. Appellant lay down, put
his legs on her lap, and then again motioned for her to lay down. Appellant
tickled AW, which resulted in her laying into a “spooning” position, with Ap-
pellant behind her, and holding her in a “bear hug.” Appellant turned AW on
her back and began “forcefully kissing” her. AW protested, but Appellant con-
tinued. AW closed her “lips really tight,” then was able to roll off the couch onto
the floor. Appellant tickled AW in a more aggressive manner, causing her pain.
To get him to stop tickling her, AW moved back to the couch, with Appellant
“also kind of pulling” her. Appellant again tried to kiss AW, and she again
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United States v. Lattin, No. ACM 39859
pursed her lips. AW then described the conduct underlying the two convictions
under review:
At first—I think he’s continuing to tickle me because I remember
at some point trying to pull his fingers off. After trying to kiss
me—at this point in time I’m wearing a quarter zip sweatshirt,
so he pulls the sweatshirt and my bra aside and begins biting
my nipple. And I say “ouch that hurts” [and] he stops. He goes
back to kissing me, and then while he’s kissing me, he begins
pulling my pants down to begin penetrating me with his finger.
Appellant displayed no reaction to AW saying it hurt. AW tensed her mus-
cles, like “into a really stiff plank,” and then Appellant stopped penetrating her
vagina. Appellant asked her what was wrong, and AW said she had “been in a
situation like this before and [she] just didn’t want to do this now.” Appellant
resumed his spooning position and told AW “everything’s fine,” that she is
“safe,” and “everything’s going to be okay” while he was petting her hair. After
a few minutes, Appellant resumed trying to kiss AW. AW was scared and
wanted to leave, but she could not get Appellant off her and could not reach
her phone. AW testified that Appellant then maneuvered AW onto his lap. AW
made herself hyperventilate so Appellant would think she was having a panic
attack. Appellant once again laid with AW in the spooning position. He again
told her “it’s fine” and “everything’s safe,” while petting her hair. He tried to
kiss her again, and said, “come to Hill with me, be my dependent.” Out of fear,7
AW kissed him back. Eventually she starting falling asleep, and Appellant de-
cided they should go to sleep.
AW “repositioned” her clothes and went to the upstairs bedroom—getting
her phone on the way—and Appellant stayed on the couch. Once in the bed-
room, AW began a text conversation with her boyfriend TD. They had texted
earlier in the evening, and TD knew AW was going out with Appellant. AW’s
texts included, “Baby I need help,” “I’m scared,” and “Don’t text back pls.” TD
messaged AW, “[Y]ou passed out at [Appellant’s], he put you in his bed, and
he’s sleeping downstairs. You’re fine, nothing happened.” AW then learned
that TD texted Appellant, and that is what Appellant had told TD. Before TD
texted Appellant—and twice after—AW told TD not to tell anyone; she was
concerned she would get in trouble for having had alcohol on the trip and “the
CC will disenroll [her] for it.” She told TD about the assaults. AW was emphatic
7 AW testified why she was scared: “This violent thing had just happened and now he—
he’s—it seems almost delusional because I’ve said no and I’ve tried to push him off,
and now he seems to be under the impression that I want to continue this relationship
and follow him to his next base.”
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that TD not do anything to cause the local police to be called out to Appellant’s
apartment.
AW fell asleep, and woke when she heard Glendale police officers arrive.
AW spoke to the officers and denied anything was wrong. During trial, AW
explained that she “was evasive of their questions and uncooperative so that
they would leave.” To avoid prompting Appellant to more violence, she thought
her “best plan of action was just to play it cool, act like nothing happened. [She]
was fairly certain that he would drive [her] back to the hotel because if [she]
didn’t get back to the hotel and miss the bus, questions would be asked.” After
the police left, one of the cadets messaged AW. He told her that security forces
personnel were looking for her, and they contacted a senior cadre member,
Capt ST. Shortly thereafter, around 0600, Appellant drove AW to her hotel.
When AW arrived at the hotel, Capt ST was waiting for her in the lobby. AW
did not provide Capt ST details, saying that “things had gotten really out of
hand . . . really quickly.”
After returning to California on 26 January 2019, AW reported what hap-
pened to personnel at the University of California at Los Angeles (UCLA)
Santa Monica Rape Treatment Center. There, AW underwent a sexual assault
forensic examination (SAFE) and an interview with law enforcement. The
SAFE “kit,” comprising a report and the collected evidence, as well as AW’s
statement, was provided to agents of the Air Force Office of Special Investiga-
tions (AFOSI), who interviewed AW on 1 February 2019. Forensic analysis of
the collected evidence indicated Appellant’s DNA was on AW’s left nipple, in-
side her bra, and on the inside front panel of her leggings. Appellant’s conduct
in penetrating AW’s vulva with his finger and touching her nipple with his
mouth was the basis for his convictions for sexual assault and abusive sexual
contact, respectively, of AW in violation of Article 120, UCMJ.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “[I]n resolving questions of legal
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United States v. Lattin, No. ACM 39859
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) (citations omitted). The evidence can be direct or circumstan-
tial. See United States v. Long, 81 M.J. 362, 368 (C.A.A.F. 2021) (citing Rule
for Courts-Martial (R.C.M.) 918 (c)) (additional citation omitted). “[A] rational
factfinder[ ] could use his ‘experience with people and events in weighing the
probabilities’ to infer beyond a reasonable doubt” that an element of an offense
was proven. Id. at 369 (quoting Holland v. United States, 348 U.S. 121, 140
(1954)). “The term reasonable doubt . . . does not mean that the evidence must
be free from conflict.” United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim.
App. 2017) (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)),
aff’d, 77 M.J. 289 (C.A.A.F. 2018). “Court members may believe one portion of
a witness’s testimony but disbelieve others.” United States v. Bare, 63 M.J. 707,
713 (A.F. Ct. Crim. App. 2006) (citing United States v. Harris, 8 M.J. 52, 59
(C.M.A. 1979)). “[T]he standard for legal sufficiency involves a very low thresh-
old to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F.
2019) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct. 1641 (2019).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “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.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
2. Sexual Assault of KA
Appellant urges this court to find his convictions for offenses against KA
legally and factually insufficient. He claims the evidence (1) does not prove
actual penetration, (2) does not prove KA did not consent, and (3) does not dis-
prove Appellant had an honest and reasonable mistake of fact as to consent
and capacity to consent.8
8 Appellant also asks us to find KA’s account not credible “[d]ue to [KA’s] numerous
inconsistencies, motives for fabrication, and the contradictory evidence in the record;”
however, Appellant does not highlight any such testimony or evidence. While we do
not directly address this claim, we considered all the testimony and evidence presented
at the court-martial before making our determinations of legal and factual sufficiency.
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United States v. Lattin, No. ACM 39859
a. Additional Law
As charged, the elements of Specification 1 of the Charge alleging sexual
assault by bodily harm in violation of Article 120, UCMJ, of which Appellant
was convicted, include: (1) that Appellant committed a sexual act upon KA by
causing penetration, however slight, of her vulva with his penis; (2) that Ap-
pellant did so by causing bodily harm to KA; and (3) that Appellant did so
without the consent of KA. See 2016 MCM, pt. IV, ¶ 45.b.(3)(b). The term
“vulva” describes the female external genitalia, including the labia majora and
labia minora. See Approved Change 18-14 (23 Jan. 2019), modifying Military
Judges’ Benchbook, Dept. of the Army Pamphlet 27–9 (10 Sep. 2014) (citing
United States v. Williams, 25 M.J. 854, 855 (A.F.C.M.R. 1988)). “Bodily harm”
includes “any nonconsensual sexual act or nonconsensual sexual contact.” 2016
MCM, pt. IV, ¶ 45.a.(g)(3). “The term ‘consent’ means a freely given agreement
to the conduct at issue by a competent person.” 2016 MCM, pt. IV,
¶ 45.a.(g)(8)(A). An “incompetent person cannot consent.” 2016 MCM, pt. IV,
¶ 45.a.(g)(8)(B). “Lack of consent may be inferred based on the circumstances
of the offense.” 2016 MCM, pt. IV, ¶ 45.a.(g)(8)(C).
The affirmative defense of mistake of fact as to consent requires that an
accused, because of ignorance or mistake, incorrectly believe that another con-
sented to the sexual contact. See R.C.M. 916(j)(1). In order to rely on this de-
fense, the accused’s belief must be honest and reasonable. See id.; United
States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998). Once raised, the Government
bears the burden to prove beyond a reasonable doubt that the defense does not
exist. R.C.M. 916(b)(1); see United States v. McDonald, 78 M.J. 376, 379
(C.A.A.F. 2019). The “burden is on the actor to obtain consent, rather than the
victim to manifest a lack of consent.” McDonald, 78 M.J. at 381. An “[a]ppel-
lant’s actions could only be considered innocent if he had formed a reasonable
belief that he had obtained consent. The Government only need[s] to prove that
he had not done so to eliminate the mistake of fact defense.” Id. “Just because
the actions of the other person may tend[ ] to show objective circumstances
upon which a reasonable person might rely to infer consent, to satisfy the hon-
est prong they must provide insight as to whether [the] appellant actually or
subjectively did infer consent based on these circumstances.” United States v.
Rodela, 82 M.J. 521, 528–29 (A.F. Ct. Crim. App. 2021) (alterations in original)
(internal quotation marks omitted) (quoting United States v. Willis, 41 M.J.
435, 438 (C.A.A.F. 1995)), rev. denied, No. 22-0111, 2022 CAAF LEXIS 278(C.A.A.F. 12 Apr. 2022).
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United States v. Lattin, No. ACM 39859
b. Additional Background and Analysis
i) Penetration
The evidence supporting penile penetration of the vulva consists of KA’s
testimony and Appellant’s statements to others, mostly in the form of text mes-
sages. KA testified about the penetration during the assault:
A [KA]: I remember being leaned over an ottoman and facing the
kitchen. I remember that it was still daylight out, but my vision
was blurry and I felt that there was penetration or attempted
penetration from behind.
Q [Trial Counsel]: What made you feel like that?
A: You could just feel it happening.
Q: What did you feel?
A: Pressure from behind.
Q: And where on your body did you feel that pressure?
A: My vagina.
Q: Do you remember anything else from that memory?
A: So, I’m not sure how long it lasted, but I do remember either
my vision going black, or I had my eyes closed, and I heard him
say, “put your clothes on, [KS is] coming over” and I just remem-
ber thinking why would he be coming over?
In conversations with several people, Appellant stated or implied he had
sex with KA. In a text conversation with one of his friends and fellow officers,
DS, Appellant declared, “And funny thing,” “I was inside her earlier” followed
by several emoji (three faces with tears of joy, winking face with tongue, and
okay hand), then “So [KS] and I might be Eskimo bros in [t]he future. Without
him knowing,” followed by a shushing-face emoji. DS testified that he pre-
sumed “Eskimo brothers” to mean that “both either had or would have had at
some point in the future, intercourse with the same individual.” DS also testi-
fied that he believed Appellant had verbally told him he had had sex with KA.
Appellant’s father testified that Appellant told him he had a “brief sexual en-
counter . . . with [KA]” not long before KS had sex with her. In Appellant’s text
messages to another friend and fellow officer, AS, he said, “Got [KS] bone laid”
followed by three grinning face emoji. AS responded, “Ha [KS] found a lucky
lady?” to which Appellant responded, “No he found me who led him down the
beaten path” followed by three grinning face emoji. AS responded, “Classic re-
join move,” which, as AS testified, in relation to flying jets means to “maneuver
the aircraft to get back together.” None of these conversations regarding sexual
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United States v. Lattin, No. ACM 39859
activity with KA suggest that he used his finger and not his penis when he had
sex with KA.
While Appellant boasted to others about having sex with KA before KS had
sex with her, Appellant denied to KA that they had engaged in any sexual ac-
tivity that evening. In a text conversation following KA’s return home, KA con-
fronted Appellant about his treatment of her, focusing on Appellant “send[ing
her] off with [his] friend” while she was “extremely drunk and incoherent.” At
one point, KA told Appellant, “I’m pretty sure you and I did something back at
your place after the river but again I can only remember short clips.” Appel-
lant’s reply begins, “Woah [KA], first of all we didn’t ‘do anything’ and second
I’m sorry you feel that way.” Later, after KA said she filed a restricted report
of sexual assault, Appellant stated, “Even the fact that you’re putting me in
there when i did nothing to you pisses me off.”9
ii) Without Consent
As charged, the Government was required to prove beyond a reasonable
doubt, that Appellant penetrated KA “without her consent,” as well as that the
act was done by causing bodily harm, that is, an “offensive touching of another,
however slight, including any nonconsensual sexual act or nonconsensual sex-
ual contact.” 2016 MCM, pt. IV, ¶ 45.a.(g)(3). KA testified that, while she was
visiting Appellant in Arizona, the only sexual act with him to which she con-
sented was “making out.” The record contains no evidence that KA consented
to Appellant penetrating her vulva with his penis. In response to a question
from a court member, KA testified that she did not ever tell Appellant she
wanted to have sex with him.
Appellant highlights that KA testified that she did not remember the
events leading up to the assault, to include whether she told Appellant she
consented to that sexual act. In short, Appellant argues that the Government
could not prove KA did not consent because she could not remember her actions
before Appellant penetrated her. Lack of consent can be inferred; it need not
be proven with direct evidence. See 2016 MCM, pt. IV, ¶ 45.a.(g)(8)(C). KA’s
testimony under oath that she did not consent, along with Appellant’s cold in-
teractions with her before and after the act, Appellant’s messages to her deny-
ing they did “anything,” and Appellant’s messages to others implying that he
9 Appellant also denied to KA that he “kicked” her out, telling her “you left on your own
accord,” “you made the decision to leave,” and “i wasn’t trying to be a douchebag from
what you probably think. I figured you two liked each other and were doing your thing.”
Appellant’s texts to KS while KA was at Appellant’s apartment clearly demonstrate
Appellant was urging KS to get KA to leave with him, telling him to “get her suitcase
too,” “[t]ell her to just go with you,” “take her,” and “[g]et her the f[**]k out of my place
please.”
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United States v. Lattin, No. ACM 39859
had sexual intercourse with KA, is enough for a reasonable factfinder to deter-
mine Appellant penetrated KA’s vulva with his penis and without her consent.
iii) Mistake of Fact as to Consent
At trial, Appellant successfully moved to admit evidence under Mil. R.
Evid. 412 that KA and Appellant engaged in sexual acts three weeks before
the assault, and that KA was trying to cultivate a romantic relationship with
Appellant. The military judge ruled that “if KA and [Appellant] engaged in
consensual sexual activities on 11 Aug[ust 20]18, the existence of consent or
mistake of fact as to consent on or about 8 Sep[tember 20]18 may be more
likely.” The military judge continued:
If KA wanted to engage in sexual activity with [Appellant] on
11 Aug[ust 20]18, . . . such may be highly probative to the trier
of fact on both the question of consent and the question of mis-
take of fact as to consent in the instant case. This is particularly
true if KA was attempting to cultivate a long-term relationship
with [Appellant], and especially if she had taken specific actions
in order to pursue a romantic and physical relationship with
[Appellant].
In his draft instructions he provided to the parties, the military judge in-
cluded instructions on consent and on mistake of fact as to consent for all spec-
ifications. The parties did not comment on these instructions on the record.
The military judge then provided the members these instructions before they
began their deliberations.
A viable defense based on mistake of fact as to consent is not supported by
the record. Appellant does not highlight any evidence, and we find none, to
indicate Appellant believed KA consented to him penetrating her vulva with
his penis.10 Instead, Appellant highlights circumstances indicating KA ap-
peared to have the ability to consent. Such circumstances would be some evi-
dence regarding whether a mistaken belief is reasonable.11 However, for the
defense of mistake of fact, whether a belief would be reasonable is inconse-
quential if no such belief existed. Finally, evidence that KA did not appear too
impaired to consent does not support an inference that Appellant believed he
had first obtained consent to engage in the charged conduct.
10 We decline to infer that Appellant boasting about his encounter is circumstantial
evidence of his belief that KA consented to the sexual act.
11 And, on the issue of actual consent, it would be some evidence of whether the other
person had the capacity to consent.
12
United States v. Lattin, No. ACM 39859
While we see the possibility that the Mil. R. Evid. 412 evidence could be
probative on the issues of consent and mistake of fact as to consent, we are not
persuaded this evidence—along with the other relevant evidence introduced at
trial—establishes that Appellant had an honest but mistaken belief that KA
consented to him penetrating her vulva. Therefore, we find no merit to Appel-
lant’s claim that the Government failed to disprove mistake of fact beyond a
reasonable doubt.
3. Sexual Assault and Abusive Sexual Contact of AW
Appellant urges this court to find his convictions for offenses against AW
legally and factually insufficient. He claims AW was not credible, specifically
due to “numerous inconsistencies, motives for fabrication, her destruction of
evidence,12 and the contradictory evidence in the record.”
a. Additional Law
As charged, the elements of Specification 4 of the Charge alleging sexual
assault without consent in violation of Article 120, UCMJ, of which Appellant
was convicted include: (1) that Appellant committed a sexual act upon AW,
specifically by penetrating her vulva with his finger; (2) the penetration was
done with an intent to gratify Appellant’s sexual desires; and (3) that Appellant
did so without the consent of AW. See Manual for Courts-Martial, United
States (2019 ed.) (MCM), pt. IV, ¶ 60.b.(2)(d). “Sexual act” includes penetration
of the vulva of another by any part of the body with an intent to gratify the
sexual desire of any person. See MCM, pt. IV, ¶ 60.a.(g)(1)(C). “The term ‘con-
sent’ means a freely given agreement to the conduct at issue by a competent
person.” MCM, pt. IV, ¶ 60.a.(g)(7)(A). An “incompetent person cannot con-
sent.” MCM, pt. IV, ¶ 60.a.(g)(7)(B).
As charged, the elements of Specification 5 of the Charge alleging abusive
sexual contact without consent in violation of Article 120, UCMJ, of which Ap-
pellant was convicted include: (1) that Appellant committed sexual contact
upon AW, specifically by touching her nipple with his mouth; (2) the touching
was done with an intent to gratify Appellant’s sexual desires; and (3) that Ap-
pellant did so without the consent of AW. See MCM, pt. IV, ¶ 60.b.(4)(d). “Sex-
ual contact” includes touching the breast of another person with an intent to
gratify the sexual desire of any person. See MCM, pt. IV, ¶ 60.a.(g)(2). Consent
in this context is the same as described above in relation to Specification 4. The
12 Appellant claims simply, “both [AW and TD] deleted evidence (text messages and
photographs).” The record indicates AW and TD retrieved messages from the time of
the incident that AW had deleted from her phone but were saved in a cloud account,
and provided those to investigators. The record is unclear whether AW recovered de-
leted photos of her injuries taken after the SAFE.
13
United States v. Lattin, No. ACM 39859
law relating to the affirmative defense of mistake of fact as to consent relevant
to Specifications 4 and 5 is the same as discussed above in connection with
Specification 1.
b. Additional Background and Analysis
i) Motive to Misrepresent
Appellant claims AW made baseless sexual assault allegations against Ap-
pellant to “deflect[ ] attention” from her unauthorized use of alcohol and to
“hide her consensual sexual behavior in which she cheated on” her boyfriend.
We find these claims unpersuasive. The record indicates AW’s commander was
not aware that cadets had been drinking alcohol until after AW made her re-
port of sexual assault. Similarly, AW’s boyfriend was not aware Appellant en-
gaged in sexual activity with AW or that AW was “scared” while at Appellant’s
apartment until AW told him. The spotlight was not on AW such that she
needed to “deflect” or “hide,” nor did she anticipate it would be.
ii) Misrepresentation and Credibility
Appellant claims AW “gave numerous inconsistent stories” about how the
assault occurred and that she deleted text messages and photographs. We have
considered these claims with our review of the record, and find them uncon-
vincing.
We conclude that a rational factfinder could have found beyond a reasona-
ble doubt all the essential elements of Appellant’s convicted offenses. Further-
more, in assessing factual sufficiency, after weighing all the evidence in the
record of trial and having made allowances for not having personally observed
the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt.
Therefore, we find Appellant’s convictions both legally and factually sufficient.
B. Motion to Suppress Evidence from Appellant’s Cell Phone
Before trial, the Defense moved to suppress text messages found as a result
of searching Appellant’s cell phone. The military judge denied the motion, and
the Government introduced several exhibits containing messages between Ap-
pellant and others, to include AW, TD, KA, KS, Appellant’s father, and DS.
Appellant asserts the military judge erred by denying his motion to sup-
press evidence obtained from a search of his cell phone because the search vi-
olated the terms of the authorization, and the search authorization violated his
Fourth Amendment right to particularity. Appellant challenges all messages
gathered from his phone, as well as messages gathered from other sources that
relate to KA. We consider Appellant’s specific assertions that (1) the search
continued past the date the authorization expired, (2) the scope of the search
was overbroad, (3) the inevitable-discovery doctrine does not apply, (4) the
good-faith doctrine does not apply, and (5) the exclusionary rule should apply
14
United States v. Lattin, No. ACM 39859
as a deterrent measure. We decide issues (1), part of (3), and (5) against Ap-
pellant.
1. Additional Background
AFOSI Special Agent (SA) LB prepared an Air Force Form 1176 (AF
1176),13 along with an affidavit. On 13 February 2019, she presented these doc-
uments to Appellant’s group commander (“search authority”) who had author-
ity to grant a search authorization with respect to Appellant. Also present at
this meeting was a judge advocate.
The affidavit accompanying the AF 1176 referenced AW’s report to the
UCLA police department, which noted AW’s text messages with her boyfriend
TD about the incident as well as text messages between TD and Appellant. The
affidavit did not mention communications between AW and Appellant.
SA LB testified at the hearing on the defense motion to suppress. She ex-
plained that before she sought search authorization, she understood that AW
told the “Los Angeles agent” that “there were text messages between her and
[Appellant], her and [TD].” She wanted the authority to search Appellant’s
phone for “communications between [Appellant] and [AW] and between [Ap-
pellant] and TD. . . . and ensure that [the messages] were actually from [Ap-
pellant’s] phone.” She believed she orally told the search authority that there
were messages between AW and Appellant. SA LB agreed on cross-examina-
tion that “there was no other information as far as what other . . . information
existed in this world that would indicate anything outside of that” would be
found on Appellant’s phone, adding, “I guess no other – nothing else to lead me
to believe there would be anything on the phone other than those [text mes-
sages].”
The search authority signed the AF 1176, stating he authorized a search of
Appellant’s person and property, specifically Appellant’s DNA and his “mobile
device with biometric access.” This search authorization did not specify what
the investigators were authorized to search, seize, and analyze from the mobile
phone. The search authority did not testify at the hearing on this motion.14
When the agents executed the authorization and seized Appellant’s phone,
Appellant told an agent that it was a new phone and, “The messages that you
are looking for are still on there,” or words to that effect.
SA LB searched Appellant’s phone for text messages by opening its mes-
sage application. SA LB explained, “the way the I-phone works is it shows all
13 Air Force Form 1176, Authority to Search and Seize (Mar. 2016).
14 Trial counsel told the military judge that the search authority was out of the country
and was unable to be reached.
15
United States v. Lattin, No. ACM 39859
the recent messages first, by contact, and then the only text that shows up is
the most recent text message exchange.” She then “did a precursory real quick
[search] to identify any other witnesses in the case, and to see if [she would]
find [AW’s] and [Appellant’s] – or [AW’s] and [TD]’s text messages.” She noted
AW and TD were not saved as contacts, but she “knew the phone numbers and
[she] knew what phone numbers to look for.” She recognized the name of one
contact as a defense counsel, and specifically did not look through messages
involving that contact, explaining that the attorney-client privilege limited her
authority to search.
In addition to scanning the most recent text messages, she did key word
searches, including “OSI,” to find out whether any texts were relevant to her
investigation of AW’s reported sexual assault. SA LB did not testify that she
was able to limit her word searches to a specific time frame. SA LB also looked
at conversations with individuals who were not saved as contacts in Appel-
lant’s phone and identified only by telephone number, “just to see who it was
or what they were talking about.” She found messages that she believed indi-
cated KA was sexually assaulted by KS and Appellant was a potential witness.
SA LB explained that because AFOSI is “required to investigate an allegation
of sexual assault we come across even though it stated that she had filed a
restricted report[, w]e had to initiate an entire sexual assault investigation.”
When AFOSI agents interviewed Appellant as a witness about that other
alleged sexual assault of KA, he provided them the name of DS. AFOSI agents
interviewed DS, who relayed Appellant sent him a text message15 that stated
something like “Funny thing is I was inside her earlier,” referring to KA. At
this point in her investigation, SA LB “had no reason to believe” any sexual
activity between Appellant and KA was nonconsensual.
When AFOSI agents first contacted KA and asked if she knew Appellant,
she was surprised and then upset; KA’s report of sexual assault was restricted.
At trial, she explained she decided to cooperate with AFOSI:
Knowing that there was another victim and that he—after I con-
fronted him apparently he didn’t learn from the mistake with
me, and that he went and did something to somebody else possi-
bly worse. So that motivated me to come forward and help out
with the case with my story.
KA had never met AW.
Appellant’s mobile phone locked itself while in AFOSI’s possession. SA LB
had not been able to perform a data extraction because the phone was a new
15 This message was located on DS’s phone, but not on Appellant’s phone.
16
United States v. Lattin, No. ACM 39859
model. Therefore, she sent the phone to the Defense Computer Forensics La-
boratory (DCFL) to examine and analyze text messages pertaining to sex of-
fenses. SA LB testified that she requested DCFL examine Appellant’s phone
for messages relating to the investigation of KS as well as Appellant. DCFL’s
examination yielded evidence of Appellant’s communications concerning KA
and AW.
2. Law and Analysis
a. Standards of Review
“The exclusionary rule is a judicially created remedy for violations of the
Fourth Amendment.” United States v. Wicks, 73 M.J. 93, 103 (C.A.A.F. 2014)
(citation omitted). The President has applied the rule to the military, through
Mil. R. Evid. 311(a):
Evidence obtained as a result of an unlawful search or seizure
made by a person acting in a governmental capacity is inadmis-
sible against the accused if: (1) the accused makes a timely mo-
tion to suppress or an objection to the evidence under this rule;
(2) the accused had a reasonable expectation of privacy in the
person, place, or property searched . . . ; and (3) exclusion of the
evidence results in appreciable deterrence of future unlawful
searches or seizures and the benefits of such deterrence out-
weigh the costs to the justice system.
We review a military judge’s ruling on a motion to suppress evidence based
on a Fourth Amendment violation for an abuse of discretion. United States v.
Khamsouk, 57 M.J. 282, 286 (C.A.A.F. 2002) (citation omitted). “[T]he abuse of
discretion standard of review recognizes that a judge has a range of choices
and will not be reversed so long as the decision remains within that range.”
United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citation omitted). How-
ever, “[a] military judge abuses his discretion when his findings of fact are
clearly erroneous, when he is incorrect about the applicable law, or when he
improperly applies the law.” United States v. Roberts, 59 M.J. 323, 326
(C.A.A.F. 2004). “In reviewing a ruling on a motion to suppress, we consider
the evidence in the light most favorable to the prevailing party.” United States
v. Cowgill, 68 M.J. 388, 390 (C.A.A.F. 2010) (citation omitted). “We review de
novo questions regarding whether a search authorization is overly broad.”
United States v. Richards, 76 M.J. 365, 369 (C.A.A.F. 2017) (citing United
States v. Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996)).
b. Fourth Amendment Protection
Data stored within a cell phone falls within the protection of the Fourth
Amendment. Wicks, 73 M.J. at 99. When a person sends letters, messages, or
17
United States v. Lattin, No. ACM 39859
other information electronically, their “Fourth Amendment expectation of pri-
vacy diminishes incrementally” as the receivers can further share the contents.
Maxwell, 45 M.J. at 417. “Modern cell phones, as a category, implicate privacy
concerns far beyond those implicated by the search of a cigarette pack, a wallet,
or a purse.” Riley v. California, 573 U.S. 373, 393 (2014). Such phones have a
“[multiple gigabyte] capacity with the ability to store many different types of
information: Even the most basic phones that sell for less than $20[.00] might
hold photographs, picture messages, text messages, Internet browsing history,
a calendar, a thousand-entry phone book, and so on.” Riley, 573 U.S. at 394. “A
search authorization . . . for an electronic device[ ] must adhere to the stand-
ards of the Fourth Amendment of the Constitution.” Richards, 76 M.J. at 369.
In United States v. Osorio, this court addressed requirements regarding
search warrants for computers—and by extension for stored electronic or digi-
tal media—when evidence of another crime is discovered, stating,
[T]here must be specificity in the scope of the warrant which, in
turn, mandates specificity in the process of conducting the
search. Practitioners must generate specific warrants and
search processes necessary to comply with that specificity and
then, if they come across evidence of a different crime, stop their
search and seek a new authorization.
66 M.J. 632, 637 (A.F. Ct. Crim. App. 2008).
“Searches of electronic devices present distinct issues surrounding where
and how incriminating evidence may be located.” Richards, 76 M.J. at 370. The
United States Court of Appeals for the Armed Forces (CAAF) further ex-
plained:
In charting how to apply the Fourth Amendment to searches of
electronic devices, we glean from our reading of the case law a
zone in which such searches are expansive enough to allow in-
vestigators access to places where incriminating materials may
be hidden, yet not so broad that they become the sort of free-for-
all general searches the Fourth Amendment was designed to
prevent.
Id.c. Search Authorization Expiration
The military judge addressed the assertion that the search authorization
expired three days after it was issued. He found that, by its terms, the search
authorization required initiation of the search within three days. He further
found that on the first day after receiving authorization, SA LB “conducted an
immediate search of the phone when she performed a scroll search and took
18
United States v. Lattin, No. ACM 39859
steps to prevent the phone from locking.” As SA LB initiated the search within
those three days, “[AF]OSI was allowed to take further steps in analyzing and
collecting [Appellant’s] cellular data thereafter.” We find the military judge did
not err in his findings of fact and conclusions of law regarding Appellant’s claim
that the authorization to search had expired.
d. Search Authorization Scope
The military judge noted “[t]he Defense does not challenge the validity of
[the commander’s] search authorization, per se; instead, it challenges primarily
the scope of the authorizations,” then concluded that the commander “had a
substantial basis for determining that probable cause existed for the AFOSI
agent to search the accused’s phone.”16 In his analysis on potential deterrence
of SA LB, he stated that “[i]f an error exists in this case, the error rests with
the issuing commander who signed the [AF]1176 without it indicating a more
narrow scope of his search authorization.” Similarly, here Appellant challenges
the scope rather than the basis for the search authorization.
An overly broad warrant can result in a general search prohibited by the
Fourth Amendment, an issue we review de novo. Maxwell, 45 M.J. at 420. “The
fact that the [warrant] application adequately described the ‘things to be
seized’ does not save the warrant from its facial invalidity. The Fourth Amend-
ment by its terms requires particularity in the warrant, not in the supporting
documents.” Groh v. Ramirez, 540 U.S. 551, 557 (2004) (citing United States v.
Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999) (“The Fourth Amendment re-
quires that the warrant particularly describe the things to be seized, not the
papers presented to the judicial officer . . . asked to issue the warrant.”) (omis-
sion in original) (additional citation omitted)).
In Groh, the warrant stated the items to be seized consisted of a “single
dwelling residence . . . blue in color.” Id. at 558 (omission in original). While
the affidavit accompanying the application for the warrant described things to
be seized, including firearms and receipts, the warrant neither described those
things nor incorporated any items from the affidavit by reference. The United
States Supreme Court found the warrant failed to describe the items to be
seized at all, and it was “so obviously deficient that we must regard the search
as ‘warrantless’ within the meaning of our case law.” Id.
In this case, the military judge did not make any findings of fact as to the
scope of the search authorization. Instead, he concluded: “The search authori-
zation was not overbroad, and SA [LB]’s subsequent manual searches of the
16 We agree with the military judge that probable cause existed to search Appellant’s
phone—at least for text messages between Appellant, AW, and TD which were sent
around the time of the sexual assault.
19
United States v. Lattin, No. ACM 39859
accused’s phone were within the scope of [the search authority’s] authoriza-
tion.” Unlike the military judge, we find the search authorization was over-
broad in scope. It authorized a search of the “mobile device” writ large and
failed to identify the data contained on the device for which the Government
had probable cause to seize, i.e., text messages related to AW’s allegation of
sexual assault. Thus, the searches based on this search authorization were un-
lawful under the Fourth Amendment and are subject to exclusion. We next
consider exceptions to the exclusionary rule.
e. Good Faith Exception
“Under the ‘good faith’ exception to the exclusionary rule, evidence obtained
pursuant to a search warrant that was ultimately found to be invalid should
not be suppressed if it was gathered by law enforcement officials acting in rea-
sonable reliance on a warrant issued by a neutral and detached magistrate.”
United States v. Hernandez, 81 M.J. 432, 440 (C.A.A.F. 2021) (citing United
States v. Leon, 468 U.S. 897, 918 (1984)). “The good-faith exception is a judi-
cially created exception to th[e] judicially created [exclusionary] rule.” Davis v.
United States, 564 U.S. 229, 248–49 (2011). The Supreme Court in Davis held
that the “blameless police conduct” in that case—acting in accordance with
binding legal precedent at the time—“comes within the good-faith exception
and is not properly subject to the exclusionary rule.” Id. at 249; cf. Mil. R. Evid.
311(c)(4) (providing an exception separate from the good-faith exception for
searches involving “objectively reasonable reliance on a statute or on binding
precedent later held violative of the Fourth Amendment”).
The Supreme Court identified four circumstances in which the “good faith
exception” will not apply: (1) where the magistrate “was misled by information
in an affidavit that the affiant knew was false or would have known was false
except for his reckless disregard of the truth;” (2) where the magistrate “wholly
abandoned his judicial role;” (3) where the warrant was based on an affidavit
“so lacking in indicia of probable cause as to render official belief in its exist-
ence entirely unreasonable;” and (4) where the warrant is so “facially deficient
. . . in failing to particularize the place to be searched or the things to be seized
. . . that the executing officers cannot reasonably presume it to be valid.” Leon,
468 U.S. at 923 (citations omitted).
Mil. R. Evid. 311(c)(3) provides that evidence obtained through an unlawful
search may be used if:
(A) the search or seizure resulted from an authorization to
search, seize or apprehend issued by an individual competent to
issue the authorization . . . [or warrant] . . .;
20
United States v. Lattin, No. ACM 39859
(B) the individual issuing the authorization or warrant had a
substantial basis for determining the existence of probable
cause; and
(C) the officials seeking and executing the authorization or war-
rant reasonably and with good faith relied on the issuance of the
authorization or warrant.
The CAAF has harmonized the four Leon exceptions with the three require-
ments under Mil. R. Evid. 311(c)(3). “[Mil. R. Evid.] 311(c)(3)(B) addresses the
first and third exceptions noted in Leon, i.e., the affidavit must not be inten-
tionally or recklessly false, and it must be more than a bare bones recital of
conclusions,” and “[Mil. R. Evid.] 311(c)(3)(C) addresses the second and fourth
exceptions in Leon, i.e., objective good faith cannot exist when the police know
that the magistrate merely rubber stamped their request, or when the warrant
is facially defective.” Hernandez, 81 M.J. at 44041 (internal quotation marks
and citations omitted) (citing United States v. Carter, 54 M.J. 414, 421
(C.A.A.F. 2001)).
“Good faith is to be determined using an objective standard.” Mil. R. Evid.
311(c)(3)(C). The “‘good-faith inquiry is confined to the objectively ascertaina-
ble question whether a reasonably well trained officer would have known that
the search was illegal’ in light of ‘all of the circumstances.’” Herring v. United
States, 555 U.S. 135, 145 (2009) (quoting Leon, 468 U.S. at 922 n.23). We fur-
ther “consider the objective reasonableness, not only of the officers who even-
tually executed a warrant, but also of the officers who originally obtained it or
who provided information material to the probable-cause determination.”
Leon, 468 U.S. at 923 n.24.
The military judge considered and found no exceptions as outlined in Leon,
468 U.S. at 92324, to bar application of the good-faith doctrine in this case. In
particular, he concluded “[t]he search authority [sic] was not facially deficient.”
We disagree, and find the fourth Leon exception clearly applies in this
case—that the search authorization was facially deficient in not limiting the
scope of the search such that investigators cannot reasonably have presumed
it to be valid. The scope of the search authorization on its face was “mobile
device with biometric access,” with no indication of what to look for inside the
device. That may have been sufficient if the item of interest was the phone
itself instead of information contained within it. But here the search authori-
zation allowed the search of all data in Appellant’s mobile phone for any pur-
pose. SA LB drafted the search authorization and believed that when there is
“probable cause for anything on the phone, [she] can search everything on the
phone” because “[i]f the warrant allows for the entire phone to be seized, then
all the data on the phone becomes property of the [G]overnment and can be
21
United States v. Lattin, No. ACM 39859
searched at any time.”17 SA LB was wrong in her belief that the law allows
such a broad search. The fact that SA LB initially limited her search of the
phone to any evidence of Appellant’s crime against AW does not change the
clearly overbroad nature of the search authorization. We find the search au-
thorization to be facially deficient, and that those executing the search reason-
ably should have noticed the deficiency. Thus, we find the good-faith exception
does not apply and that SA LB’s search based on the deficient authorization
was warrantless. See Groh, 540 U.S. at 558.
f. Inevitable Discovery
“Evidence that was obtained as a result of an unlawful search or seizure
may be used when the evidence would have been obtained even if such unlaw-
ful search or seizure had not been made.” Mil. R. Evid. 311(c)(2). As the CAAF
has explained:
The doctrine of inevitable discovery allows for the admission of
illegally obtained evidence when the [G]overnment “demon-
strate[s] by a preponderance of the evidence that when the al-
leged illegality occurred, the [G]overnment agents possessed, or
were actively pursuing, evidence or leads that would have inev-
itably led to the discovery of the evidence in a lawful manner.”
United States v. Eppes, 77 M.J. 339, 347 (C.A.A.F. 2018) (second alteration in
original) (quoting Wicks, 73 M.J. at 103); see also United States v. Hoffman, 75
M.J. 120, 12425 (C.A.A.F. 2016). “The doctrine may apply where it is reason-
able to conclude officers would have obtained a valid authorization had they
known their actions were unlawful.” Id.“Evidence derived from an unlawful search constitutes ‘fruit of the poison-
ous tree’ and is subject to exclusion.” United States v. Garcia, 80 M.J. 379, 388
(C.A.A.F. 2020) (citations omitted). “The only true poisonous fruit is evidence
that was gathered as a result of the unlawful search.” Id. at 389.
Appellant asserts that when SA LB searched Appellant’s phone, “[AF]OSI
had no knowledge of [KA], [DS], or any text messages from the weekend of 8
September 2018. Had the authorization been appropriately particularized in
scope, these messages would never have been discovered.”
17 While SA LB may have been referring to the concept that a person has no expectation
of privacy in a Government-created copy of their personal data, she searched the Ap-
pellant’s actual phone and was unable to make a copy. See, e.g., United States v. Lutcza,
76 M.J. 698, 702 (A.F. Ct. Crim. App. 2017); United States v. Campbell, 76 M.J. 644658 (A.F. Ct. Crim. App. 2017).
22
United States v. Lattin, No. ACM 39859
The military judge’s analysis of inevitable discovery was limited to quoting
with approval the Government’s response to the Defense motion. That re-
sponse stated, in part, “By the time that [SA LB] requested DCFL perform a
data extraction and forensic report, she had been provided with incriminating
text messages from both [DS] and KA. This, together with the fact that [Appel-
lant] had a habit of discussing sexual encounters via text message, [SA LB]
could have very easily applied for an additional AF [ ] 1176 to get authorization
to look deeper into [Appellant’s] phone if it had been necessary.”
The military judge’s adopted reasoning overlooks the fact that those “in-
criminating text messages” and Appellant’s “habit” were discovered initially
through SA LB’s unlawful search of Appellant’s phone. The Government has
not shown by a preponderance of evidence that such communications and habit
were discoverable, much less discovered, from other investigative actions.
Any evidence SA LB found as a result of her unlawful search of Appellant’s
phone was tainted and could not form the basis of a new search authorization
or any other method leading to their discovery. We see little evidence that
SA LB or other AFOSI agents were working on other leads regarding who Ap-
pellant might have messaged about his sexual encounters, his encounters with
AW specifically, or his encounters with KA.18
Regarding Appellant’s text messages with AW and TD relating to the al-
leged sexual assault of AW, we find those inevitably would have been discov-
ered. Had SA LB known her search authorization was invalid, we are confident
she would have presented to the search authority an authorization properly
narrowed in scope and received approval in return. We are not convinced, how-
ever, that such authorization would include a search through all of Appellant’s
text messages for any evidence that might be relevant to AW’s allegation of
sexual assault, as investigators had no reason to believe such evidence existed.
Similarly, we cannot presume SA LB’s search for other types of information,
other sexual encounters, other time periods, and the word “OSI” would have
been within the scope of a valid search authorization. Thus, it is not inevitable
that evidence of Appellant’s sexual assault of KA would have been discovered.
18 SA LB testified that other AFOSI agents interviewed pilots who interacted with the
cadets on the AFROTC trip, and she believed KS was interviewed. The agents did not
ask KS whether he communicated with Appellant via text message. When SA LB read
messages with KA, she saw reference to someone she believed was KS, whom she knew
was friends with Appellant. SA LB then initiated an investigation into KS’s conduct
with KA, which ultimately resulted in no prosecution.
23
United States v. Lattin, No. ACM 39859
g. Plain View
[O]ne exception to the warrant requirement for items not other-
wise subject to a lawful search is the plain view doctrine, which
allows law enforcement officials conducting a lawful search to
seize items in plain view if they are acting within the scope of
their authority and have probable cause to believe the item is
contraband or evidence of a crime.
United States v. Gurczynski, 76 M.J. 381, 387 (C.A.A.F. 2017) (citing United
States v. Fogg, 52 M.J. 144, 149 (C.A.A.F. 1999)).
The plain view doctrine permits an investigator to seize evidence, without
a warrant or search authorization, if that “person while in the course of other-
wise lawful activity observes in a reasonable fashion . . . evidence that the per-
son has probable cause to seize.” Mil. R. Evid. 315(c)(5(C); see also Fogg, 52
M.J. at 14950.
The military judge concluded that SA LB was “lawfully in the location
where she saw the evidence.” This conclusion, of course, flows from the military
judge’s previous conclusion that the search authorization was not overly broad.
As we find it was overbroad—and the good faith doctrine does not apply—
SA LB was not lawfully permitted to search Appellant’s phone. As such, SA LB
could not have been “in the course of otherwise lawful activity” while she was
reading the messages, ergo the plain view doctrine does not apply.
h. Exclusionary Rule and Deterrence
Finally, we consider whether evidence obtained through an unlawful
search, and for which no other exception to the exclusionary rule applies, must
be excluded in this case as a deterrent measure that outweighs the “substantial
social costs.” Leon, 468 U.S. at 907. In this regard, we consider whether the
search authority’s or SA LB’s actions were “deliberate, reckless, or grossly neg-
ligent” or part of “recurring or systemic negligence.” We find they were not and
that exclusion is not warranted. Herring, 555 U.S. at 144.
At the hearing on the defense motion to suppress, SA LB explained the pro-
cess she used to obtain authority to search Appellant’s phone. She stated, “It’s
standard protocol for us to draft the affidavit [supporting the search authori-
zation], and then have the legal office review it to ensure that . . . there is prob-
able cause.” Moreover, a judge advocate from the base legal office was present
when she briefed the search authority.19 SA LB said the search authority was
19 The judge advocate also testified, but remembered very little about the scope of the
search authorization.
24
United States v. Lattin, No. ACM 39859
familiar with the case, and asked some questions, including about the bio-
metric aspect of the authorization.
On cross-examination, trial defense counsel asked SA LB about her under-
standing of the scope of the search authorization:
Q [Trial Defense Counsel]: And you looked at the messages be-
tween [Appellant] and the unknown number that was [ ] later
determined to be [KA]?
A [SA LB]: Yes. So the probable cause gives us authority to
search the phone for any evidence of the specific crime, so look-
ing through [KS’s] messages, he was a witness to the circum-
stances surrounding the interactions with [AW], so that would
potentially lead to evidence of the crime.
...
Q: And so you took that to mean that you could search the whole
phone?
A: Yes. That’s what was written in the authority.
...
Q: So within these last two years, has this been your standard
practice for [ ] phone searches?
A: Yes.
Q: That when there’s probable cause for anything on the phone,
you can search everything on the phone?
A: Yes. If the warrant allows for the entire phone to be seized,
then all the data on the phone becomes the property of the
[G]overnment and can be searched at any time.
Q: And in those previous cases, it is you or whoever the [AF]OSI
agent is that’s the individual who is putting in [ ] those parame-
ters for the search authorization?
A: Yes. Those parameters are discussed with [ ] legal, and we
determine whether or not the parameters become [a question of],
you know, physical capability of putting parameters through
[trying to get best] evidence, you can’t chop a phone in half to
25
United States v. Lattin, No. ACM 39859
get, you know, certain messages. And the phone is also [best]
evidence.[20]
SA LB described finding messages regarding KA in plain view while look-
ing at messages with KS, explaining,
we were taught, you know, in FLETC[21 . . . if] I have a right to
be in the phone, and I see something that leads me to believe
there’s evidence of a crime, just like we did with finding the other
allegation of a sexual assault, that’s in play. So there was no
need to get an expanded scope.
Additionally, SA LB believed she had authority to search Appellant’s phone
not only for communications with AW and TD, but to look for other witnesses
in the case.
Exclusion of evidence “almost always requires courts to ignore reliable,
trustworthy evidence bearing on guilt or innocence” and “its bottom-line effect,
in many cases, is to suppress the truth and set the criminal loose in the com-
munity without punishment.” Davis v. United States, 564 U.S. 229, 237 (2011)
(citing Herring, 555 U.S. at 141). In Herring, the Supreme Court spoke in detail
on application of the exclusionary rule, including stating,
The fact that a Fourth Amendment violation occurred—i.e., that
a search or arrest was unreasonable—does not necessarily mean
that the exclusionary rule applies. Indeed, exclusion “has always
been our last resort, not our first impulse,” and our precedents
establish important principles that constrain application of the
exclusionary rule.
555 U.S. at 14041 (citations omitted).
These constraints include that the exclusionary rule applies “only where it
result[s] in appreciable deterrence” and “the benefits of deterrence outweigh
the costs.” Id. at 141 (alteration in original) (internal quotation marks omitted)
(citing Leon, 468 U.S. at 909–10). “The extent to which the exclusionary rule is
justified by these deterrence principles varies with the culpability of the law
enforcement conduct.” Id. at 143.
When the police exhibit deliberate, reckless, or grossly negligent
disregard for Fourth Amendment rights, the deterrent value of
exclusion is strong and tends to outweigh the resulting costs. But
20 The transcript is in error. We quote from the audio recording of this portion of the
proceeding. See also n.22, supra.
21 We understand this to refer to her training to be a special agent at a Federal Law
Enforcement Training Center.
26
United States v. Lattin, No. ACM 39859
when the police act with an objectively reasonable good-faith be-
lief that their conduct is lawful, or when their conduct involves
only simple, isolated negligence, the deterrence rationale loses
much of its force, and exclusion cannot pay its way.
Davis, 564 U.S. at 238 (internal quotation marks omitted) (first citing Herring,
555 U.S. at 144, 137; and then citing Leon, 468 U.S. at 909, 919, 908, n.6).
In this case, the military judge at length considered deterrence and the cost
to the justice system of excluding the evidence. He stated “[e]xclusion of this
evidence under these facts will not deter future actions by military law enforce-
ment personnel.” He determined SA LB’s conduct was neither “deliberate
enough to yield meaningful deterrence [or] culpable enough to be worth the
price paid by the justice system.”
Similarly, we find SA LB’s conduct does not warrant exclusion of evidence
in this case to deter future unlawful searches; that benefit does not outweigh
the costs to the justice system. See Herring, 555 U.S. at 144 n.4 (“[W]e do not
suggest that the exclusion of this evidence could have no deterrent effect . . .
and here exclusion is not worth the cost.”). In this regard, the military judge
made three important findings. First, he found that “SA [LB] acted reasonably
– especially considering the nature of digital evidence and the realties [sic]
faced when attempting to search and analyze the same without knowing po-
tentially involved parties’ phone numbers.” Second, and related, the military
judge found “it is clear from the evidence that SA [LB] did not” violate Appel-
lant’s rights under the Fourth Amendment “deliberately, recklessly, or with
gross negligence.” To the extent these conclusions are findings of fact in a
mixed question of fact and law, we determine they are not clearly erroneous.
Third, the military judge found that “any wrong done to the accused’s rights
was by accident, [and] not design,” and that it had not been shown that this
case “involve[d] any recurring or systemic negligence on the part of law en-
forcement.” These findings are supported by the evidence and not clearly erro-
neous.
We agree with the military judge that SA LB’s conduct was not deliberate,
reckless, or grossly negligent, or even indifferent or wanton.22 She thought she
was doing what the law allowed. She coordinated with the legal office before
and while requesting search authorization. She limited her search to text mes-
22 The Supreme Court in Herring did not define the term “gross negligence,” and such
phrase has been defined myriad ways. See generally, Andrew Guthrie Ferguson, Con-
stitutional Culpability: Questioning the New Exclusionary Rules, 66 Fla. L. Rev. 623(2014). Our review of the law indicates gross negligence is more than ordinary negli-
gence, but less than intentional conduct.
27
United States v. Lattin, No. ACM 39859
sages. She focused her search on finding evidence related to AW’s claim of sex-
ual assault, including what Appellant may have told others about it. She was
careful to avoid reading what she believed were privileged communications.
She believed she found messages regarding KA “while she had a right to be in
the phone,” and so did not pursue an expanded search authorization.
Most importantly, while SA LB testified about her “standard practice” for
searching phones, she did not quantify those searches, indicate how many in-
volved such sweeping search authorizations, or suggest that her practice was
also AFOSI’s. No one else from AFOSI, and no one from FLETC, testified about
training or standard practices in obtaining an authorization to search a phone,
and how to conduct the search. The record provides inadequate support to con-
clude that SA LB’s actions in searching Appellant’s phone were either recur-
rent or representative of law-enforcement practices, and therefore we cannot
conclude that exclusion of the evidence would address “recurring or systemic
negligence.” Herring, 555 U.S. at 144. Exclusion of the evidence seized because
of her unlawful search is far too drastic a response to make her aware of her
mistaken ideas and help ensure her conduct is not repeated.
The search authority relied on the experience of SA LB and a judge advo-
cate. From our reading of the record, it appears the search authority intended
to authorize a search of Appellant’s phone for text messages SA LB expected
to find, not to authorize a rummage for anything that might be interesting for
AFOSI’s investigation into Appellant. Exclusion of the evidence seized because
the search authority authorized an overly broad search in this case is not war-
ranted to deter such conduct in the future.
We find the dissenting opinion’s comparison to Davis inapt. While the Su-
preme Court at length addressed deterrence and the costs to the justice system,
its holding was rooted in the good-faith exception to the exclusionary rule. Da-
vis, 564 U.S. at 249 (“That sort of blameless police conduct, we hold, comes
within the good-faith exception and is not properly subject to the exclusionary
rule.”). It did not reach the question of whether, if the good-faith exception did
not apply, the evidence should have been suppressed to deter future police mis-
conduct.
The costs to the justice system have myriad sources. We highlight two in
this case: the magnitude of the violation and the victims of the crime. In this
case, SA LB retrieved messages between Appellant and (1) a known victim
(AW), (2) a known witness (TD), (3) known associates of Appellant (DS, AS,
and KS), and (4) Appellant’s father. Because Appellant communicated via text
message to these individuals, he lost control over the further dissemination of
his statements, resulting in a corresponding reduction in his expectation of
privacy therein. See Maxwell, 45 M.J. at 417. Moreover—and related to the
concept of inevitable discovery—Appellant’s phone was not the only connection
28
United States v. Lattin, No. ACM 39859
between the events with KA and with AW. KS and Appellant’s father had some
information relating to Appellant’s interaction with both KA and AW; they
could have turned over to investigators their copies of messages with Appellant
without violating Appellant’s rights. In summary, the costs to the justice sys-
tem when we exclude evidence due to a Fourth Amendment violation grow
higher as the person’s expectation of privacy in that evidence is diminished.
Additionally, when we weigh the “substantial social costs” of suppression,
“which sometimes include setting the guilty free and the dangerous at large,”
Hudson v. Michigan, 547 U.S. 586, 591 (2006), we consider the particular case
and the scope of those who would suffer the costs. Society’s interest in justice
is understandably higher when the crime involves a particular victim. Here,
Appellant was charged with sexual assault and abusive sexual contact against
two victims—KA and AW. These are not “victimless crimes.” Moreover, convic-
tions for these crimes demonstrate Appellant was a repeat offender from whom
society needed protection. Exclusion would not just impact society in general,
but particular members of society, and potential future victims. In this case,
exclusion of the evidence retrieved from Appellant’s phone would result in high
social costs and speculative deterrence.
The analysis of the exclusionary rule is different when we consider a wit-
ness’s live testimony as derivative evidence. “Unlike real or documentary evi-
dence, live-witness testimony is the product of ‘will, perception, memory and
volition.’” United States v. Kaliski, 37 M.J. 105, 109 (C.M.A. 1993) (citation
omitted). And “since the cost of excluding live-witness testimony often will be
greater, a closer, more direct link between the illegality and that kind of testi-
mony is required.” United States v. Ceccolini, 435 U.S. 268, 278 (1978). Our
system of justice has a “strong interest . . . of making available to the trier of
fact all concededly relevant and trustworthy evidence.” Id.When the identity of a witness was discovered due to illegal police activity,
we use the factors set out in Ceccolini to determine whether the witness’s tes-
timony should be excluded:
(1) The degree of free will exercised by the witness in testifying;
(2) The time lapse between the time of the illegal search and the
initial contact with the witness, as well as the lapse of time be-
tween initial contact and testimony at trial; (3) The role the ille-
gal law enforcement activity had in obtaining the witness testi-
mony; (4) The purpose and flagrancy of the law enforcement con-
duct; and (5) The cost-benefit analysis, comparing the cost of ex-
cluding live-witness testimony and permanently silencing a wit-
ness with the beneficial deterrent effect.
29
United States v. Lattin, No. ACM 39859
United States v. Mancini, No. ACM 38783, 2016 CCA LEXIS 660 at *3234
(A.F. Ct. Crim. App. 7 Nov. 2016) (unpub. op.) (citing Ceccolini, 435 U.S. at
276, 27980); see also United States v. Jones, 64 M.J. 596, 605–10 (A. Ct. Crim.
App. 2007) (applying the five Ceccolini factors).
In this case, we find the factors overall weigh against exclusion of KA’s
testimony. KA reported Appellant’s conduct in a restricted report four months
before she was contacted by AFOSI agents. Nevertheless, KA’s allegation
against Appellant was not a secret. DS and KS were aware of her allegation.
When KA learned that “there was another victim,” she chose to cooperate with
Appellant’s prosecution. Although she learned from AFOSI that Appellant was
under investigation for a sexual offense against another woman, if she had in-
stead heard about it through others, like fellow officers, it is reasonable to con-
clude she likewise would have chosen to cooperate in the prosecution. The one
factor that weighs for exclusion is the purpose of SA LB’s search: she conducted
a warrantless search of Appellant’s text messages for evidence of other victims.
On the whole, we agree with the military judge’s legal conclusion that even if
excluding KA’s testimony would “result in appreciable deterrence to SA
[LB] . . . such deterrence does not out-weigh the costs to the justice system of
excluding the live testimony of this particular witness.” The military judge did
not abuse his discretion in allowing KA to testify on the merits.
We conclude the military judge did not abuse his discretion in ruling the
text messages were admissible because we do not find “exclusion of the evi-
dence results in appreciable deterrence of future unlawful searches or seizures
and the benefits of such deterrence outweigh the costs to the justice system.”
Mil. R. Evid. 311(a)(3).
C. Findings Instructions
In his initial brief to this court, Appellant claimed the military judge failed
to instruct the court members on the intent to gratify sexual desires, as
charged in Specification 4 of the Charge. The Government replied, correctly
identifying where the military judge did, in fact, instruct on this intent ele-
ment. In Appellant’s reply brief, he acknowledged his mistake, and claimed
this error related to Specification 5 of the Charge. Appellant did not make a
motion to amend his initial brief to correct his error. See JT. CT. CRIM. APP. R.
23.3(n). The Government did not submit any filing in response to the purport-
edly changed assignment of error.
1. Additional Background
Specifications 4 and 5 of the Charge alleged Appellant committed the acts
upon AW “with an intent to gratify his sexual desires.” Shortly after the court-
martial was assembled, the military judge asked the court members “to read
the Charge and its Specifications on that flyer that is provided” in a folder for
30
United States v. Lattin, No. ACM 39859
each member. The flyer, Appellate Exhibit XXXII, accurately reflects the
charged language in Specifications 4 and 5 of the Charge. In the Government’s
opening statement, the trial counsel stated that it would be asking the court
members to “find [Appellant] guilty of a number of specifications listed on the
flyer found in the folders in front of you.”
The military judge instructed the court members both orally and in writing
of the elements of the charged specifications. For Specification 4, the military
judge stated the first element was, “That . . . [Appellant] committed a sexual
act upon [AW] by penetrating her vulva with his finger, with an intent to grat-
ify his sexual desires.” For the elements of Specification 5, the military judge
made no mention of intent. He stated the first element was, “That . . . [Appel-
lant] committed sexual contact upon [AW] by touching the nipple of [AW] with
his mouth.” The military judge then defined “sexual contact,” which included,
“touching . . . [the breast] . . . with an intent to abuse, humiliate, harass, or
degrade any person or to arouse or gratify the sexual desire of any person.”
Both before and after the military judge provided the members instructions
on Specifications 4 and 5, he gave counsel the opportunity to object or request
additional instructions. Trial defense counsel did not raise the issue before the
instructions were read, and had no objection or request for additional instruc-
tion afterwards. The court members did not interrupt their deliberations to ask
the military judge any questions.
2. Law
“Failure to object to an instruction or to omission of an instruction before
the members close to deliberate forfeits the objection.” R.C.M. 920(f). “But,
when counsel affirmatively decline[s] to object and offers no additional instruc-
tions, counsel expressly and unequivocally acquiesce[s] to the military judge’s
instructions, and his actions thus constitute waiver.” United States v. Rich, 79
M.J. 472, 476 (C.A.A.F. 2020) (alterations in original) (internal quotation
marks omitted) (citing United States v. Davis, 79 M.J. 329, 332 (C.A.A.F.
2020)). However, pursuant to Article 66(d), UCMJ, 10 U.S.C. § 866(d), the
Courts of Criminal Appeals (CCA) have the unique statutory responsibility to
affirm only so much of the findings and sentence that they find is correct and
“should be approved.” This includes the authority to address errors raised for
the first time on appeal despite waiver of those errors at trial. See, e.g., United
States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018). CCAs assess the entire
record and determine “whether to leave an accused’s waiver intact, or to correct
the error.” United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016).
“The military judge has an independent duty to determine and deliver ap-
propriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)
(citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A. 1990)).
31
United States v. Lattin, No. ACM 39859
This duty includes giving required instructions that include “[a] description of
the elements of each offense charged.” R.C.M. 920(e)(1).
3. Analysis
We have reviewed the entire record, and have determined to leave intact
Appellant’s waiver of error relating to the instructions on the elements of Spec-
ifications 4 and 5.23 We are confident that the members in this case understood
Appellant was charged in those specifications with committing acts upon AW
with the intent to gratify his sexual desires, and not some other intent, before
finding him guilty as charged.
D. Character Testimony about AW
Appellant claims “the [m]ilitary [j]udge erred in allowing improper forms
of evidence, including specific instances of conduct, to be introduced,” relating
to AW’s character. The particular traits Appellant identified are “character for
truthfulness” and “character for high performance and effort and her affinity
for the Air Force.”
1. Additional Background
After the Defense challenged AW’s credibility on cross-examination, the
Government called Lieutenant Colonel (Lt Col) ON as a witness. Lt Col ON
was AW’s ROTC detachment commander at the time of the offenses. She did
not attend the trip to Luke AFB, but she gave the order that the cadets would
not be allowed to drink alcohol.
The last morning of the trip, Capt ST, a senior cadre member, called
Lt Col ON and told her AW had been assaulted. Later that day, AW called
Lt Col ON and directly reported the assault. Initially, AW did not admit to
Lt Col ON that she had been drinking during the trip, but later—after
Lt Col ON learned that several cadets drank during the trip—told Lt Col ON
she had been drinking.
Lt Col ON testified about disciplinary actions and consequences that could
flow from violating her no-drinking order. Thereafter, the following exchange
with trial counsel occurred:
23 Although Appellant failed to amend this assignment of error in his brief to include
Specification 5, we elected to consider it as well as his claimed error regarding Specifi-
cation 4. We note that in his assignment of error regarding ineffective assistance of
counsel for failing to object to the military judge’s instructions (issue (8)), Appellant
claims error with respect to Specification 5.
32
United States v. Lattin, No. ACM 39859
Q [Trial Counsel]: So with all this in mind, did you ever think at
any time that [AW] was accusing [Appellant] of sexual assault
just so she could get out of trouble?
A [Lt Col ON]: No.
Q: And why not?
[Trial Defense Counsel]: Objection, speculation, Sir.
[Military Judge]: I’m going to overrule the objection. I’ll allow it.
A: Historically, [AW] was a high performing cadet and histori-
cally she had owned her mistakes. I had, if anything, observed
that she was forthcoming, even to her own detriment at times
because she was committed to integrity, which is what we teach
them they have to be. And so I didn’t have any reason to doubt
her.
Q: You just mentioned that she had come forward in the past
and told you things to her detriment. Do you have an example of
that?
[Military Judge]: I’m not going to allow that question.
Lt Col ON next described AW’s status in ROTC at the time of the trip,
which led to testimony about AW being medically disqualified from commis-
sioning based on a self-reported medical issue. The following exchange drew
no objection from the Defense:
Q [Trial Counsel]: So, when [AW] receives the news that she’s
been medically disqualified, how did she handle that situation,
from your perspective?
A [Lt Col ON]: Well, she was emotional. . . . [S]he, in particular,
has not ever envisioned any future for herself that was not being
an Air Force officer because she was an Air Force brat, her dad’s
a retired master sergeant, and that’s just—that was really the
fabric of who she is.
Q: So after she’s told that she’s been medically disqualified, how
did she respond to that when it came to training and being in-
volved in ROTC and giving it her full participation?
A: Well, she continued to give it 100 percent. You know, like I
said, she’s very high performing, and so while it was an emo-
tional event for her, she continued to participate—as long as I
was willing to let her participate, she wanted to continue to par-
ticipate as if nothing had changed.
33
United States v. Lattin, No. ACM 39859
Lt Col ON ultimately disciplined AW and other cadets for violating her no-
drinking order. Lt Col ON also testified that she had awarded AW her “com-
mander’s scholarship” in AW’s sophomore year, and helped AW contest the
medical disqualification.
2. Law
“A witness’ credibility may be attacked or supported by testimony about the
witness’ reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character. Evidence of
truthful character is admissible only after the witness’ character for truthful-
ness has been attacked.” Mil. R. Evid. 608(a). “[E]xtrinsic evidence is not ad-
missible to prove specific instances of a witness’ conduct in order to attack or
support the witness’ character for truthfulness.” Mil. R. Evid. 608(b).
“Under [Mil. R. Evid.] 608 . . . , a party may introduce opinion evidence re-
garding the general character of a person for truthfulness. The authority to in-
troduce such opinion evidence, however, does not extend to ‘human lie detector’
testimony—that is, an opinion as to whether the person was truthful in making
a specific statement regarding a fact at issue in the case.” United States v.
Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003) (citing United States v. Whitney, 55
M.J. 413, 415 (C.A.A.F. 2001) (additional citation omitted)); see also United
States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007).
If a witness does not expressly state that he believes a person is
truthful, we examine the testimony to determine if it is the
“functional equivalent of” human lie detector testimony. Testi-
mony is the functional equivalent of human lie detector testi-
mony when it invades the unique province of the court members
to determine the credibility of witnesses, and the substance of
the testimony leads the members to infer that the witness be-
lieves the victim is truthful or deceitful with respect to an issue
at trial.
United States v. Martin, 75 M.J. 321, 32425 (C.A.A.F. 2016) (citations omit-
ted).
When a witness gives human-lie-detector testimony, however, the military
judge must provide the members an instruction as to how they may, and may
not, consider such testimony. See Kasper, 58 M.J. at 31820.
“Where an appellant has not preserved an objection to evidence by making
a timely objection, that error will be forfeited in the absence of plain error.”
United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citations omitted). “A
timely and specific objection is required so that the court is notified of a possi-
ble error, and so has an opportunity to correct the error and obviate the need
for appeal.” Id. To establish plain error, “[the] appellant must convince us that
34
United States v. Lattin, No. ACM 39859
(1) there was error; (2) that it was plain or obvious; and (3) that the error ma-
terially prejudiced a substantial right. We will reverse for plain error only if
the error had ‘an unfair prejudicial impact’ on the findings or sentence.” United
States v. Schlamer, 52 M.J. 80, 8586 (C.A.A.F. 1999) (citation omitted). “[T]he
lack of defense objection is relevant to a determination of prejudice”; it indi-
cates “some measure of the minimal impact.” United States v. Carpenter, 51
M.J. 393, 397 (C.A.A.F. 1999) (internal quotation marks and citations omitted)
(discussing plain error in the context of trial counsel’s improper argument).
3. Analysis
a. Character
Appellant claims the military judge erred in allowing the Government to
introduce evidence of AW’s character traits, allowing specific examples of those
traits, and bolstering AW’s credibility. First, we have determined that defense
counsel’s objection based on speculation was not sufficient to preserve Appel-
lant’s objection to human-lie-detector testimony. While such testimony may be
speculative, the military judge was not on notice that this issue was at the heart
of Defense’s speculation objection. Therefore, we review for plain error. See
Knapp, 73 M.J. at 36.
Unlike human-lie-detector testimony, character-for-truthfulness testimony
is admissible, under Mil. R. Evid. 608(a), in the form of an opinion. Lt Col ON
had a foundation to provide an opinion on AW’s truthfulness. Trial counsel’s
questions to elicit such opinion were not well crafted, but in the end revealed
that Lt Col ON had a high opinion of AW’s truthfulness. Although defense coun-
sel had objected to the line of questioning based on speculation—not on lack of
foundation or improper character evidence—the military judge’s rulings re-
garding her testimony show he was oriented to the issue of character.
We agree with the Government’s concession that “Lt Col ON’s testimony
pushed the bounds of what might constitute reputation or opinion testimony;
however it did not plainly cross the line into specific instances within the mean-
ing of Mil. R. Evid. 608(b).” Lt Col ON’s descriptions of AW as “a high perform-
ing cadet and historically she had owned her mistakes” and “was committed to
integrity” are not specific instances of conduct prohibited by Mil. R. Evid.
608(b). When trial counsel asked Lt Col ON a follow-up question that would
elicit a specific instance of conduct relating to truthfulness (“Do you have an
example of that?”), the military judge sua sponte interrupted and did not allow
the witness to answer.
Appellant next claims that, contrary to Mil. R. Evid. 404(a), Lt Col ON tes-
tified about other character traits of AW—specifically character for high per-
formance and effort and her affinity for the Air Force. Appellant claims this
was “improperly introduced in order to bolster [AW’s] credibility at trial.” The
35
United States v. Lattin, No. ACM 39859
Government argues on appeal that this testimony was to “‘explain, repel, coun-
teract or disprove the evidence introduced by the opposing party’” (quoting
United States v. Wirth, 18 M.J. 214, 218 (C.M.A. 1984), specifically “the defense
theory that AW concocted this allegation of sexual assault to protect her future
Air Force career.”
Mil. R. Evid. 404(a)(1) prohibits evidence of a person’s character or charac-
ter trait “to prove that on a particular occasion the person acted in accordance
with the character or trait.” Appellant does not explain how testimony that AW
was a high performer, displayed effort, and had an affinity for the Air Force
was proof that AW acted in accordance with those traits on any particular oc-
casion. Instead, he argues that these traits are indicators of truthfulness, as
such a person “even after being medically disqualified would not make false
allegations of sexual assault to preserve a romantic relationship.” While that
may be true, we find Lt Col ON’s descriptions of AW as “high performing,” the
Air Force being “the fabric of who she is,” and giving “100 percent” after learn-
ing she was medically disqualified are not specific instances of conduct relating
to truthfulness prohibited by Mil. R. Evid. 608(b).
Appellant’s “bolstering” claim also fails. Before Lt Col ON testified, the De-
fense had attacked AW’s credibility during its cross-examination of her. “Bol-
stering occurs before impeachment, that is, when the proponent seeks to en-
hance the credibility of the witness before the witness is attacked.” United
States v. Toro, 37 M.J. 313, 315 (C.M.A. 1993) (citations omitted). Thus,
Lt Col ON’s testimony could not improperly “bolster” AW’s credibility, which
already had been attacked.
b. Human-Lie-Detector Testimony
Appellant specifies three instances of impermissible human-lie-detector tes-
timony from Lt Col ON: (1) she did not ever think at any time that AW was
accusing Appellant of sexual assault just so she could get out of trouble; (2) she
stated AW had owned her mistakes, and was forthcoming and committed to
integrity; and (3) she did not have any reason to doubt AW. We find these were
not direct opinions by Lt Col ON about the truthfulness of AW’s report of sex-
ual assault. However, when we next consider whether they were the “func-
tional equivalent” of human-lie-detector testimony, we find that (3) was.24 Af-
ter describing AW as a truthful person, Lt Col ON’s declaration that she had
no reason to doubt AW’s allegation of sexual assault, was, in essence, testimony
24 We consider instance (1) a lack of endorsement of a reason AW might by lying, and
(2) Lt Col ON’s opinion regarding character for responsibility and integrity. We find
neither is testimony that Lt Col ON believed AW was telling the truth about the alle-
gation of sexual assault.
36
United States v. Lattin, No. ACM 39859
that she believed AW’s report of sexual assault. We find no prejudicial plain
error.
It is error for a military judge to allow human-lie-detector testimony to be
presented without interruption or an instruction to the members. And while
the error was subtle,25 we find it was plain or obvious error but did not mate-
rially prejudice a substantial right of Appellant. Lt Col ON was not a witness
purporting to have specialized expertise or knowledge about whether someone
is telling the truth. See, e.g., United States v. Flesher, 73 M.J. 303 (C.A.A.F.
2014) (finding error where the military judge allowed a witness to testify as an
expert and whose testimony only served to repeat the victim’s account); United
States v. Cauley, 45 M.J. 353 (C.A.A.F. 1996) (finding no error where the mili-
tary judge did not allow a detective to testify as an expert regarding false alle-
gations when that testimony would only serve to attack the alleged victim’s
character for truthfulness). Upon cross-examination, defense counsel elicited
one specific instance of AW’s untruthfulness and attacked Lt Col ON’s founda-
tion for her opinion that AW told her the truth. We recognize that due to
Lt Col ON’s role as an ROTC detachment commander, her testimony might be
given more weight, but find her testimony overall did not give the impression
that she had a more-than-average ability to assess AW’s truthfulness. Moreo-
ver, given the strong DNA evidence corroborating AW’s account, AW’s credibil-
ity was not a central issue. Cf. Kasper, 58 M.J. at 320 (finding prejudice where
the impermissible evidence “d[id] not involve a stray remark on a secondary
matter” but “involve[d] a central issue at trial.”) Having reviewed the record
as a whole, we do not find this error “had ‘an unfair prejudicial impact’ on the
findings or sentence.” Schlamer, 52 M.J. at 8586 (quoting United States v.
Powell, 49 M.J. 460, 463 (1998)).
E. Trial Counsel Argument
Appellant claims the circuit trial counsel made improper argument when
she: (1) “vouched for [AW’s] veracity when she stated ‘then I know she is telling
the truth’ after rebutting a point from the defense cross-examination of [AW];”
and (2) argued for spillover between the unrelated charged offenses.
25 Defense counsel had objected to the question as “speculation,” but did not object on
the basis that it was the functional equivalent of human-lie-detector testimony, or ask
for a curative instruction. These are some indications of the error’s low prejudicial ef-
fect.
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United States v. Lattin, No. ACM 39859
We reject the first claim, as the transcript on this point is in error. We have
compared the transcript and the audio recording in the record of trial.26 The
circuit trial counsel did not say, “I know she is telling the truth,” and instead
said, “watch the OSI interview.” The transcript should read:
And so you have that. You have that prior consistent statement
from her. Defense counsel wanted to pick on her, “now you never
said that before, this is the first time we’re hearing that.” Well
then watch the OSI interview because what you see, when she
talked to OSI, she said exactly that.
We next consider Appellant’s spillover claim, and find no error.
1. Additional Background
Appellant quotes three portions of the circuit trial counsel’s closing argu-
ment to support his claim of improper argument. The first portion is the very
beginning of the argument:27
They trusted him because he wore this uniform. Everything that
[AW] and [KA] had been taught by this very organization was
they could trust their fellow [A]irmen, their fellow detachment
members, their fellow pilots. You never leave another [A]irman
behind. We’re supposed to be wingman. We take care of each
other, we taught them that, we told them that. And so when
[AW] walks into the accused[’s] apartment after that night at
Westgate, she trusts that she is going to get home safely. When
[KA] drinks more than she usually does that day on the river,
she trusts that the accused is going to take care of her. And he
betrayed that trust. When [AW] is in his apartment he sexually
assaulted her mere feet away from where he had sexually as-
saulted [KA] four months earlier. [What the evidence has shown
you in this case is that he is guilty].
Trial counsel laid out the structure of her argument about credibility:
26 “The term ‘record’, when used in connection with the proceedings of a court-martial,
means—(A) an official written transcript . . . or (B) an official audiotape . . . .” Article
1(14), UCMJ, 10 U.S.C. § 801(14); see also R.C.M. 1112(b) (“The record of trial contains
the court-martial proceedings” and in a general court-martial shall include a “substan-
tially verbatim recording of the court-martial proceedings.”).
27 The bracketed sentences are additional portions of the argument that Appellant did
not quote.
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United States v. Lattin, No. ACM 39859
So the next question becomes how you can trust that evidence,
how that evidence is credible, and how that shows you that be-
yond a reasonable doubt the accused is guilty. And you have
three main areas that I want to talk about with that. With each
of these cases. And the first thing that you have is a lack of mo-
tive on part of either of these women to come in here and tell you
anything other than what is true and what happened and that’s
that they were sexually assaulted.
The next part you have though is corroboration of what they
have told you from other sources of evidence and from other
statements that they have made outside of this courtroom that
you have evidence of.
And finally, you have the accused’s own confession and the ac-
tions that he has taken to show his consciousness of guilt.
Trial counsel followed this structure, first arguing the offenses relating to
AW before those relating to KA—the same order in which they presented their
case. She ended with the following—the last two portions Appellant highlights
in this appeal:
The last piece I want to talk to you about briefly members is that
you look at this and in order for this you have two women, two
women who have never met, two women who didn’t know each
other, who have no connection to each other, who never even
talked to each other. Four months apart saying they were sex-
ually assaulted by the accused. And you see commonalities
there. The trips to Hill, [“]come visit me at Hill,[”] the petting of
the hair, you see that. You see the lies that he tells. You see the
manipulation, you see that. He’s either the unluckiest person in
the world, or you have two women who are telling the truth.
And so when you look at all the evidence, when you look at these
women, you know what you have in this case of two credible vic-
tims with evidence to back them up and an accused who has lied
about this to multiple people because of his guilt. What you see
is that they were there because they trusted him. They were
there because we had told them to trust him. He was a fellow
officer, a fellow pilot, a fellow ROTC member and then he be-
trayed that. [What the evidence has shown is that he sexually
assaulted [AW] and that he sexually assaulted [KA]. And it’s
showing you that he’s guilty. Thank you.]
(Emphasis added).
39
United States v. Lattin, No. ACM 39859
The military judge advised the court members both before and after find-
ings argument that the arguments of counsel are not evidence. Additionally,
before they began deliberations, the military judge provided the court members
a standard “spillover” instruction, which included the following:
An accused may be convicted based only on evidence before the
court, and not on evidence of general criminal disposition. Each
offense must stand on its own and you must keep the evidence
of each offense separate. Stated differently, if you find or believe
that the accused is guilty of one offense, you may not use that
finding or belief as a basis for inferring, assuming, or proving
that he committed any other offense.
If evidence has been presented which is relevant to more than
one offense, you may consider that evidence with respect to each
offense to which it is relevant.
2. Law
We review prosecutorial misconduct and improper argument de novo. See
United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019), cert. denied, Voorhees
v. United States, 140 U.S. 2566 (2020). When an appellant did not object at
trial to trial counsel’s argument, courts review for plain error. Id. (citing United
States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018)).
Plain error occurs when (1) there is error, (2) the error is clear
or obvious, and (3) the error results in material prejudice to a
substantial right of the accused. Thus, we must determine: (1)
whether trial counsel’s arguments amounted to clear, obvious
error; and (2) if so, whether there was a reasonable probability
that, but for the error, the outcome of the proceeding would have
been different.
Id. at 9 (internal quotation marks and citations omitted). The burden to estab-
lish plain error, including prejudice, is on the appellant. Id. at 9, 12.
In presenting argument, trial counsel may “argue the evidence of record,
as well as all reasonable inferences fairly derived from such evidence.” United
States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citation omitted). Trial counsel
may strike hard but fair blows, but may not “inject his personal opinion into
the panel’s deliberations, inflame the members’ passions or prejudices, or ask
them to convict the accused on the basis of criminal predisposition.” United
States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citations omitted). In deter-
mining whether trial counsel’s comments were fair, we examine them in the
context in which they were made. United States v. Gilley, 56 M.J 113, 121
(C.A.A.F. 2001) (citations omitted). We do not “surgically carve out a portion of
40
United States v. Lattin, No. ACM 39859
the argument with no regard to its context.” Baer, 53 M.J. at 238 (internal
quotation marks omitted).
In United States v. Burton, 67 M.J. 150 (C.A.A.F. 2009), a case in which the
appellant was charged with two sexual offenses occurring four years apart, the
CAAF considered the trial counsel’s findings argument inviting the court mem-
bers to compare the charged offenses. After noting the military judge’s spillover
instruction, trial counsel told the court members that they “could not use guilt
of one offense as proof of guilt of another offense.” Id. at 152. Then the trial
counsel in Burton
told the panel it could “take these things and compare them for
[appellant’s] propensity to commit these types of offenses.” He
invited the panel to “take both of [the victims’] stories and lay
them next to each other and compare them and see what this
particular person’s M.O. is.”
Id. (second and third alterations in original). The CAAF held that “The Gov-
ernment may not introduce similarities between a charged offense and prior
conduct, whether charged or uncharged, to show modus operandi or propensity
without using a specific exception within our rules of evidence, such as [Mil. R.
Evid.] 404 or 413.” Id. (citation omitted). “It follows, therefore, that portions of
a closing argument encouraging a panel to focus on such similarities to show
modus operandi and propensity, when made outside the ambit of these excep-
tions, is not a ‘reasonable inference[ ] fairly derived’ from the evidence, and
was improper argument.” Id. at 153 (alteration in original) (quoting Baer, 53
M.J. at 237).
The real risk presented by trial counsel’s improper argument
was that it would invite members to convict [the] appellant
based on a criminal predisposition, not that members would now
perceive properly admitted direct evidence of charged conduct as
propensity evidence. This greater risk was properly addressed
by the military judge’s spillover instruction. The military judge
having instructed the panel that counsel’s arguments were not
evidence and given a general spillover instruction, it was not
plain and obvious that an additional instruction was wanted or
needed.
Id. at 154 (citation omitted). “In the context of the entire trial,” including the
Government’s presentation of evidence and argument, and the military judge’s
instructions, the CAAF did “not believe that any error in trial counsel’s argu-
ment rose to the level of plain error that would require the military judge to
sua sponte instruct on the proper use of propensity evidence or take other re-
medial measures.” Id.
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United States v. Lattin, No. ACM 39859
It is a permissible inference, referred to as the “doctrine of chances,” to con-
sider two otherwise independent events that, taken together, are unlikely to
be coincidental. See Estelle v. McGuire, 502 U.S. 62, 69 (1991). That differs
from the inference covered by the character evidence rule, which prohibits in-
ferring a defendant’s guilt based on an evil character trait. See Michelson v.
United States, 335 U.S. 469, 475–76 (1948). The “doctrine [of chances] posits
that ‘it is unlikely that the defendant would be repeatedly innocently involved
in the similar suspicious situations.’” United States v. Matthews, 53 M.J. 465,
470 (C.A.A.F. 2000) (quoting 1 Edward J. Imwinkelried, Uncharged Miscon-
duct Evidence § 5:28 at 78 (1999)). The doctrine most often is employed to show
the unlikelihood of accident. See generally, Edward J. Imwinkelried, An Evi-
dentiary Paradox: Defending the Character Evidence Prohibition by Upholding
a Non-Character Theory of Logical Relevance, The Doctrine of Chances, 40 U.
Rich. L. Rev. 419 (2006).
3. Analysis
Appellant states the circuit trial counsel’s “arguments introduced similari-
ties between the two unrelated charged sexual assaults by discussing them
together and pointing out the ‘commonalities’ between the two alleged as-
saults.” The result, he argues, is “the Government created a modus operandi
of a sexual predator who relied on the trust of fellow [A]irmen to carry out his
crimes in similar fashions” and “implied that [Appellant] possessed a propen-
sity to commit sexual assaults.” The Government counters that the arguments
did not suggest a modus operandi or propensity, and the circuit trial counsel
properly argued the “doctrine of chances.”
We disagree with Appellant that circuit trial counsel argued modus op-
erandi or propensity. We do not read her argument to suggest that Appellant
has a signature method by which he commits sexual crimes, or that he is some-
one who is prone to commit sexual crimes. Instead, her argument suggested
that the commonalities between the accusations of two unrelated women are
factors the members should consider when weighing the credibility of the tes-
timony of those victims.28 The evidence she highlighted was not admitted for a
limited purpose, so it was proper for her to argue therefrom reasonable infer-
ences relating to witness credibility. Moreover, we also do not read her argu-
ment to imply that because Appellant was accused of more than one sexual
offense, the allegations are more likely to be true. She did not invite the court
28 We need not determine whether the “doctrine of chances” includes the unlikelihood
that two witnesses were fabricating their accusations, as the Government argues on
appeal.
42
United States v. Lattin, No. ACM 39859
members to consider improper “spillover” of evidence; the commonalities nec-
essarily were relevant to offenses involving both women. We find no error,
much less plain error.
F. Ineffective Assistance of Counsel Allegations
Through counsel, Appellant asserts his trial defense counsel provided inef-
fective assistance of counsel (issue (8)) for failing to object to incomplete in-
structions, improper character evidence, human-lie-detector testimony, and
improper argument (issues (3), (5), (6), and (7), discussed supra, Sections C, D,
and E).
Additionally, Appellant personally asserts that his trial defense counsel
were ineffective for not filing a post-trial motion after the convening authority
took no action on his sentence (issue 11). Appellant asserts the convening au-
thority’s failure to take specific action was plain error, and claims prejudice
resulting from his trial defense counsel’s “failure to request relief during clem-
ency.” We consider this issue in the next section, where we consider the con-
vening authority’s decision to take “no action” on Appellant’s sentence.
1. Additional Background
On 23 December 2020, the Government moved this court to compel decla-
rations or affidavits from Appellant’s two trial defense counsel based on issue
(8). The Government noted issues (5), (6), and (7), but omitted mention of issues
(3) and (11). This court granted the Government’s motion on 4 January 2021,
which echoed the Government’s request for declarations responsive to issues
(5), (6), and (7). On 16 February 2021, this court granted the Government’s
motion to attach declarations from Appellant’s trial defense counsel, Mr. DC
and Capt AB. Mr. DC’s declaration is responsive to issues (5), (6), and (7).
Capt AB’s declaration is responsive to issues (4), (5), and (6).
Regarding failing to object to improper character evidence (issue (5)),
Mr. DC stated AW’s credibility was “thoroughly attacked” and Capt AB stated
AW’s “credibility was attacked before and after the witness Lt Col O.N. took
the stand.” Further, Capt AB explained that
[t]he Defense knew the specific instances brought up in our cross
[examination] of A.W. were going to be specific instances that we
went over with Lt Col O.N., negating the need to object to char-
acter evidence. Specifically, that she lied to stay in ROTC and
that she lied about what she told Glendale Police Department.
Capt AB stated the Defense did object to human-lie-detector testimony (is-
sue (6)), and the military judge overruled it. “An objection to human lie detector
is encompassed within the speculation objection because it is effectively the
same. An individual would be speculating as to whether they believe someone
43
United States v. Lattin, No. ACM 39859
is lying or not.” Mr. DC essentially agreed. Regarding closing argument (issue
(7)), Mr. DC stated “[a]ny improper argument was specifically addressed in the
defense closing.” Capt AB’s declaration does not address issue (7), and instead
explains why they did not object to trial counsel’s argument that KA was una-
ble to consent because of incapacitation by intoxication (issue (4)).
2. Law
The Sixth Amendment29 guarantees an accused the right to effective assis-
tance of counsel. Gilley, 56 M.J. at 124. We review allegations of ineffective
assistance de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011)
(citing United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). 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 presumption of com-
petence announced in United States v. Cronic, 466 U.S. 648, 658 (1984). Gilley,
56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F.
2000)).
We will not second-guess reasonable strategic or tactical decisions by trial
defense counsel. Mazza, 67 M.J. at 475 (citation omitted). “Defense counsel do
not perform deficiently when they make a strategic decision to accept a risk or
forego a potential benefit, where it is objectively reasonable to do so.” United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citing Gooch, 69 M.J. at
36263). The burden is on the appellant to demonstrate both deficient perfor-
mance and prejudice. Id. “Appellant’s failure to show plain error is fatal to his
ineffective assistance of counsel claims. . . . Appellant cannot demonstrate that
his counsel’s failure . . . was deficient when there is no plain or obvious error.”
United States v. Schmidt, __ M.J. __, No. 21-0004, 2022 CAAF LEXIS 139, at
*37 n.2 (C.A.A.F. 11 Feb. 2022).
We consider the following questions to determine whether the presumption
of competence has been overcome: (1) if an appellant’s allegations are true, is
there a reasonable explanation for counsel’s actions; (2) did defense counsel’s
level of advocacy fall measurably below the performance ordinarily expected of
fallible lawyers; and (3) if defense counsel was ineffective, is there a reasonable
probability that, absent the errors, there would have been a different result.
See United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (citations omitted);
Gooch, 69 M.J. at 362. Considering the last question, “[i]t is not enough to show
that the errors had some conceivable effect on the outcome,” instead it must be
a “probability sufficient to undermine confidence in the outcome,” including “a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Datavs, 71 M.J. at 424 (citations omitted).
29 U.S. CONST. amend. VI.
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United States v. Lattin, No. ACM 39859
3. Analysis
We find no merit to Appellant’s claims of ineffective assistance of counsel.
First, as our analysis, supra, indicates, we found no error with respect to issues
(3), (5), and (7). Moreover, we find trial defense counsel’s explanations regard-
ing issues (3) and (5) to be reasonable. We did not pierce waiver of issue (6)
because we are confident Appellant was not prejudiced. Similarly, we see no
reasonable probability that the result of Appellant’s court-martial would be
different had trial defense counsel objected to the military judge’s instruction
on intent for Specification 5. We find Appellant’s trial defense counsel’s perfor-
mance pertaining to issues (3), (5), (6), and (7) did not fall below that expected
of fallible lawyers, and Appellant received effective assistance of counsel.
G. Convening Authority’s Decision on Action
1. Additional Background
Appellant was convicted of offenses occurring before and after 1 January
2019. Appellant’s court-martial adjourned after the sentence was announced
on 12 December 2019. On 20 December 2019, Appellant’s trial defense counsel
submitted a waiver of clemency—on behalf of herself and Appellant—because
the convening authority did not have the authority to “reduce, commute, or
suspend [Appellant’s] sentence as it relates to confinement and the Dismissal.”
While acknowledging that Appellant’s sentence also included forfeiture of all
pay and allowances, counsel did not request the convening authority provide
relief on that portion of the sentence.
On 21 January 2020, the convening authority signed a Decision on Action
memorandum. In that memorandum, the convening authority indicated he
took “no action” on the findings or sentence. He also stated, “Prior to coming to
this decision, I consulted with my Staff Judge Advocate” and noted Appellant
did not submit matters under R.C.M. 1106. Also, neither victim submitted mat-
ters for the convening authority’s consideration.
2. Law and Analysis
At the time the convening authority signed the Decision on Action memo-
randum in this case, Air Force Instruction (AFI) 51-201, Administration of Mil-
itary Justice, Section 13D (18 Jan. 2019), advised convening authorities to ap-
ply the version of Article 60, UCMJ, in effect at the time of the earliest of-
fense.30 At the same time, the instruction equated a convening authority’s de-
cision to take “no action” with granting no clemency relief, explaining:
30 Specifically, AFI 51-201, ¶ 13.16, stated: “To determine the applicable version of Ar-
ticle 60, look at the date of the earliest offense resulting in a conviction. The version of
Article 60 in effect on that date applies to the entire case.”
45
United States v. Lattin, No. ACM 39859
A decision to take action is tantamount to granting relief,
whereas a decision to take no action is tantamount to granting
no relief. Granting post-sentencing relief (i.e. “taking action”) is
a matter of command prerogative entirely within the discretion
of the convening authority, as limited by the applicable version
of Article 60, UCMJ.
AFI 51-201, ¶ 13.17.1.
During the pendency of this appeal, the CAAF decided United States v.
Brubaker-Escobar, 81 M.J. 471 (C.A.A.F. 2021) (per curiam), holding:
[I]n any court-martial where an accused is found guilty of at
least one specification involving an offense that was committed
before January 1, 2019, a convening authority errs if he fails to
take one of the following post-trial actions: approve, disapprove,
commute, or suspend the sentence of the court-martial in whole
or in part.
Id. at 472.
In Brubaker-Escobar, the CAAF found the convening authority’s failure to
explicitly take one of those actions was a “procedural error.” Id. at 472, 475.
The court noted: “Pursuant to Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2018),
procedural errors are ‘test[ed] for material prejudice to a substantial right to
determine whether relief is warranted.’” Id. at 475 (alteration in original)
(quoting United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005)). The
court held the convening authority’s error in taking “no action” was harmless
because the appellant did not request clemency and the convening authority
could not have granted meaningful clemency regarding any portion of the ad-
judged sentence. Id.Appellant was convicted of offenses occurring before 1 January 2019; the
convening authority made a procedural error when he took no action on the
sentence. In testing for prejudice, we have examined the convening authority’s
decision on action and find Appellant suffered no material prejudice to a sub-
stantial right.
The convening authority was powerless to grant clemency on the adjudged
findings, Article 60(c)(3)(A), UCMJ, 10 U.S.C. § 860(c)(3)(A); and, as to the sen-
tence, could only disapprove, commute, or suspend, in whole or in part, the
adjudged forfeitures of pay and allowances, Article 60(c)(4)(A), 10 U.S.C.
§ 860(c)(4)(A). However, Appellant did not wish to seek clemency relief for the
forfeitures. Moreover, had the convening authority disapproved, commuted, or
suspended the adjudged forfeitures, Appellant still would forfeit all his pay and
allowances by operation of law. See Article 58b(a), UCMJ, 10 U.S.C. § 858b(a).
Thus, the convening authority could not have provided Appellant meaningful
46
United States v. Lattin, No. ACM 39859
relief. We find Appellant was not prejudiced by the procedural error in the con-
vening authority’s decision.
Next we consider whether trial defense counsel’s failure to file a post-trial
motion to address this error in the convening authority’s decision on action
rises to ineffective assistance of counsel. We find that it does not.
In January 2020, when the convening authority took “no action” on Appel-
lant’s sentence, trial defense counsel would have been aware of the provisions
of AFI 51-201, advising convening authorities to specify “no action” when they
decide not to modify the adjudged sentence. Moreover, this court had not yet
issued an opinion addressing whether following that guidance and specifying
“no action” was error.31 As the issue was new, we find Appellant’s trial defense
counsel’s failure to file a post-trial motion based on the convening authority
taking “no action” did not fall below the expected level of performance.32 Fi-
nally, just as we found no prejudice to Appellant from the convening authority’s
failure to take action on his sentence, we find that even if trial defense counsel
was ineffective, there is no reasonable probability that, absent the error, the
result would have been different.
H. Timeliness of Appellate Review
1. Law
Whether an appellant has been deprived of his due process right to speedy
post-trial and appellate review, and whether constitutional error is harmless
beyond a reasonable doubt, are questions of law we review de novo. United
States v. Arriaga, 70 M.J. 51, 56 (C.A.A.F. 2011) (citing United States v.
Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006)).
A presumption of unreasonable delay arises when appellate review is not
completed and a decision is not rendered within 18 months of the case being
docketed. Moreno, 63 M.J. at 142. If there is a Moreno-based presumption of
31 See United States v. Finco, No. ACM S32603, 2020 CCA LEXIS 246, at *15 (A.F. Ct.
Crim. App. 27 Jul. 2020) (unpub. op), pet. denied, __M.J.__ No. 22-0082/AF, 2022 CAAF
168 (C.A.A.F. 3 Mar. 2022) (unpub. op.); cf. United States v. Coffman, 79 M.J. 820 (A.
Ct. Crim. App. 2020) (sister-service Court of Criminal Appeals considered a similar
issue in an opinion issued in May 2020). After Finco, we then issued numerous opinions
with different analyses and resolutions of the issue. See, e.g., United States v. Aumont,
No. ACM 39673, 2020 CCA LEXIS 416 (A.F. Ct. Crim. App. 20 Nov. 2020) (unpub. op.).
The CAAF issued its opinion clarifying the matter in September 2021. Brubaker-Esco-
bar, 81 M.J. at 471.
32 “Because law is not an exact science, an ordinary, reasonable lawyer may fail to
recognize or to raise an issue, even when the issue is available, yet still provide consti-
tutionally effective assistance.” Pelmer v. White, 877 F.2d 1518, 1523 (11th Cir. 1989)
(citation omitted).
47
United States v. Lattin, No. ACM 39859
unreasonable delay or an otherwise facially unreasonable delay, we examine
the claim under the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530
(1972): “(1) the length of the delay; (2) the reasons for the delay; (3) the appel-
lant’s assertion of the right to timely review and appeal; and (4) prejudice.”
Moreno, 63 M.J. at 135 (citations omitted). Moreno identified three types of
prejudice arising from post-trial processing delay: (1) oppressive incarceration;
(2) anxiety and concern; and (3) impairment of a convicted person’s grounds for
appeal and ability to present a defense at a rehearing. Id. at 138–39.
“We analyze each factor and make a determination as to whether that fac-
tor favors the Government or [Appellant].” Id. at 136 (citation omitted). Then,
we balance our analysis of the factors to determine whether a due process vio-
lation occurred. Id. (citing Barker, 407 U.S. at 533 (“Courts must still engage
in a difficult and sensitive balancing process.”)). “No single factor is required
for finding a due process violation and the absence of a given factor will not
prevent such a finding.” Id. (citation omitted). However, where an appellant
has not shown prejudice from the delay, there is no due process violation unless
the delay is so egregious as to “adversely affect the public’s perception of the
fairness and integrity of the military justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006).
Recognizing our authority under Article 66(d), UCMJ, we also consider if
relief for excessive post-trial delay is appropriate even in the absence of a due
process violation. See United States v. Tardif, 57 M.J. 219, 221, 225 (C.A.A.F.
2002).
2. Analysis
Appellant’s case was docketed with the court on 19 February 2020. The
overall delay in failing to render this decision within 18 months of docketing is
facially unreasonable. See Moreno, 63 M.J. at 142. However, we determine no
violation of Appellant’s right to due process and a speedy appellate review. The
delay became facially unreasonable on 12 August 2021. The reasons for the
delay include the time required for Appellant to file his brief, which he did on
18 December 2020—around ten months after docketing. Appellee submitted its
answer on 18 February 2021, and Appellant replied to the answer on 19 March
2021.
Analyzing the Barker factors, we find the delay is long, though not exces-
sively long. The length of the delay is partially owing to nine Defense-requested
and one Government-requested (and unopposed) enlargement of time that the
court granted before the case was joined. In Appellant’s eighth request for en-
largement of time, and pursuant to an order from this court to address the
issue in any further requests, Appellant’s counsel averred that “Appellant has
been advised of his right to a speedy trial and this enlargement of time and
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United States v. Lattin, No. ACM 39859
consents to this enlargement of time.” Both parties requested to exceed the
page limit for their briefs, which requests were granted. The record of trial
comprises 11 volumes, including 1549 pages of trial transcript, 22 prosecution
exhibits, 23 defense exhibits, and 64 appellate exhibits. Appellant raised 11
assignments of error, all of which this court carefully considered and resulted
in this lengthy opinion.
Appellant has not asserted his right to speedy appellate review or pointed
to any particular prejudice resulting from the presumptively unreasonable de-
lay, and we find none. Finding no Barker prejudice, we also find the delay is
not so egregious that it “adversely affects the public’s perception of the fairness
and integrity of the military justice system.” See Toohey, 63 M.J. at 362. As a
result, there is no due process violation. See id.We determine Appellant is not due relief even in the absence of a due pro-
cess violation. See Tardif, 57 M.J. at 223–24. Applying the factors articulated
in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75
M.J. 264 (C.A.A.F. 2016), we find the delay in appellate review justified and
relief for Appellant is not warranted.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.33
CADOTTE, Judge (dissenting in part and in the result):
I agree with my colleagues in the majority finding Specifications 4 and 5 of
the Charge (sexual assault and abusive sexual contact of AW) are correct in
law and fact, and no error materially prejudicial to the substantial rights of
Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a),
866(d).1 However, for the reasons stated below, I depart from my colleagues
33 The Statement of Trial Results failed to include the command that convened the
court-martial as required by R.C.M. 1101(a)(3). Appellant has not claimed prejudice
and we find none. See United States v. Moody-Neukom, No. ACM S32594, 2019 CCA
LEXIS 521, at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019) (unpub. op.) (per curiam).
1 All references to the UCMJ and Military Rules of Evidence are to the Manual for
Courts-Martial, United States (2019 ed.).
49
United States v. Lattin, No. ACM 39859
and would set aside the findings for Specification 1 of the Charge (sexual as-
sault of KA).
Unlike the majority, I find the military judge abused his discretion ruling
that text messages from Appellant’s cellular phone were admissible. I gener-
ally agree with my esteemed colleagues’ findings as to assignment of error (2)—
whether the search of his cell phone violated both the terms of the authoriza-
tion and his Fourth Amendment2 right—except as to the application of the ex-
clusionary rule. Specifically, I come to a different conclusion as to whether Air
Force Office of Special Investigations Special Agent (SA) LB’s actions were “de-
liberate, reckless, or grossly negligent” or part of “recurring or systemic negli-
gence.” Herring v. United States, 555 U.S. 135, 144 (2009). I further find that
“exclusion of the evidence results in appreciable deterrence of future unlawful
searches or seizures and the benefits of such deterrence outweigh the costs to
the justice system.” Mil. R. Evid. 311(a)(3). Consequently, I would dismiss
Specification 1 of the Charge with prejudice and set aside the sentence, and
remand for a sentencing rehearing.
The Fourth Amendment “protects ‘[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.’” Herring, 555 U.S. at 139 (citation omitted). The exclusionary rule
doctrine was created by the United States Supreme Court to deter future
Fourth Amendment violations. Davis v. United States, 564 U.S. 229, 235–36
(2011). “For exclusion to be appropriate, the deterrence benefits of suppression
must outweigh its heavy costs.” Id. at 236. The Supreme Court applied greater
limitation to the application of the exclusionary rule in Herring, holding:
To trigger the exclusionary rule, police conduct must be suffi-
ciently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid
by the justice system. As laid out in our cases, the exclusionary
rule serves to deter deliberate, reckless, or grossly negligent con-
duct, or in some circumstances recurring or systemic negligence.
555 U.S. at 144.
Fundamental to this issue is determining when the conduct of law enforce-
ment is sufficiently negligent to trigger the exclusionary rule. As the majority
points out, “gross negligence” has “been defined in myriad ways,” however Her-
ring did not define the term. Since “gross negligence” has been left undefined
in the exclusionary rule environment, the facts of the Herring and Davis cases
2 U.S. CONST. amend. IV.
50
United States v. Lattin, No. ACM 39859
provide context to law enforcement conduct which the Supreme Court found
did not rise to a level of culpability exceeding mere negligence.
In Herring, the petitioner was arrested by law enforcement officers based
upon a warrant listed in a neighboring county’s computer database. Id. at 137.
The petitioner was searched incident to his arrest, and drugs and a gun were
found. Afterwards, it was discovered that the warrant on which the arrest was
based had been recalled months earlier and that it was mistakenly still in the
computer database. Id. at 138. The petitioner moved to suppress the evidence
seized during his initial illegal arrest. However, the petitioner’s motion was
denied because “there was no reason to believe that application of the exclu-
sionary rule here would deter the occurrence of any future mistakes.” Id. Ulti-
mately, the Supreme Court held that the exclusionary rule should not be ap-
plied concluding “[t]he fact that a Fourth Amendment violation occurred—i.e.,
that a search or arrest was unreasonable—does not necessarily mean that the
exclusionary rule applies.” Id. at 140.
Then, in Davis, the question before the Supreme Court was “whether to
apply [the exclusionary rule] when the police conduct a search in compliance
with binding precedent that is later overruled.” Davis, 564 U.S. at 232. The
court concluded “[r]esponsible law-enforcement officers will take care to learn
‘what is required of them’ under Fourth Amendment precedent and will con-
form their conduct to these rules.” Id. at 241 (citation omitted). The Supreme
Court held “that when the police conduct a search in objectively reasonable
reliance on binding appellate precedent, the exclusionary rule does not apply.”
Id. at 249–50.
In this case, an investigation into Appellant began on 26 January 2019
based on a report of sexual assault by AW which occurred earlier the same day.
At the time, law enforcement was unaware of any allegations of criminal con-
duct committed by Appellant with regard to KA. To investigate AW’s sexual
assault report, SA LB drafted the required Air Force form for an authority to
search and seize Appellant’s cellular phone, attaching to it her probable cause
affidavit. SA LB presented both documents to the group commander with
search authority, and he subsequently granted the authorization to search and
seize. The affidavit included information only with regard to text messages ex-
changed close in time to the assault relating to AW.
During the motion hearing, SA LB testified she wanted authorization to
search Appellant’s phone for “communications between [Appellant] and [AW]
and between [Appellant] and [TD] . . . and ensure that [the messages] were
actually from [Appellant’s] phone.” However, when SA LB actually searched
the phone she exceeded the scope of the evidence for which she testified she
wanted to obtain search authority—communications between Appellant, AW,
and TD. During her search of Appellant’s phone, SA LB viewed text messages
51
United States v. Lattin, No. ACM 39859
on Appellant’s cellular phone that predated by months the offenses committed
upon AW, and that were not communications between AW, TD, and Appellant.
Applying a modicum of common sense, it should have been clear to SA LB the
evidence she was purported to be searching for would not be located in text
message communications that took place months before the date of the offense.
If SA LB had acted as a reasonable law enforcement official, she would have
confined her search to the communications she was “ensur[ing] . . . were actu-
ally from [Appellant’s] phone.”
When SA LB continued her search beyond her stated purpose she discov-
ered text messages that led to the allegation of Appellant’s sexual assault of
KA. The text messages, and derivative evidence, were critical at trial with re-
spect to Specification 1 of the Charge. When testifying, KA was unable to say
her vulva was penetrated by Appellant’s penis. Rather, KA’s testimony con-
sisted of feeling “[p]ressure from behind” located on her vagina. Only when
considering the unlawfully obtained text messages is there legally sufficient
evidence beyond a reasonable doubt as to penile penetration. See United States
v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (applying the test for legal
sufficiency that after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt).
In his ruling denying the motion to suppress, the military judge concluded
SA LB did not violate Appellant’s Fourth Amendment rights. Then the military
judge assumed, arguendo, if SA LB violated Appellant’s Fourth Amendment
rights, SA LB “did not do so deliberately, recklessly, or with gross negligence.”
In his ruling, the military judge also found the case did not “involve any recur-
ring or systemic negligence on the part of law enforcement.” The military judge
concluded that SA LB “acted reasonably – especially considering the nature of
digital evidence and the realties [sic] faced when attempting to search and an-
alyze the same without knowing potentially involved parties’ phone numbers.”
Finally, the military judge determined that “[t]here is little public good to be
had in excluding evidence that was obtained from what must surely be a mis-
take, if even a mistake was made.”
I find that the military judge abused his discretion in that he improperly
applied the law. United States v. Lutcza, 76 M.J. 698, 701 (A.F. Ct. Crim. App.
2017) (citing United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (addi-
tional citation omitted)). SA LB in no way acted “reasonably” and her culpabil-
ity is at least grossly negligent. This court established that “[p]ractitioners
must generate specific warrants and search processes necessary to comply with
that specificity . . . .” United States v. Osorio, 66 M.J. 632, 637 (A.F. Ct. Crim.
App. 2008). SA LB did not conduct a search with specificity; rather, with the
exception of communications between Appellant and his counsel, SA LB was
52
United States v. Lattin, No. ACM 39859
unrestrained in the messages she viewed. SA LB testified that “every other
[not ADC] conversation that was there did not appear to be privileged commu-
nication and then [she] just took a good look through the messages for other
witnesses in the case, and for victim – messages with the victim, and messages
with [TD] specifically.” SA LB is accountable for her ignorance of the law that
was in existence at the time of her search and she was, at a minimum, grossly
negligent.
I find the facts of the case before the court are unlike Herring or Davis. SA
LB’s failure to understand the limitations of the Fourth Amendment is in con-
trast to law enforcement personnel relying upon an erroneous warrant data-
base entry as in Herring, or following then-existing precedent that was subse-
quently overruled as in Davis. Here, SA LB executed a search authorization,
which she drafted, that was facially deficient in limiting the scope of the search
to such a degree that an investigator could not reasonably have presumed the
search authorization to be valid. SA LB failed to recognize the search authori-
zation was facially deficient, which supports SA LB was not acting as a rea-
sonable law enforcement officer should. A reasonable law enforcement officer
would have understood that searching through text messages that predate the
offense under investigation exceeded the scope of a lawful search.
Further, it appears SA LB’s conduct was not an isolated incident. During
cross examination, SA LB agreed with the proposition that within the last two
years prior to her testimony it was her standard practice for phone searches
“[t]hat when there’s probable cause for anything on the phone, you can search
everything on the phone.” SA LB explained further that “[i]f the warrant allows
for the entire phone to be seized, then all the data on the phone becomes prop-
erty of the [G]overnment and can be searched at any time.” SA testified as to
her expansive view with regard to the scope of a search:
Because the original authority gave us authority to search the
entirety of the phone that includes his [sic] contents at the time
of seizure. So anything that’s in the phone belongs to the
[G]overnment from the time of seizure. So anything regarding
any allegation, or any other evidence of crimes is – if we have –
we were taught, you know, in FLETC[3 . . . if] I have a right to
be in the phone, and I see something that leads me to believe
there’s evidence of a crime, just like we did with finding the other
3 I understand FLETC to stand for Federal Law Enforcement Training Center.
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United States v. Lattin, No. ACM 39859
allegation of a sexual assault, that’s in play. So there was no
need to get an expanded scope.
SA LB’s expressed past practice with regard to her unrestrained view as to
the scope of search authorizations is clear indicia of an apparent pattern of
negligence with regard to the Fourth Amendment. In applying the Fourth
Amendment to electronic devices, the United States Court of Appeals for the
Armed Forces explained that “searches are expansive enough to allow investi-
gators access to places where incriminating materials may be hidden, yet not
so broad that they become the sort of free-for-all general searches the Fourth
Amendment was designed to prevent.” United States v. Richards, 76 M.J. 365,
370 (C.A.A.F. 2017). SA LB’s actions with regard to the search of Appellant’s
cellular phone were consistent with her misunderstanding that she was per-
mitted to conduct broad “free-for-all general searches.” Id. Contrary to the find-
ing of the military judge, which I find is a misapplication of Herring, I find SA
LB’s standard practice for phone searches was recurring negligence. Herring,
555 U.S. at 144.
I also do not agree with my colleagues’ finding that “exclusion of the evi-
dence seized because of [SA LB’s] unlawful search is far too drastic a response
to make her aware of her mistaken ideas and help ensure her conduct is not
repeated.” It is essential for law enforcement officials understand and apply
the limitations of the Fourth Amendment. SA LB did not. Unlike in Davis, SA
LB did not act “with an objectively ‘reasonable good-faith belief’ that [her] con-
duct [was] lawful.” Davis, 564 U.S. at 238 (citations omitted). A “reasonable
good-faith belief” must include conscientiously limiting the scope of a search to
the criminal offense under investigation. SA LB operated for two years under
the belief that once a cellular phone was seized, it was the property of the Gov-
ernment, and could be searched in its entirety untethered to the specific crim-
inal allegation under investigation. It is essential that when law enforcement
conduct a search of electronic media, which can store almost limitless personal
information, that it is done within the bounds of the Fourth Amendment. Con-
sidering SA LB’s claim she was acting consistent with her FLETC training,
failing to exclude the fruits of her unlawful search incentivizes future consti-
tutional violations; therefore, exclusion is necessary as deterrence and to drive
change in law enforcement training and practice. I recognize the costs to the
justice system by dismissing the specification. However, I find that exclusion
of the evidence here will result in appreciable deterrence of future unlawful
searches and outweigh those costs. Mil. R. Evid. 311(a)(3). I note Appellant’s
convictions for crimes against AW would not be disturbed by exclusion of the
evidence, and he may be sentenced for those crimes. As a result, I do not agree
with the majority opinion’s consideration of Appellant’s convictions for which
AW was the victim when weighing societal costs. While I find that after con-
sidering the factors set forth in United States v. Ceccolini, 435 U.S. 268, 278
54
United States v. Lattin, No. ACM 39859
(1978), the totality of the factors weigh against exclusion of KA’s testimony;
unlike my colleagues, I find the military judge erred by failing to suppress the
text messages as well as the derivative evidence pertaining to KA. Conse-
quently, I would set aside the finding of guilty, with prejudice, with regard to
Specification 1 of the Charge.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
55