United States v. Prescott ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39931
________________________
UNITED STATES
Appellee
v.
Deric W. PRESCOTT
Lieutenant Colonel (O-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 1 April 2022
________________________
Military Judge: Shelley W. Schools (arraignment); Jefferson B. Brown .
Approved sentence: Dismissal. Sentence adjudged 30 December 2019 by
GCM convened at Peterson Air Force Base, Colorado.
For Appellant: Lieutenant Colonel Todd J. Fanniff, USAF; Mark C.
Bruegger, Esquire; Frank J. Spinner, Esquire.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Jessica
L. Delaney, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, LEWIS, and RICHARDSON, Appellate Military
Judges.
Chief Judge JOHNSON delivered the opinion of the court, in which Sen-
ior Judge LEWIS and Judge RICHARDSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
JOHNSON, Chief Judge:
A general court-martial convened by the commander of 14th Air Force and
composed of officer members convicted Appellant, contrary to his pleas, of one
United States v. Prescott, No. ACM 39931
specification of attempted larceny and one specification of making a false offi-
cial statement in violation of Articles 80 and 107, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 880, 907.1 The court-martial sentenced Appellant
to be dismissed from the service. The commander of Space Operations Com-
mand, United States Space Force, approved the adjudged sentence.
Appellant raises the following issues2 for our review on appeal: (1) whether
Appellant’s convictions are legally and factually sufficient; (2) whether the mil-
itary judge abused his discretion by permitting the Government to offer evi-
dence of Appellant’s 2011 household goods claim under Military Rule of Evi-
dence (Mil. R. Evid.) 404(b); (3) whether trial counsel made improper argument
on findings; (4) whether Appellant’s sentence is inappropriately severe; (5)
whether the commander of Space Operations Command, United States Space
Force, lacked jurisdiction to take action on Appellant’s sentence; (6) whether
the charged victim’s subrogation and charge-back agreements with its agents
render Appellant’s conviction for attempted larceny legally and factually insuf-
ficient; (7) whether the military judge erred by granting the Government’s
challenge for cause against a court member; (8) whether the finding of guilty
as to attempted larceny was ambiguous; (9) whether the court-martial ceased
to be properly convened when 14th Air Force—the convening command—was
redesignated Space Operations Command; (10) whether Appellant is entitled
to relief for unreasonable post-trial delay; and (11) whether, in light of Ramos
v. Louisiana, 140 S. Ct. 1390 (2020), the military judge was required to instruct
the court members that a guilty verdict must be unanimous.3 We have carefully
considered issues (6), (7), (8), and (11) and find they do not require discussion
or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987);
United States v. Anderson, No. ACM 39969, 2022 CCA LEXIS 181, at *57 (A.F.
Ct. Crim. App. 25 Mar. 2022) (finding unanimous court-martial verdicts not
1 Unless otherwise indicated, all references to the UCMJ, the Rules for Courts-Martial
(R.C.M.), and the Military Rules of Evidence are to the Manual for Courts-Martial,
United States (2016 ed.).
2 For purposes of our analysis, we have consolidated Appellant’s first, second, and sev-
enth assignments of error within issue (1), and renumbered the other assignments of
error accordingly. Appellant raises the issue of legal and factual sufficiency in part
pursuant to United States v. Grostefon, 12 M.J. 431, 435 (C.M.A. 1982). In addition, we
address issues (5) and (9), regarding jurisdiction, together in our analysis below.
3 Appellant personally raises issues (6), (7), (8), (9), and (11) pursuant to Grostefon, 12
M.J. at 435. We granted Appellant’s motion for leave to file issue (11) on 25 February
2022.
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United States v. Prescott, No. ACM 39931
required in light of Ramos). We find no error materially prejudicial to Appel-
lant’s substantial rights, and we affirm the findings and sentence.
I. BACKGROUND
A. Appellant’s Household Goods Shipment
In 2011, Appellant transferred from Georgia to March Air Reserve Base
(ARB), California. Following the delivery of his household goods in July 2011,
Appellant submitted a claim in the Defense Personal Property System (DPS)4
in excess of $32,000.00 for 168 items he claimed had been either damaged or
were missing as a result of the move; Appellant received $16,309.22 for his
claim.
In 2014, Appellant transferred from March ARB to Joint Base San Antonio,
Texas. Following this move, Appellant submitted another claim in DPS for ap-
proximately $30,000.00 for 151 items that he claimed had been damaged or
gone missing. The shipping company paid Appellant $20,538.24 for the claim.
Appellant then filed a claim with the Air Force Claims Service Center (AFCSC)
for items for which the shipping company had not paid; Appellant received an
additional $6,995.90 payment from the AFCSC. The shipping company was
entitled to take possession of items for which it had paid full replacement
value, but did not do so, and Appellant retained these items.
In the summer of 2016, Appellant—who was single and did not live with
any dependents—was transferred from Joint Base San Antonio to be the wing
staff judge advocate at Minot Air Force Base (AFB), North Dakota. Before the
move, Appellant contacted HS, the Deputy Director of the Joint Personal Prop-
erty Shipping Office (JPPSO) in San Antonio, Texas, the office responsible for
overseeing the transportation of Appellant’s household goods to his new duty
location. Due to concerns Appellant expressed to HS about the move, HS ar-
ranged for Appellant’s 2016 household goods move to be a “Code 2” shipment,
rather than the “Code D” shipment typical of moves within the continental
United States. As HS explained at trial, a Code 2 shipment involves sealing
4 DPS is an online system for servicemembers undergoing a permanent change of sta-
tion to manage the shipment of their household goods. DPS includes a process for ser-
vicemembers to file a claim with the transportation service provider (TSP) responsible
for the move for damage or loss of household goods during the shipment. The TSP
adjudicates such claims. If the TSP does not pay the claim in full, the servicemember
has the option of filing a supplemental claim with the applicable military claims of-
fice—for Air Force personnel, the Air Force Claims Service Center.
3
United States v. Prescott, No. ACM 39931
the servicemember’s personal property inside wooden crates at the pickup lo-
cation. The containers then remain sealed throughout their transportation and
storage until they are opened at the ultimate delivery location for unloading.
Code 2 shipments are generally considered more secure than Code D ship-
ments.
Total Military Management (TMM) was the company selected to be the
transportation service provider (TSP)5 for Appellant’s 2016 relocation. TMM
management personnel were aware that Appellant had filed consecutive
claims in excess of $30,000.00 following his previous two moves, and as a result
they were wary of Appellant’s shipment. Although TMM had the overall con-
tract and responsibility for the move, TMM hired local companies to accom-
plish the packing and pickup of Appellant’s household goods at origin and the
delivery and unpacking at the destination—specifically, Lone Star Relocation
Service (Lone Star) in San Antonio and AAction Moving and Storage (AAction)
in Minot. TMM engaged a third company to carry the shipment between San
Antonio and Minot.
When Lone Star employees arrived at Appellant’s residence in San Antonio
to pack his household goods in July 2016, they found Appellant was having
repair work done on a portion of the house. After some initial hesitation but at
Appellant’s insistence, the Lone Star employees proceeded with packing and
loading Appellant’s personal property despite the presence of other workers,
construction activity, and a large dumpster in Appellant’s driveway.
Several circumstances resulted in certain irregularities in the documenta-
tion of the packing and pickup stage of the household goods move. For example,
the Lone Star employees used multiple rolls of numbered stickers, or “tags,” to
place on individual items or boxes in order to identify them on the written in-
ventory; this resulted in some different items having the same number associ-
ated with them, albeit designated from a different roll of numbers (“white”
tags, “new white” tags, and “blue” tags). In addition, Appellant complained that
the employees were marking an excessive number of exceptions for preexisting
damage on certain items. As a result of Appellant’s complaint, at the direction
of DS, Lone Star’s general manager at the time, several items were lined
through and marked “void” on the inventory in order to re-enter them and
change the description of the pre-existing damage. Furthermore, Lone Star
employees attempted to use “bingo sheets” in order to note which items had
5 TMM’s Senior Manager of Customer Support described the company as a “move man-
ager,” a company that subcontracts with an origin agent, carrier, and destination agent
to move the shipper’s household goods. This opinion will refer to TMM as a “TSP” based
on the documentation of Appellant’s move admitted into evidence.
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United States v. Prescott, No. ACM 39931
been placed in which crates. However, the bingo sheets, which were not man-
datory documents for the household goods shipment process, were only par-
tially filled out.
Nevertheless, on 13 July 2016 the packing and loading were complete and
Appellant’s household goods had been placed inside 12 wooden crates and a
“sofa box.” Appellant and the leader of the Lone Star crew at the site, JM, con-
ducted a walkthrough of Appellant’s residence to ensure no items to be shipped
had been left behind. The crew nailed the wooden crates shut and placed
“seals” (variously described as paper or plastic) on them before driving them to
the Lone Star warehouse. At the warehouse, Lone Star employees then placed
one or more metal bands around each crate for additional security.
Appellant’s household goods were transported from San Antonio to Minot,
where they remained in the AAction warehouse for some period of time until
the scheduled delivery date. After arrival at the warehouse, the crates and sofa
box were stored together in plain sight in their own row until delivery. Accord-
ing to DH, a former AAction employee who worked in the Minot warehouse at
the time, all 12 crates and the sofa box were delivered in good condition. Three
other individuals—QT, a then-active duty Air Force household goods quality
control inspector; TP, the former AAction Minot warehouse manager; and BT,
another former AAction employee in Minot—confirmed the crates had arrived
in Minot unopened, with the metal bands on and the seals for the most part
intact. When QT inspected the crates at the warehouse the day before they
were to be delivered to Appellant, he noted that one of the seals was “messed
up.” However, QT and other witnesses testified that the paper or plastic seals
on the containers sometimes rub off or break due to friction with other crates
during transit. In this case, QT testified, he determined that the seal in ques-
tion had rubbed off rather than been tampered with, and so informed Appellant
at delivery.
On 22 August 2016, AAction employees delivered the 12 crates and one sofa
box to Appellant’s on-base residence at Minot AFB. At TMM’s request, QT and
another Air Force quality assurance representative were initially present for
the delivery. The crates were opened at Appellant’s residence, and Appellant
was physically present when at least some of them were opened. As the AAc-
tion crew unloaded the items, they would call out the corresponding inventory
numbers to Appellant, who was responsible for marking off the items on the
inventory sheets as having been delivered. However, approximately 30 inven-
tory items were not marked as received at destination on the inventory sheets.
As the unloading progressed, Appellant expressed the opinion that a number
of items had not been delivered and were missing. The crates were completely
emptied, and AAction employees spent some amount of time searching the res-
idence for items that had not been marked as received. In addition, the “parts
5
United States v. Prescott, No. ACM 39931
box” containing hardware needed to reassemble furniture items, although
marked as received,6 also could not be found, which inhibited efforts to reas-
semble certain items of Appellant’s furniture.7 Ultimately, Appellant did not
sign the inventory on 22 August 2016. One of the AAction employees, BT, took
the inventory sheets with her at the end of the day.
NJ, TMM’s Senior Manager of Customer Support, had been in contact with
Appellant over the course of the delivery date. Initially, Appellant told NJ that
there were no “major” problems with the early stages of the unloading. How-
ever, as the day went on Appellant told NJ that he was missing items. When
NJ questioned how items could be missing when all of the sealed crates had
been delivered, Appellant opined that the seals had been broken and that
someone may have opened the crates while they were in storage. On 23 August
2016, the day after the delivery, NJ obtained an electronic copy of the unsigned
inventory sheet from AAction and emailed it to Appellant in order for Appel-
lant to identify specific items that were damaged, missing, or required reas-
sembly. NJ later testified that his purpose in doing so was to identify any ex-
pedited “essential items claims” for items Appellant would need immediately,
and to initiate a “trace” with Lone Star and AAction to search for specific miss-
ing items. NJ testified that Appellant was “very vague about his responses”
and never identified which specific inventory line items were missing. At trial,
Appellant testified he did not look at the electronic copy of the unsigned inven-
tory sheet NJ sent him until 2019, when he was preparing for his court-martial
with his trial defense counsel.
Appellant and GH, another AAction employee, eventually signed the writ-
ten inventory on 3 October 2016. Each of them individually signed all 12 pages
of the line-item inventory; each page had a piece of carbon paper and a copy of
the inventory page underneath. GH took the signed original inventory with
her, and Appellant retained the copies. Significantly, on the delivery date (22
August 2016) and the date Appellant and GH signed the inventory (3 October
2016), all of the copy pages were apparently imperfectly placed underneath the
originals, either too high or too low. As a result, the “X”s or check marks mark-
ing individual line items as received at the destination do not appear on the
6 Appellant confirmed in his testimony that he received the parts box at destination.
AAction employees testified that they looked for the parts box with Appellant on the
day of delivery and could not find it.
7 In the following weeks an AAction employee returned to Appellant’s residence multi-
ple times in order to reassemble furniture.
6
United States v. Prescott, No. ACM 39931
correct inventory lines on the copy as compared to the original. These discrep-
ancies are discernible, although not immediately obvious, from the placement
of the “X”s and check marks on the copy itself; however, the signatures of Ap-
pellant and GH and dates that they signed are more obviously out of place on
the copies.8
B. Appellant’s 2017 Household Goods Claims
Appellant submitted his household goods claim for the 2016 move electron-
ically in DPS in February or March 2017. He claimed 146 items as having been
damaged or gone missing, for a total claimed reimbursement amount of over
$41,000.00. The claim listed more than 40 items as entirely missing, which
prosecution witnesses estimated had a combined weight of over 1,000 pounds;
approximately 30 other items were described as missing parts or components,
such as shelves for bookcases and remote controls for multiple televisions. Sev-
eral items Appellant claimed as entirely missing are marked as having been
delivered on the original inventory sheet, but are not marked as having been
delivered on the copy of the inventory Appellant retained after signing on 3
October 2016, due to the alignment discrepancy with the copy described above.
At trial, Appellant testified he used the carbon copies of the inventory to sub-
mit his claim, coupled with his personal knowledge of which items had not been
delivered. Appellant did not amend his claim in DPS after he initially submit-
ted it.
On 9 March 2017, MP, a self-employed furniture maker and claims inspec-
tor hired by TMM, performed an inspection at Appellant’s residence of items
Appellant claimed had been damaged. At trial, MP described his role as an
inspector as “to determine if there is damage; and when it comes to wooden
furniture, determine what it would cost to repair, if it’s reparable.” He did not
search Appellant’s residence, but inspected the items Appellant presented to
him, and took photographs of some of them. MP testified that Appellant’s claim
was much larger than the “average” claim he inspected, which typically in-
volved between 15 and 20 items. MP prepared a written report of his inspection
for TMM. In his report, he did not specifically note whether or not there was
pre-existing damage to the items he inspected.
KF, TMM’s claims director, testified at trial that the company suspected
Appellant was engaged in fraud in part because Appellant had asserted over
1,000 pounds of household goods were missing from a sealed Code 2 shipment.
TMM employees also compared the 2017 claim with Appellant’s prior claims,
8 Unlike the notation of receipt and delivery on 22 August 2016 and the signatures on
3 October 2016, the carbon copies of the handwritten notations made at origin in San
Antonio in July 2016, including the tag numbers, item descriptions, pre-existing dam-
age notations, and origin signatures, were not misaligned.
7
United States v. Prescott, No. ACM 39931
and noted similarities in the types of damages and missing items that Appel-
lant had previously claimed. In addition, the fact that Appellant claimed mul-
tiple items that had been marked on the original inventory sheet as having
been delivered increased TMM’s suspicions. According to KF, the average
amount claimed for damage to personal property on a Code 2 shipment—ab-
sent a “catastrophic” event such as fire or mold—was under $2,500.00. TMM
denied Appellant’s DPS claim entirely.
After TMM denied his DPS claim, Appellant filed a claim with the AFCSC.
At some point, TMM personnel contacted the AFCSC to raise concerns about
the validity of Appellant’s claim. As of the time of Appellant’s trial, the AFCSC
had not adjudicated Appellant’s claim.
C. The Investigation and Appellant’s Trial Testimony
In April or May 2017, TMM personnel and DS from Lone Star met with
agents of the Air Force Office of Special Investigations (AFOSI) in San Antonio
to present their suspicions that Appellant’s household goods claim might be
fraudulent. As a result, the AFOSI initiated an investigation led by Special
Agent (SA) PD. The AFOSI developed a list of “suspicious” items by comparing
Appellant’s 2017 claim with the 2011 and 2014 claims TMM had brought to
them.
On 12 July 2017, SA PD and another agent interviewed Appellant at Minot
AFB. The AFOSI had obtained a search authorization for Appellant’s on-base
residence, and while the interview was going on other AFOSI agents searched
the residence.
Appellant waived his Article 31, UCMJ, 10 U.S.C. § 831, rights and agreed
to speak with the agents. The interview was videorecorded. While the inter-
view was in progress, SA PD received information from the agents searching
Appellant’s residence regarding items they found there. In the course of the
interview, the agents questioned Appellant about the 2016 move generally,
about his household goods claim, and about specific items the agents searching
Appellant’s residence had found. Appellant denied seeking payment for any
items he claimed as missing but had actually received. Notably, the agents
questioned Appellant about a third-row car seat from a Chevy Tahoe they
found in Appellant’s garage. According to Appellant, his Tahoe had two sepa-
rate seats in the third row, a left seat and a right seat. Appellant’s inventory
sheet indicated he had shipped two such seats; his DPS claim asserted that
one of them had not been delivered and was missing. The seat found in the
garage still had a tag on it from Appellant’s 2014 household goods shipment.
Appellant told the agents that he had bought the seat located in the garage on
eBay as a replacement for the missing seat; he did not state the seat in his
garage was the seat that actually had been delivered.
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United States v. Prescott, No. ACM 39931
Although the agents conducting the search identified several items they
considered suspicious with respect to the investigation and took several photo-
graphs, they did not seize any items from Appellant’s residence. The AFOSI
also did not search Appellant’s vehicle (a Chevy Tahoe) or attempt to inspect
it from the outside. While the AFOSI investigation continued, Appellant was
transferred from Minot AFB to Peterson AFB, Colorado.
Several months after the interview, Appellant sent the AFOSI a typed 21-
page signed memorandum, with an additional 17 pages of photographs and
other attachments. The memorandum primarily consisted of explanations of
particular items Appellant claimed as damaged or missing in his household
goods claim. In this memorandum, Appellant acknowledged he made certain
“mistakes” in his DPS claim and during his AFOSI interview. Notably, with
regard to the Tahoe seat, Appellant admitted he had no record of having bought
such a seat on eBay but now “believe[d] [he] recall[ed] that [he] purchased [two]
Tahoe replacement seats from a garage sale near Minot, North Dakota.” Ap-
pellant concluded the memorandum with a general denial that he had ever
intended “to deceive or to defraud the [G]overnment, to commit a wrongful tak-
ing, or anything else with a larcenous intent,” and that his “sole intent was and
still remains to make a valid claim for the losses and damage that [the trans-
portation companies] caused . . . .”
Appellant testified extensively at trial regarding the household goods ship-
ment, claim, and AFOSI investigation. Among other testimony, he denied he
was guilty of any alleged offenses. Notably, Appellant agreed his household
goods were placed in a total of 12 crates and one sofa box, and he did not believe
the Lone Star employees erroneously left anything behind in San Antonio. He
testified that when he first saw the delivered crates at his residence in Minot,
some of them had already been opened by the AAction moving crew, and the
seals on the unopened crates he saw had been “ripped.” Appellant acknowl-
edged he may have made some mistakes on his claim because he was working
from the misaligned carbon copies of the inventory sheets. Appellant testified
that he routinely made claims for full replacement value—as determined by
Internet searches—for items that had dents, scratches, or other minor damage,
based on his understanding that he was allowed to request such compensation,
and the additional understanding that the claims process was a negotiation
and the TSP might offer to settle for a lesser amount.
On cross-examination, Appellant agreed the evidence suggested that all of
the crates and the sofa box had been delivered, and that numerous items he
claimed as missing were marked as having been delivered on the inventory.
Specifically with regard to the Tahoe seat, for which Appellant claimed a re-
placement value of $995.00, he maintained that he bought two replacement
seats at a garage sale somewhere in Minot for between $25.00 and $75.00, and
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United States v. Prescott, No. ACM 39931
did not have a receipt for them. In response to questions from the court mem-
bers, Appellant testified that he “got rid of” one of the Tahoe seats in July or
August 2017, after he bought the two replacements, by putting it in “a stack of
stuff that [he] put in front of [his] yard” for anyone to take. Appellant also tes-
tified that between MP’s inspection on 9 March 2017 and the AFOSI search of
his house on 12 July 2017, he replaced all of the shelves from bookcases that
he had claimed as missing, acquiring many of them from “garage sales and
yard sales,” but he could not identify where he obtained particular shelves.
The court members found Appellant guilty of one specification of attempted
larceny of over $500.00 from TMM with regard to his 2017 claim, and of one
specification of making a false official statement to SA PD, in violation of Arti-
cles 80 and 107, UCMJ, respectively. The court members found Appellant not
guilty of one specification of larceny with regard to his 2014 household goods
claim, and of three specifications of making false official statements to SA PD,
in violation of Article 121, UCMJ, 10 U.S.C. § 921, and Article 107, UCMJ,
respectively.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Attempted Larceny
a. 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 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)). “[T]he term ‘reasonable doubt’
does not mean that the evidence must be free from any conflict . . . .” United
States v. King, 78 M.J. 218, 221 (C.A.A.F. 2018) (citation omitted). “[I]n resolv-
ing questions of legal sufficiency, we are bound to draw every reasonable infer-
ence 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). Thus, “[t]he
standard for legal sufficiency involves a very low threshold to sustain a convic-
tion.” King, 78 M.J. at 221 (alteration in original) (citation omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
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United States v. Prescott, No. ACM 39931
the witnesses, [we are] 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 consti-
tutes proof of each required element beyond a reasonable doubt.’” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (quoting Washington,
57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
Appellant’s conviction for attempted larceny of money of a value greater
than $500.00 in violation of Article 80, UCMJ, required the Government to
prove: (1) that Appellant did a certain overt act, that is, filed a household goods
claim which included items for which he was not entitled to payment; (2) that
the act was done with the specific intent to commit a certain offense under the
code, specifically larceny of money of a value greater than $500.00 from TMM;
(3) that the act amounted to more than mere preparation; and (4) that the act
apparently tended to effect the commission of the intended offense except for
TMM personnel discovering similarities between Appellant’s 2017 claim and
his 2011 and 2014 claims. See Manual for Courts-Martial, United States (2016
ed.) (MCM), pt. IV, ¶ 4.b. The elements of larceny in violation of Article 121,
UCMJ, 10 U.S.C. § 921, include: (1) that Appellant wrongfully took, obtained,
or withheld certain property from the possession of the owner or of any other
person; (2) that the property belonged to a certain person; (3) that the property
had a certain value; and (4) that the taking, obtaining, or withholding was with
the intent permanently to deprive or defraud another person of the use and
benefit of the property or permanently to appropriate the property for the use
of the accused or for any person other than the owner. MCM, pt. IV, ¶ 46.b.(1).
For purposes of Article 121, UCMJ, the term “person” includes, inter alia, a
corporation or organization. MCM, pt. IV, ¶ 46.c.(1)(c)(iv). “[A]n obtaining of
property from the possession of another is wrongful if the obtaining is done by
false pretense.” MCM, pt. IV, ¶ 46.c.(1)(d). “A false pretense is a false repre-
sentation of past or existing fact.” MCM, pt. IV, ¶ 46.c.(1)(e). “[T]he [G]overn-
ment is free to meet its burden of proof with circumstantial evidence . . . .”
King, 78 M.J. at 221 (citations omitted).
b. Analysis
i. General considerations
Appellant’s court-martial was lengthy and complex. More than 30 wit-
nesses testified during the findings phase, some of them multiple times, and
their testimony was sometimes in conflict. The documentary, photographic,
and videorecorded evidence was also extensive. Moreover, the trial was inex-
tricably related to the household goods claims system, which inherently in-
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United States v. Prescott, No. ACM 39931
volves a process of initial claim, negotiation, and settlement. Therefore, in or-
der to understand the evidence supporting Appellant’s convictions and
properly frame our analysis, it is appropriate to clarify certain foundational
aspects of the household good shipment and claims process established by the
evidence presented at Appellant’s trial.
First, it was permitted, and not fraudulent, for a claimant to claim full re-
placement value for an item that had suffered only minor damage. Second, a
claimant could elect to retain a claimed damaged item, even if a TSP had paid
to replace the item, provided the TSP did not exercise its right to take posses-
sion of the item for its salvage value within a particular time period. Third, if
a claimant made a claim for a damaged item, received payment, and then re-
paired the item himself, and the item was then damaged again in the same
way or a different way on a subsequent move, the claimant was entitled to seek
compensation for the new damage regardless of the prior payment for the same
item—even if he previously received full replacement value. Fourth, where a
claimant shipped a large amount of personal property, it is likely some amount
of damage could occur during the move, either before, while, or after the items
are contained in sealed crates.
Accordingly, we do not base our review of the legal and factual sufficiency
of Appellant’s conviction for attempted larceny on a determination that Appel-
lant claimed an excessive amount of money for an item that was actually dam-
aged during the move; nor do we base it on the mere fact that Appellant sought
compensation for damage to items which he had claimed had been damaged in
previous moves. Instead, we focus our analysis on whether the Government
proved beyond a reasonable doubt that Appellant wrongfully sought over
$500.00 in payment for items that either: (1) had been delivered, but Appellant
falsely claimed had not been delivered; or (2) had not been damaged during the
2016 move.
ii. Potential explanations for items claimed as missing
With that clarification, we next note that one of the most telling aspects of
the evidence in the Prosecution’s favor is that Appellant claimed approxi-
mately 70 items—with an estimated weight over 1,000 pounds—were entirely
or partially missing from his 2016 shipment, where his goods had been sealed
inside 12 crates and a sofa box, all of which containers had been delivered es-
sentially undamaged to his residence at Minot AFB. Appellant testified he be-
lieved that Lone Star employees had picked up all of the items on the inventory
and had not erroneously left anything behind in San Antonio, a conclusion sup-
ported by the testimony of the Lone Star crew supervisor, JM, and the other
available evidence. Therefore, three apparent possibilities remained for the
court members to consider with regard to items claimed missing: (1) that the
items were taken by moving company employees at some point in the process,
12
United States v. Prescott, No. ACM 39931
and not delivered; (2) that the items were delivered and Appellant mistakenly
but honestly claimed them as missing; (3) that the items were delivered and
Appellant knowingly falsely claimed them as missing, consistent with the
charge of attempted larceny; or some combination of these possibilities.
Turning to the first of these possibilities, the court members could reason-
ably conclude that Lone Star employees did not divert a significant amount of
Appellant’s property at origin in San Antonio by carrying it off or otherwise
disposing of it, rather than placing it in the crates to be sealed. JM testified
that the Lone Star employees had done no such thing. Appellant did not report
or testify to observing any such activity, and there is no other evidence of it.9
Such activity would presumably have been readily observable by other employ-
ees, and so would likely have required some degree of collusion among them,
which the court members could reasonably find unlikely. Moreover, such an
explanation is implausible indeed for large items Appellant subsequently
claimed as missing, such as the Tahoe seat, an entire bookcase, and entire
boxes of clothing. In addition, the court members may have considered that
many of the items claimed as missing were of little independent value and un-
likely targets for pilferage, such as shelves from bookcases or remote control
devices.
For similar reasons, the court members could have found it implausible
that AAction employees carried off or otherwise disposed of these items after
the crates were opened in front of Appellant’s residence at Minot AFB. Testi-
mony indicated the crates were entirely emptied, and there is no specific evi-
dence any such theft actually occurred.
Another theory, and the one Appellant seemed to favor when discussing the
missing items with NJ (TMM’s Senior Manager of Customer Support) and with
the AFOSI, was that the crates had been opened and items taken from them
between the time the crates had been nailed shut and the seals placed at Ap-
pellant’s San Antonio residence, and when they were opened at his residence
at Minot AFB. However, the court members could reasonably conclude this ex-
planation was also highly unlikely. First, QT, the Air Force quality control in-
spector, testified that he inspected the crates at the AAction warehouse in
Minot the day before delivery and, with one exception, found the seals and
metal bands intact. With respect to the “messed up” seal, he determined it had
been disturbed by friction with other crates during transit. Even if the court
members considered that the seals might have been broken, or were replaced
with unbroken ones, and that the metal bands might have been removed to
9 Similarly, there is no evidence whatsoever that the construction workers improperly
removed any of Appellant’s household goods, or that the items were deposited in the
dumpster in his driveway.
13
United States v. Prescott, No. ACM 39931
allow access to the crates and then replaced, they still could have found theft
from the sealed crates to be an unpersuasive explanation. The evidence indi-
cated that Appellant claimed items as missing from multiple crates. Moreover,
as noted above, the independent value of many of the missing items was rela-
tively low.10 The members could have reasonably concluded the likelihood was
extremely low that larcenous persons with access to the crates went to the
trouble of breaking the seals, removing the metal bands, and removing the
nails from multiple crates, only to take items of relatively little value to
thieves,11 and then seal the crates again, either without detection by, or in col-
lusion with, others.
The court members may also reasonably have concluded that Appellant’s
household goods claim cannot be entirely explained by innocent mistakes. It is
true that Appellant owned numerous duplicative items of household goods and
furniture of particular types, such as bookshelves and cat furniture, which
could in theory increase the potential for mistakes in claiming particular items.
However, Appellant was by his own admission, and supported by the other
evidence and testimony, very particular about his household goods and metic-
ulous in pursuing household goods claims. Moreover, Appellant spent at least
five months living in the residence where his household goods had been deliv-
ered before he filed his claim in DPS, and he testified he searched his house for
the missing items. Appellant did not amend his claim at any point during the
nearly two months it was pending with TMM. The court members could rea-
sonably have found some of the items claimed as missing, such as the Tahoe
seat, were very unlikely to be mistakenly overlooked, and that it was implau-
sible Appellant would have overlooked an aggregate 1,000 pounds worth of
goods.
Furthermore, the court members could have found the discrepancy with
Appellant’s carbon copies of the inventory sheets particularly telling with re-
gard to the absence of mistake. Appellant claimed multiple items that were
marked as delivered on the original inventory, but appeared to be marked as
not delivered on Appellant’s copy, including one of the Tahoe seats. Thus, the
court members could reasonably infer Appellant believed the inventory inac-
curately indicated certain items had not been delivered, and then based his
DPS claim not on what items had been actually delivered, but what items he
believed he could get TMM to pay for based on the documents.
10 However, the replacement value for the missing items, or the items from which parts
or components were missing, for which Appellant was permitted to claim compensa-
tion, was much higher than the likely resale value of the missing items and parts.
11 Appellant did not claim any of the computers or televisions listed on the separate
“High Risk/High Value Inventory” as missing.
14
United States v. Prescott, No. ACM 39931
Accordingly, the court members could reasonably have found Appellant
falsely seeking payment for items he claimed as missing, which had in fact
been delivered, to be the only plausible explanation, considering the alterna-
tive explanations of employee pilfering or innocent mistakes. Additional rea-
sonable inferences from the evidence further support such a conclusion.
iii. Implausible explanations and other considerations
Despite Appellant’s insistence on his innocence, the court members could
reasonably have found some of his statements to AFOSI and testimony implau-
sible and generally damaging to his credibility.
The court members could reasonably have found Appellant’s explanation of
the Tahoe seat the AFOSI found in his garage to be evidence of consciousness
of guilt. During Appellant’s AFOSI interview, the agents confronted him with
the fact that he had claimed a Tahoe seat had not been delivered, yet one had
been found in his garage. One might expect Appellant’s response would have
been simple—he shipped two Tahoe seats, but only one was delivered, and the
one that arrived was the one in his garage. But that is not what he said. Ap-
pellant immediately responded (wrongly) that he had bought the Tahoe seat in
his garage on eBay as a replacement. In other words, Appellant did not respond
as someone who had an obvious explanation for the item, but as someone who
had been discovered with an unexplained Tahoe seat in his garage.
Appellant might have recovered by later explaining he was confused during
the interview and subsequently clarifying the Tahoe seat in the garage was not
a replacement he had purchased, especially as the seat had a sticker from his
2014 move on it. Instead, his explanation continued to grow more strained. In
his written memorandum to AFOSI prepared months after the interview, Ap-
pellant explained that his confident assertion he had purchased the seat on
eBay had been a mistake, and that he had instead found and bought a match-
ing set of replacement Tahoe seats in the same color as the originals at a garage
sale in Minot at some point between August 2016 and July 2017, at a location
he could no longer remember, and forgot to mention during the interview. The
court members may have found this explanation both unlikely and suspiciously
convenient, in that unlike an online purchase, the purported garage sale pro-
vided no receipt or other proof beyond Appellant’s word. At trial, Appellant
elaborated on this explanation in ways the court members might reasonably
have found additionally suspicious. For example, Appellant—despite defense
evidence that he had been diagnosed with a “hoarding disorder”12 and retained
12 In April 2019, a board convened pursuant to R.C.M. 706 determined that Appellant
did not suffer from a severe mental disease or defect at the time of the alleged offenses,
15
United States v. Prescott, No. ACM 39931
many superfluous furnishings and items of various types, who was meticulous
about seeking compensation for damage to his property, and who claimed
$995.00 as the replacement value of the Tahoe seat in his DPS claim—testified
he simply discarded one of the Tahoe seats after he bought the two replace-
ments, such that at the time of his trial he owned only two Tahoe seats.13 The
court members might reasonably have doubted this claim of disposing of the
third Tahoe seat, again without supporting evidence, and considered whether
the two third-row Tahoe seats Appellant claimed to own in November 2019,
during his court-martial, were the same two he owned before his 2016 move.
Appellant made similar claims that he bought at garage sales replacement
shelves for the bookcase shelves he claimed were missing from his household
goods shipment. Again, Appellant provided no details as to where he had pur-
chased the shelves or other confirming evidence. The court members might
reasonably have doubted this convenient explanation as to why his bookcases
had shelves in them when the AFOSI searched his residence in July 2017, after
Appellant displayed bookcases with missing shelves to the claims inspector MP
on 9 March 2017. The court members may have also considered that book-
shelves would be relatively easy to remove and conceal, for purposes of making
a false claim; that the shelves would seem to have relatively little independent
value as targets of pilferage; and that Appellant had made similar assertions
of missing bookshelves in his previous DPS claims.
iv. Evidence with respect to specific items
Next we consider whether the Government introduced sufficient evidence
with regard to particular claimed items to permit the court members to find
beyond a reasonable doubt that Appellant sought to obtain more than $500.00
from TMM by false pretenses. What follows is not an exhaustive list, but in-
cludes some of the items the court members could reasonably have concluded
the Government proved Appellant falsely claimed. The items Appellant
claimed fall generally into one of two categories: missing items and damaged
items.
v. Specific items claimed as missing
Appellant claimed $995.00 replacement value for the Tahoe seat he as-
serted had not been delivered. As discussed above, both Tahoe seats were
marked as delivered on the original inventory, although only one appeared to
that he was able to understand the nature and quality of his conduct, and that he was
able to understand and participate in the proceedings against him.
13The Defense’s expert witness in forensic psychology who diagnosed Appellant’s
hoarding disorder admitted on cross-examination it “was unusual” that someone with
that diagnosis would discard such an item, and he was “a little surprised to hear that.”
16
United States v. Prescott, No. ACM 39931
be so marked on Appellant’s carbon copy. The court members could reasonably
conclude the Tahoe seat was not misplaced during shipment. Due to its size,
the court members reasonably may also have found the Tahoe seat was very
unlikely to have been pilfered by moving company employees, or to have been
overlooked by Appellant if it was delivered to his residence. The court members
could have reasonably found Appellant’s evolving explanation for the presence
of the Tahoe seat in his garage to be improbable, suspiciously convenient, and
indicative of consciousness of guilt. Although the AFOSI agents only found one
Tahoe seat at Appellant’s residence, the court members could reasonably have
concluded Appellant—intent on falsely claiming one seat as undelivered—had
replaced only one of the seats in his Tahoe, or put one of the seats somewhere
the agents did not see it.
Appellant claimed over $2,300.00 for what he asserted were shelves miss-
ing from furniture.14 As discussed above, the court members could have rea-
sonably found it unlikely these shelves were lost, pilfered by movers, or over-
looked by Appellant when he filed his claim in DPS. The court members could
have reasonably found Appellant’s claim that he bought replacement shelves
at unspecified garage sales after MP’s inspection on 9 March 2017 but before
the AFOSI search on 12 July 2017 to be suspiciously convenient and non-cred-
ible. They likely also noticed Appellant made similar claims for lost shelves in
2011 and 2014. The court members may have reasonably concluded the shelves
were delivered and Appellant simply concealed them during MP’s inspection
in order to claim full replacement value for several items of furniture.
Appellant claimed $298.00 for a “bookcase,” tagged as inventory number
61, he asserted was not delivered, but which the AFOSI agents found in his
house with all its shelves in place.
Appellant claimed $35.99 for a missing “cat pole,” tagged as inventory num-
ber 116, one of several items of furniture Appellant owned for his pet cats. This
item was marked as having been delivered on the original inventory form, but
was not marked as delivered on Appellant’s carbon copy. The AFOSI agents
found this item in Appellant’s home during their search on 12 July 2017. Ap-
pellant asserted that claiming this item had been a mistake on his part. How-
ever, under the circumstances, the court members could reasonably doubt Ap-
pellant’s explanation and conclude Appellant attempted to seek compensation
14 Appellant claimed additional damage to some of these items, but as Appellant’s
usual practice was to claim full replacement value for any loss or damage, in nearly all
of these instances he claimed the same amount per item irrespective of whether miss-
ing shelves was the only loss or damage. In addition, this total does not include an
entire bookcase Appellant claimed as missing.
17
United States v. Prescott, No. ACM 39931
for an item he knew had been delivered but was marked as not having been
delivered on his carbon copy of the inventory.
Appellant claimed a total of $63.98 for three undelivered remote controls
for various devices, and an additional $1,510.00 for five other items with dam-
age that included missing remote controls. For the reasons discussed above,
the court members may reasonably have found it unlikely that these were pil-
fered. They may have also considered that such devices could be easily con-
cealed by a person intent on making a false claim. They may have additionally
noted, and found suspicious, that Appellant had previously claimed multiple
remote controls had gone missing during his 2011 and 2014 household goods
shipments.
Appellant claimed $299.00 for a box tagged as inventory item number 22
and identified as “file” on the inventory form. Appellant claimed the box con-
tained papers and miscellaneous items taken from a cabinet; it was one of sev-
eral boxes of items Appellant claimed had not been delivered. Due to the dis-
crepancy between the original inventory and Appellant’s carbon copy described
above, the box was marked as undelivered on Appellant’s copy but marked as
delivered on the original. One of the defense exhibits admitted at trial is a
photograph that Appellant testified was taken inside his residence on 22 Au-
gust 2016; visible on the floor is a box labeled and tagged “22” with “Paperwork
Guest Room” written on the side. At trial, Appellant testified that his claim for
this item was a mistake. However, based on the evidence, the court members
could reasonably conclude the box had been delivered, that Appellant had not
innocently overlooked it when he made his claim, and that he falsely attempted
to obtain payment for it to which he was not entitled.
vi. Specific items claimed as damaged
At trial and on appeal the Government has argued Appellant also falsely
claimed damage had been incurred on several items during his 2016 move that
was actually pre-existing damage. Several of these items are worth noting here
as supporting Appellant’s conviction for attempted larceny.
In 2014, Appellant made a claim for damage to the top left corner of a par-
ticular wooden bookcase. The claim inspector who inspected Appellant’s 2014
claim took a photograph of the claimed damage, consisting of minor scuff
and/or paint marks. In his 2017 DPS claim, Appellant again claimed for dam-
age to the top left corner of this bookcase, seeking $298.00. However, Lone Star
employees took a photograph of the condition of the piece before loading it into
a crate, and this pre-move photograph appears to depict the same “damage”
that Appellant had claimed in 2014. In other circumstances reasonable court
members might have attributed this to a simple mistake on Appellant’s part;
18
United States v. Prescott, No. ACM 39931
however, given the totality of the evidence such court members may have in-
stead reasonably found the evidence indicative of Appellant’s intent to claim
compensation from TMM to which he knew he was not entitled.
In 2011, Appellant claimed $799.99 for a Fender speaker with damage de-
scribed as “rear plug/outlet broken off/cracked.” A photograph of the damage
was entered in evidence at trial. In 2017, Appellant claimed $649.00 for the
same speaker with the damage described as “Backoutlet smashed in.” The
speaker was also photographed for the 2017 claim, and that photograph was
introduced at trial. The photographs from 2011 and 2017 appear to show the
exact same damage to the speaker, with one of the two rear outlet plugs pushed
into the speaker and to one side in a distinctive way. In his memorandum to
the AFOSI, Appellant asserted that “[a]round 2013 [he] was able to pull the
outlet/plug back out,” but in 2016 the same “exact damage” happened again to
the same outlet plug. However, in light of the photographs and the totality of
the evidence, the court members reasonably could have disbelieved Appellant’s
explanation and concluded that in 2017 Appellant fraudulently sought com-
pensation for pre-existing damage to the speaker.
In 2011, Appellant claimed a total of $798.00 for a Bowflex adjustable
dumbbell weight set he asserted was missing some of its weights and had a
scratched and dented frame. In 2014, Appellant again claimed the set was
missing some of its weights and claimed $369.00. In 2017, Appellant again
claimed weights were missing from the set and that the frame was scratched
and dented, seeking replacement value of $799.00. In addition to noting an
improbable pattern in Appellant’s claims, for the reasons indicated above, the
court members might reasonably doubt that these two individual weights
would have been singled out for pilfering during the shipment. The court mem-
bers might also have considered that someone intent on making a false claim
could easily conceal the two weights, claim full replacement value for the set,
and still make use of the weight set.
In 2011, Appellant claimed $39.99 for a metal music stand that had been
bent during the move. The claims inspector in 2011 took a photograph of the
music stand which was introduced at trial. The claims inspector testified the
apparent damage was “the left-hand side of the music stand is sloping down so
the whole thing has a curve to it across the top.” In 2014, Appellant again
claimed a metal music stand that was “bent” at the “top,” receiving the $59.00
he claimed for it. In 2017, Appellant claimed for a music stand that was “bent”
on the “top part,” seeking $38.00; the Government introduced at trial a photo
of this item as well. Appellant testified that the music stand he claimed for in
2014 was not the same one he claimed for in 2017. However, on cross-exami-
nation, trial counsel confronted Appellant with his written memorandum to
the AFOSI wherein he stated it was the same stand in both claims, that he had
19
United States v. Prescott, No. ACM 39931
self-repaired it after the 2014 move, and that it had been damaged again in
2016. Appellant testified that he had been mistaken in his memorandum. How-
ever, under the circumstances, the court members could reasonably conclude
Appellant falsely claimed that pre-existing damage to the music stand had
been caused during the 2016 shipment.
In 2014, Appellant claimed $79.00 for a “crack” in a plastic garage shelf
unit. The 2014 claim inspector took a photograph of the item which was intro-
duced as evidence at Appellant’s trial. In 2017, Appellant again claimed the
garage shelf unit, seeking $72.00 due to “[s]helf cracked from disassembly.”
MP, the 2017 claim inspector, also took photographs of the shelf which ap-
peared to show the same crack in the unit. At trial, on cross-examination and
in response to court member questions, Appellant acknowledged he claimed
the same shelf unit in 2014 and 2017, and that he had not attempted to repair
the crack itself. He testified that the shelf unit was designed to be disassem-
bled; that he had glued the pole of the shelf in place so that movers would not
take it apart; that the movers had nevertheless taken the item apart; and this
disassembly was the “damage” to the unit that he had claimed. However, the
photographs of the damage taken by the claims inspectors in 2014 and 2017,
presumably based on Appellant’s explanation of the claim, both clearly depict
the same crack. Under the circumstances, the court members could reasonably
have disbelieved Appellant’s explanation for the claim and found Appellant
wrongfully sought compensation from TMM for pre-existing damage to the
shelf unit.
vii. Appellant’s arguments regarding attempted larceny
Appellant makes several arguments attacking the sufficiency of the evi-
dence supporting his conviction for attempted larceny. We have accounted for
some of these arguments in our analysis above, and not all of them warrant
discussion, but we address the most significant remaining points here.
Appellant cites several actions on his part regarding his household goods
shipment that he contends are inconsistent with a scheme to submit a fraudu-
lent claim. For example, he argues that drawing attention to himself and his
prior claims by contacting JPPSO before his move, and agreeing to a more se-
cure Code 2 containerized shipment, would not make sense if Appellant had
been already intent on making an extensive claim for lost and damaged items.
Such reasoning does not overcome the evidence described above that Appellant
did, in fact, make false claims. Moreover, the relevant point in time with regard
to Appellant’s intent to commit larceny, for purposes of his conviction, was not
before the shipment. The relevant point was when he made his claim after the
shipment, perhaps informed by what he believed were advantageous discrep-
ancies in the documents. In addition, the evidence Appellant cites does not nec-
essarily disprove his early intent to pursue a fraudulent claim. His previous
20
United States v. Prescott, No. ACM 39931
experience with securing a large settlement for his prior household goods
claim, and lack of prior experience with Code 2 shipments, may have made him
overconfident in his ability to secure a settlement for the 2016 shipment.
Appellant cites errors in the AFOSI investigation and report, which SA PD
admitted during his testimony. For example, SA PD admitted it was a mistake
not to seize suspicious items found during the search of Appellant’s residence
or to examine his vehicle, and that some conclusions regarding false claims
included in the report of investigation were inaccurate. However, Appellant’s
conviction was not based on AFOSI’s report or evidence the agents failed to
collect, but on the evidence introduced at his trial. As described above, the ev-
idence and reasonable inferences derived from it support Appellant’s convic-
tion.
Appellant’s strongest argument has to do with the specific wording of the
specification of attempted larceny of which he was convicted. The specification
reads, in pertinent part:
[Appellant] did, at or near Minot [AFB], North Dakota, between
on or about 1 February 2017 and on or about 30 April 2017, at-
tempt to steal money of a value greater than $500[.00], the prop-
erty of [TMM], by filing a household goods claim which included
items for which [Appellant] was not entitled claims payment and
would have resulted in such payment except for [TMM] personnel
discovering similarities between [Appellant’s] 2017 household
goods claim and [his] 2011 and 2014 household goods claims.
(Emphasis added). The reason why an attempt to commit an offense charged
under Article 80, UCMJ, did not succeed is not an element of the offense of
attempt, and was not required to be included in the specification. Nevertheless,
Appellant argues that the Government, having elected to include this language
in the specification, was required to prove it beyond a reasonable doubt in order
to secure Appellant’s conviction as charged.
In addition, Appellant cites the following exchange during the direct exam-
ination of KF, TMM’s claims director:
Q. [Trial Counsel:] Ma’am, you talked previously about your
foreknowledge of the 2011 and 2014 claims at the time that you
evaluated the 2017 claim. Is that correct?
A. [KF:] Correct.
Q. Had you made comparisons of the 2011 and 2014 claim to the
2017 claim at the time you evaluated that claim?
A. Yes.
21
United States v. Prescott, No. ACM 39931
Q. And did the similarities between the 2011, 2014, and 2017
claims play into TMM's decision to deny the 2017 claim?
...
A. Yeah.
Q. I’m sorry?
A. Yes.
Q. Okay. And can you explain to the members how so? How did
the 2011 and 2014 claims play into your decision to deny the
2017 claim?
A. Both due to the similarities in the claim’s items, the types of
damage to the items that were being claimed, but most im-
portantly due to the size and dollar amount of each one of those
claims.
Q. Is it possible that but for the information you had about the
2011 and 2014 claims, that the 2017 claim could have been ad-
judicated differently?
A. I think it’s possible that it would have been adjudicated dif-
ferently, but I think that there is a strong likelihood that there
still would have been a similar outcome as to this.
Q. And why do you say that?
A. Based on the manner in which we moved the shipment and
retained oversight of the shipment, claims -- or shipments that
we handle in this type of manner have not ever before led up to
this kind of claim, and it would have been suspect at that time,
regardless of the previous other claims.
Shortly thereafter, on cross-examination, KF had the following exchange
with trial defense counsel:
Q. [Trial Defense Counsel:] [ ] And, correct me if I get this wrong,
but I believe your testimony was that you, even without that
data, 2011 and 2014, both the claims, and in 2014 the claims and
inspection report, we may have -- you may have been at the same
place. Correct?
A. [KF:] Yes. I think there would have been a portion of the claim
that we would have referred or transferred due to suspect that
it was not a true and valid claim.
Q. And what portion is that, ma’am?
22
United States v. Prescott, No. ACM 39931
A. The missing, and in addition some of probably the damages,
too.
Appellant contends KF’s testimony that there was a “strong likelihood” of
a “similar outcome” for Appellant’s 2017 claim even without the information
from the 2011 and 2014 claims defeats proof beyond a reasonable doubt that
Appellant’s attempted larceny failed because of TMM’s knowledge of his 2011
and 2014 household goods claims.
In response, the Government admits it is “unclear” why it chose to include
this “surplus” language regarding the reason Appellant’s attempted larceny
was unsuccessful. However, the Government suggests that if this court finds
the Prosecution failed to prove this language, this court could “strike” the sur-
plus language from the specification. We disagree. “While Article 66, UCMJ,
[10 U.S.C. § 866,] provides extensive powers of appellate review to service
[C]ourts of [C]riminal [A]ppeal, it does not permit after-the-fact revisions to
the charge sheet that sweep more broadly than what was alleged, and what an
appellant was convicted of, at trial.” United States v. English, 79 M.J. 116, 122
(C.A.A.F. 2019). To strike the language as the Government proposes would be
to “affirm a charge with a broader factual basis than the Government originally
charged and proceeded on at trial,” in violation of Appellant’s due process
rights. Id.Therefore, the question becomes whether the Government proved the “sur-
plus” language, notwithstanding KF’s testimony, such that the court members
could find it beyond a reasonable doubt. We conclude the evidence does support
such a finding.
First, in light of the totality of the evidence, the court members could have
reasonably found unpersuasive KF’s speculative opinion about what would
have happened to Appellant’s 2017 claim if TMM had not had the information
from his 2011 and 2014 claims. The evidence indicated TMM’s knowledge of
the prior claims significantly influenced the company’s actions and the pro-
gress of the subsequent AFOSI investigation. KF testified that Appellant’s case
presented “unique circumstances;” that she had never in 11 years previously
encountered an individual who had “experienced” claims in excess of
$30,000.00 on three consecutive moves; and agreed that it was because Appel-
lant had made such large previous claims that his 2016 shipment was “under
the microscope.” Not only the amount of money claimed and number of items,
but also the similar nature of the claims from one move to the next is striking.
TMM took evidence of the prior claims to the AFOSI which led to the criminal
investigation against Appellant. SA PD testified the AFOSI used this infor-
mation from Appellant’s prior claims to develop their list of suspicious items to
investigate. The court members were free to draw their own conclusions from
23
United States v. Prescott, No. ACM 39931
the evidence about the significance of Appellant’s prior claims rather than rely
on KF’s speculation.
Second, even if the court members credited KF’s speculation, taken as a
whole her testimony indicated KF believed TMM would have paid part of Ap-
pellant’s claim but for its knowledge of the 2011 and 2014 claims. KF’s testi-
mony on cross-examination that there “would have been a portion of the claim”
that TMM would not have paid implied TMM would have paid for another por-
tion—specifically, some of the claims for damaged items. Above, we analyzed
several items for which the court members could reasonably conclude Appel-
lant fraudulently sought payment from TMM for pre-existing damages. With
regard to most of these items—specifically the Fender speaker, Bowflex
weights, music stand, and plastic shelf unit—evidence from 2011 and 2014
played a vital role in demonstrating the fraudulent nature of the claims. The
total amount claimed for these four items alone was over $1,500.00. Accord-
ingly, the court members reasonably could have found TMM would have paid
Appellant over $500.00 for fraudulent claims “except for [TMM] personnel dis-
covering similarities between [Appellant’s] 2017 household goods claim and
[his] 2011 and 2014 household goods claims,” as charged.
Accordingly, the evidence supports the court members’ finding that Appel-
lant is guilty of the specification as charged.
viii. Conclusion with Regard to Attempted Larceny
Drawing every reasonable inference from the evidence of record in favor of
the Government, we conclude the evidence was legally sufficient to support
Appellant’s conviction for attempted larceny beyond a reasonable doubt. Addi-
tionally, having weighed 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.
2. False Official Statement
a. Additional Background
In 2011, Appellant sought compensation for damage to a Fender speaker,
specifically to an input plug on the rear of the item. Appellant did not claim for
damage to the front of the speaker. At trial, the Government introduced the
testimony of WW, the claims inspector who inspected Appellant’s 2011 claim
on behalf of the TSP, and a photograph WW took of the claimed damage. WW
testified that he did not observe or photograph any damage to the front of the
speaker.
In 2017, Appellant again claimed damage to the “back outlet” of the same
Fender speaker. Appellant’s written memo to AFOSI addressed this item. Ap-
pellant stated,
24
United States v. Prescott, No. ACM 39931
In 2011, the movers smashed in the front screen and broke the
back outlet. Around 2013, I was able to pull the outlet/plug back
out. In 2016, there were additional scratches on the speaker and
I noticed that the rear plug had broken again. I put in a claim
for the broken rear plug.
At trial, the Government introduced a photograph the claim inspector, MP,
took in March 2017 of the claimed damage to the rear of the speaker. In his
testimony, MP described the damage as one of the “recessed parallel inputs”
being missing.
During Appellant’s cross-examination, he acknowledged that if the front of
one of his speakers was “smashed in,” he “usually would” claim it unless he
forgot to for some reason. He also acknowledged he was “very detailed” with
his household goods claims.
b. Law
The standards applicable to our review of the legal and factual sufficiency
of a conviction are set forth in Section II.A.1.a., supra.
Appellant’s conviction for making a false official statement in violation of
Article 107, UCMJ, required the Government to prove: (1) that Appellant
signed a certain official document or made a certain official statement; (2) that
the document or statement was false in certain particulars; (3) that Appellant
knew it to be false when he signed or made it; and (4) that the false document
or statement was made with the intent to deceive. See MCM, pt. IV, ¶ 31.b.
“[S]tatements to investigators [may] be prosecuted under Article 107, UCMJ,
as false official statements.” United States v. Nelson, 53 M.J. 319, 326 (C.A.A.F.
2000).
c. Analysis
The court members found Appellant guilty of the following specification:
[Appellant] did, at or near Peterson [AFB], Colorado,[15] between
on or about 25 January 2018 and on or about 6 February 2018,
with intent to deceive, make to [SA PD], an official statement, to
wit: “In 2011, the movers smashed in the front screen and broke
the back outlet. Around 2013, I was able to pull the outlet/plug
back out. In 2016, there were additional scratches on the
speaker and I noticed that the rear plug had broken again. I put
in a claim for the broken rear plug,” or words to that effect, which
15 Appellant was reassigned from Minot AFB to Peterson AFB, Colorado, after the
AFOSI investigation began.
25
United States v. Prescott, No. ACM 39931
statement was totally false, and was then known by [Appellant]
to be so false.
We conclude the court members—who observed Appellant and the other
witnesses testify in person and could assess their credibility—could reasonably
find the charged statement was false. Based on the evidence from 2011, the
court members could find that contrary to Appellant’s assertion the front of the
speaker was not “smashed in.” In light of the entirety of the evidence in the
case, the court members could also find that the rear plug of the speaker was
not “repaired” by Appellant himself prior to his 2016 move, and then coinci-
dentally damaged in the same location again in 2016, or that the speaker had
new “scratches” for which Appellant did not claim. The court members could
further reasonably conclude Appellant knowingly made these false statements
with the intent to deceive, in an attempt to deflect suspicion that he falsely
claimed pre-existing damage was incurred during his 2016 household goods
shipment.
Drawing every reasonable inference from the evidence of record in favor of
the Government, we conclude the evidence was legally sufficient to support
Appellant’s conviction for false official statement beyond a reasonable doubt.
Additionally, having weighed the evidence in the record of trial and having
made allowances for not having personally observed the witnesses, we are con-
vinced of Appellant’s guilt beyond a reasonable doubt.
B. Mil. R. Evid. 404(b)
1. Additional Background
Appellant was not charged with committing an offense in relation to his
2011 DPS claim. However, on 30 November 2018, pursuant to Mil. R. Evid.
404(b), the Government provided notice to the Defense of, inter alia, the fol-
lowing:
Between on or about 29 June 2011 and on or about 23 November
2011, [Appellant] stole money of a value greater than $500[.00]
by fraudulently claiming portions of his household goods ship-
ment were either damaged or lost and receiving payment for
items which were not damaged or lost. This is evidence of mo-
tive, intent, common scheme/plan, knowledge, and lack of mis-
take for the 2014 and 2017 claim[s].
Before trial, the Defense submitted a motion in limine which sought to pre-
clude the Government from introducing “any discussion of the total claims
amounts from [Appellant’s] 2011, 2014, and 2017 [sic] moves, a comparison of
these claimed amounts, and any evidence discussing the ‘catastrophic’ nature
of the claims” as “irrelevant, barred by [Mil. R. Evid.] 404(b) . . . and unduly
26
United States v. Prescott, No. ACM 39931
prejudicial pursuant to [Mil. R. Evid.] 403.” The Government opposed the de-
fense motion. Specifically with regard to evidence of the 2011 claim, the Gov-
ernment’s written opposition reiterated that evidence of the 2011 claim was
relevant to show Appellant’s motive, intent, common plan or scheme,
knowledge, and lack of mistake with regard to his 2014 and 2017 claims, as
well as his “opportunity” to file fraudulent claims. The Government further
contended the probative value of the 2011 claim was “extremely high,” and the
danger of any unfair prejudice to Appellant was low.
The military judge conducted a hearing on the motion and received argu-
ment from both parties. During argument, civilian trial defense counsel clari-
fied that the Defense agreed the Government should be able to bring up indi-
vidual items that were claimed in 2011 if it alleged the same items were fraud-
ulently claimed again in 2014 or 2017; however, the Defense contended the
overall amount Appellant claimed (approximately $32,000.00) and was
awarded (approximately $16,000.00) in 2011 should be excluded as irrelevant
and unfairly prejudicial. In response, the circuit trial counsel (CTC) conceded
the Government lacked the evidence for “a good faith basis to argue” the 2011
claim was itself fraudulent, but contended the 2011 claim was the “impetus”
for Appellant’s allegedly fraudulent 2014 and 2017 claims. The CTC argued
the 2011 claim was relevant to show Appellant’s motive, common plan or
scheme, and knowledge of the claims process.
In an oral ruling, the military judge denied Appellant’s motion with re-
spect to the total amounts of the 2011, 2014, and 2017 claims. He explained:
I am persuaded there is relevant non-propensity basis for the
[G]overnment comparing the entirety of these three claims in
demonstrating the similarities between them. Specifically, I find
that the evidence of a common scheme or plan as to the 2014 and
2017 claims is appropriate. In addition, I find that the details of
the 2011 claim are admissible to demonstrate the accused’s
knowledge of the claims process, and when and how claims may
be settled, as well as the amount of money that could potentially
be claimed through the household goods claims process. The pro-
bative value of admitting and contrasting these three similar
claims provided in three successive moves is not substantially
outweighed by the danger of unfair prejudice or confusion of the
issues. The court, however, will entertain a proposed instruction
by the [D]efense regarding the appropriate use of any evidence
about the 2011 claim, or the differences between what is claimed
and what is ultimately paid out to a claimant.
27
United States v. Prescott, No. ACM 39931
During trial, the Government introduced evidence of the items and
amounts Appellant claimed in 2011, 2014, and 2017. The military judge pro-
vided the following instruction to the court members before their deliberations
on findings, and prior to closing arguments by counsel:
Uncharged Misconduct/Other Acts: You may consider evidence
that the accused filed a 2011 household goods claim, and the cir-
cumstances of that claim, for the limited purpose of its tendency,
if any, to prove a plan or design of the accused to wrongfully ob-
tain money through false claims for broken or missing items
through subsequent household goods moves, the accused’s
knowledge of how certain claims are processed and settled, or to
rebut a contention that the alleged offenses were the result of
accident or mistake.
Trial defense counsel did not propose an instruction, nor object or seek to aug-
ment this instruction with respect to the 2011 claim. At the conclusion of his
findings instructions, the military judge asked, “Do counsel object to the in-
structions given or request additional instructions?” Civilian trial defense
counsel responded, “No, Your Honor.”16
2. Law
We review a military judge’s ruling pursuant to Mil. R. Evid. 404(b) for an
abuse of discretion. United States v. Hyppolite, 79 M.J. 161, 164 (C.A.A.F. 2019)
(citation omitted). “A military judge abuses his discretion when: (1) the find-
ings of fact upon which he predicates his ruling are not supported by the evi-
dence of record; (2) if incorrect legal principles were used; or (3) if his applica-
tion of the correct legal principles to the facts is clearly unreasonable.” United
States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citation omitted). “The abuse
of discretion standard is a strict one, calling for more than a mere difference of
16 Although not raised as an assignment of error, Appellant asserts there was a conflict
between the military judge’s oral ruling, which Appellant asserts appeared to limit the
evidence of a common plan or scheme to the 2014 and 2017 claims, and the instruction,
which permitted the court members to consider the 2011 claim with respect to the
existence of a common plan or scheme in 2014 and 2017. However, by stating it had no
objection to the instruction, the Defense affirmatively waived any objection to such a
discrepancy. See United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2019). Recognizing
our authority under Article 66, UCMJ, 10 U.S.C. § 866, to pierce an appellant’s waiver
in order to correct a legal error, we decline to do so. See United States v. Hardy, 77 M.J.
438, 443 (C.A.A.F. 2017). A fair reading of the military judge’s ruling conveys his in-
tention to permit evidence of “the entirety of [all] three claims” as “evidence of a com-
mon scheme or plan as to the 2014 and 2017 claims,” and we find the military judge’s
instructions as a whole did not unfairly prejudice Appellant.
28
United States v. Prescott, No. ACM 39931
opinion. The challenged action must be ‘arbitrary, fanciful, clearly unreasona-
ble,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997);
United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).
Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is generally not admissible as evidence of the person’s character in
order to show the person acted in conformity with that character on a particu-
lar occasion. However, such evidence may be admissible for another purpose,
including, inter alia, proving knowledge, absence of mistake, or the existence
of a plan. Mil. R. Evid. 404(b)(2). The list of potential purposes in Mil. R. Evid.
404(b)(2) “is illustrative, not exhaustive.” United States v. Ferguson, 28 M.J.
104, 108 (C.M.A. 1989). We apply a three-part test to review the admissibility
of evidence under Mil. R. Evid. 404(b):
1. Does the evidence reasonably support a finding by the court
members that [the] appellant committed prior crimes, wrongs or
acts?
2. What “fact . . . of consequence” is made “more” or “less proba-
ble” by the existence of this evidence?
3. Is the “probative value . . . substantially outweighed by the
danger of unfair prejudice”?
United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 2010) (alterations in origi-
nal) (quoting United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)). Where
the military judge does not conduct the balancing inquiry of the third prong of
the Reynolds test on the record, we afford his ruling less deference. See United
States v. Barnett, 63 M.J. 388, 396 (C.A.A.F. 2006).
3. Analysis
Appellant asserts the military judge abused his discretion by permitting
the Government to use evidence of Appellant’s 2011 claim to demonstrate the
existence of a common plan or scheme with respect to the 2014 and 2017
claims, pursuant to Mil. R. Evid. 404(b). We disagree.
With regard to the first element of the Reynolds test, Appellant concedes
the Defense did not contest that sufficient evidence existed with regard to the
2011 claim. We agree this prong was satisfied.
With regard to the second element, we agree with the military judge that
evidence of the 2011 claim was relevant to show Appellant’s knowledge of the
claims process, the absence of mistake as to items Appellant wrongly claimed,
and the existence of a common scheme or plan across the 2014 and 2017 claims.
Appellant cites United States v. Morrison for the proposition that “uncharged
acts ‘must be almost identical to the charged acts’ to be admissible as evidence
29
United States v. Prescott, No. ACM 39931
of a plan or scheme.” 52 M.J. 117, 122 (C.A.A.F. 1999) (quoting United States
v. Brannan, 18 M.J. 181, 183 (C.M.A. 1984) (additional citation omitted). How-
ever, this is such a case. Appellant’s uncharged act of filing a very large house-
hold goods claim, including specific claims of damaged and lost items that were
repeated in subsequent claims, was essentially the same as the charged lar-
ceny in 2014 and attempted larceny in 2017. Appellant argues that the 2011
claim was fundamentally different because the Government did not have evi-
dence the 2011 claim itself was fraudulent. We disagree. Mil. R. Evid. 404(b)
does not require that the uncharged act itself be criminal. See United States v.
Dairo, 75 M.J. 867, 871–72 (A. Ct. Crim. App. 2016) (“[T]he legality of the prior
act is ‘irrelevant to [its] admissibility’ under [Mil. R. Evid.] 404(b).” (second
alteration in original) (citations omitted)). Moreover, the relevance of the 2011
claim does not hinge on its criminality. Even if the 2011 claim was itself en-
tirely valid, Appellant’s experience with the process of filing a large household
goods claim was relevant to show his knowledge of the process and the exist-
ence of his subsequent fraudulent plans in 2014 and 2017. For example, the
court members could reasonably infer that Appellant learned from his 2011
experience how TSPs go about investigating such claims, their salvage prac-
tices, and what types of claimed loss or damage are more or less likely to be
compensated.
Turning to the final element of the Reynolds test, we note the military judge
did not specifically articulate his balancing of the probative value against the
potential for unfair prejudice; accordingly, we afford his ruling less deference.
See Barnett, 63 M.J. at 396 (explaining the mere recitation that “the probative
value of th[e] evidence is not substantially outweighed by its prejudicial im-
pact” warrants less deference from appellate courts). Nevertheless, we agree
with the military judge that the probative value of the 2011 claim was not sub-
stantially outweighed by the danger of unfair prejudice. As described above,
Appellant’s experience with the 2011 claim tended to show he approached his
2014 and 2017 claims with particular knowledge of the household goods claims
process and a plan to file large, unjustified claims.
Appellant argues that the admission of evidence that Appellant’s 2011
claim exceeded $30,000.00 was “both prejudicial and confusing” because it cre-
ated an inference the 2011 claim was also fraudulent. We are not persuaded
such concerns substantially outweighed the probative value. It is the similari-
ties between the 2011 claim and subsequent claims that establish its relevance
as to Appellant’s knowledge and subsequent scheme or plan. Such prejudice is
not unfair. Whether or not trial counsel misused or mischaracterized the evi-
dence in argument to suggest the 2011 claim was also fraudulent—addressed
below—is a separate question and not inherent in the military judge’s ruling.
30
United States v. Prescott, No. ACM 39931
Appellant further argues there was other, less unfairly prejudicial evidence
available of Appellant’s knowledge of claims processes. Appellant cites testi-
mony that he had previously served as a claims officer, and suggests the evi-
dence of the 2014 and 2017 claims themselves demonstrate he knew how to file
a household goods claim. However, evidence of the 2011 claim goes well beyond
this sort of generalized knowledge of the claims process. The 2011 claim indi-
cated Appellant had, through personal experience and before he filed his 2014
claim, learned how TSPs adjudicate such claims, what types of loss or damage
were likely to be compensated, and more generally that he personally could
obtain significant amounts of money through the claims process.
Accordingly, we conclude the military judge did not abuse his discretion by
permitting the Government to introduce evidence of Appellant’s entire 2011
claim as evidence of his knowledge of the claims process, the absence of mis-
take, and the existence of a scheme or plan.
C. Trial Counsel’s Findings Argument
1. Additional Background
During the CTC’s argument on findings, he noted similarities between the
items Appellant claimed in 2011, 2014, and 2017, including, inter alia, missing
shelves from bookcases, missing remote controls, missing weights, a damaged
speaker, and a damaged music stand. He further noted the large number of
total items claimed each year, the large number of items Appellant specifically
claimed were missing, and the large payments Appellant obtained in 2011 and
2014—approximately $16,000.00 and $33,000.00, respectively. Appellant con-
cluded this portion of his argument, “Through this series of claims, members,
the accused engaged in a plan, a scheme to fraudulently obtain money from his
transportation service providers.”
Later in his argument, the CTC referred to the inspections of transit-re-
lated damage to Appellant’s property conducted by the claims inspectors BW,
MM, and MP in 2011, 2014, and 2017, respectively. He argued:
This first [anticipated defense argument] that we’re going to
walk through in [sic] this transit-related damage means it must
be new damage. That’s not what the actual testimony was. The
testimony was that they examine it, and if it appears that it
could have been related to the transit, they will label it as
transit-related damage. But you also heard testimony that one
thing that would be helpful would be prior photos. Right? Prior
information about the item, understanding what it looked like
before, has it ever looked like this before? Members, you all have
been provided that information. You don’t rely on [BW] or [MM]
or [MP, the three claims inspectors]. You’re the fact finder in this
31
United States v. Prescott, No. ACM 39931
case. You are the fact finders in this case. You look at the photos
that have been provided to you, and you look at those preexisting
damages, and you’ll see what has been going on here, this scheme
and plan that the accused has been engaging in from 2011 to
2017.
(Emphasis added).
At a later point, the CTC addressed the significance of the “parts box” which
was marked as delivered on the 2016 inventory but could not be located by
AAction employees at Appellant’s house on the day of delivery. The CTC ar-
gued:
There is an issue with the parts box raised by [BT] and [TP],
right? They told you about we couldn’t find the parts box. We
couldn’t find the parts box. We didn’t know where the parts box
was. We couldn’t find pieces to put things back together. I will
turn your attention to Prosecution Exhibit 27. It’s on page 1. It’s
line item number one on that page. It is the parts box. And I’d
ask you to look over to the Shipper Check Destination and look
at the “X” that is in that box as received and ask yourself what
is going on at this house? What’s going on at that house? You
just look back to the 2014 and 2011 claims, and you see the plan,
the scheme, the chaos caused by [Appellant] in these moves to ob-
tain money because it’s received, and then when the workers
can’t find the parts they need -- or when they need the parts to
put things together, they can’t find them.
(Emphasis added).
Still later, the CTC commented on evidence suggesting that—contrary to
his testimony—Appellant knew his carbon copy of the 2016 inventory did not
accurately reflect which items had been delivered to his residence at Minot
AFB, and the improbability that Appellant’s claims for items that were actu-
ally delivered were attributable to innocent mistakes. He argued:
[I]s it probable that he truly was mistaken based on this? It’s
not, not for someone with knowledge of the claim system. Not for
someone with knowledge of how the claims process works. Not
for someone who has set up this elaborate scheme -- this elaborate
plan to do this in three consecutive moves. Did he actually believe
that despite the items sitting in his home? What’s the probabil-
ity of that?
(Emphasis added).
32
United States v. Prescott, No. ACM 39931
Trial defense counsel did not object to any of the portions of argument
quoted above.
2. Law
“We review prosecutorial misconduct and improper argument de novo and
where . . . no objection is made, we review for plain error.” United States v.
Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (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 plain or obvious, and (3) the error results in material prejudice to a
substantial right of the accused.” United States v. Fletcher, 62 M.J. 175, 179
(C.A.A.F. 2005) (citation omitted). The burden of proof under a plain error re-
view is on the appellant. See United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F.
2017) (citation omitted).
“Improper argument is one facet of prosecutorial misconduct.” Id. (citation
omitted). “Prosecutorial misconduct occurs when trial counsel ‘overstep[s] the
bounds of that propriety and fairness which should characterize the conduct of
such an officer in the prosecution of a criminal offense.’” United States v. Horn-
back, 73 M.J. 155, 159 (C.A.A.F. 2014) (quoting Fletcher, 62 M.J. at 179). Such
conduct “can be generally defined as action or inaction by a prosecutor in vio-
lation of some legal norm or standard, [for example], a constitutional provision,
a statute, a Manual rule, or an applicable professional ethics canon.” Id. at 160
(quoting United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996)).
“A prosecutorial comment must be examined in light of its context within
the entire court-martial.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F.
2005) (citation omitted). “When a trial counsel makes an improper argument
during findings, ‘reversal is warranted only when the trial counsel’s comments
taken as a whole were so damaging that we cannot be confident that the mem-
bers convicted the appellant on the basis of the evidence alone.’” United States
v. Norwood, 81 M.J. 12, 19 (C.A.A.F. 2021) (quoting Andrews, 77 M.J. at 401–
02). “We weigh three factors to determine whether trial counsel’s improper ar-
guments were prejudicial: ‘(1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the weight of the evidence supporting
the conviction.’” Andrews, 77 M.J. at 402 (quoting Fletcher, 62 M.J. at 184).
3. Analysis
Citing the portions of the Government’s findings argument quoted above,
Appellant contends the CTC improperly argued that Appellant’s 2011 claim
was fraudulent. Appellant notes that during the Mil. R. Evid. 404(b) motion
hearing described above, the CTC conceded the Government did not have “a
good faith basis to argue” the 2011 claim was fraudulent “based on the evi-
dence” it had. In addition, the military judge ruled that evidence of the 2011
claim was admissible as “evidence of a common scheme or plan as to the 2014
33
United States v. Prescott, No. ACM 39931
and 2017 claims,” and he instructed the court members they could consider
evidence of the 2011 claim for “the limited purpose of its tendency, if any, to
prove a plan or design of the accused to wrongfully obtain money through false
claims for broken or missing items through subsequent household goods
moves.” (Emphasis added). Therefore, Appellant contends, it was error for the
CTC to argue Appellant had a criminal scheme or plan in 2011.
Because the Defense did not object at trial, the initial question is whether
the CTC’s argument rose to the level of plain or obvious error. Although the
CTC did not specifically argue that the 2011 claim in particular was fraudu-
lent, in each instance quoted above he spoke about the series of claims in such
a way as to at least imply Appellant had fraudulent intent in 2011, and thereby
exceeded the scope of the military judge’s ruling. For purposes of our analysis,
we will assume the CTC’s comments were plainly erroneous.
However, after considering the three factors the CAAF set forth in Fletcher,
we conclude such an error did not materially prejudice Appellant’s substantial
rights. As to the first factor, we find the severity of the error to be slight. The
fact that trial defense counsel did not object to any of these instances is some
indication of their immateriality. See United States v. Gilley, 56 M.J. 113, 123
(C.A.A.F. 2001) (citation omitted). In addition, each of these four instances was
a brief passing reference in a lengthy argument that spanned approximately
30 pages of the transcript. More significantly, although the argument may
have exceeded the permissible use of evidence of the 2011 claim by implying
that claim was also fraudulent, it was nevertheless very closely related to a
permissible use. Although the military judge’s ruling did not permit the Gov-
ernment to argue that the 2011 claim itself was fraudulent, the Government
was allowed to argue evidence of the 2011 claim demonstrated Appellant’s sub-
sequent claims in 2014 and 2017 were fraudulent. This narrow distinction was
not of a nature to materially affect the court members’ deliberations. Indeed,
the court members’ findings of not guilty as to the charged larceny in 2014
indicate they were not persuaded Appellant had a common fraudulent scheme
or plan from 2011 to 2017.
With regard to the second Fletcher factor, because the Defense did not ob-
ject, the military judge did not specifically address the improper argument.
However, the military judge did provide other findings instructions that we
may presume had some prophylactic effect. See United States v. Taylor, 53 M.J.
195, 198 (C.A.A.F. 2012) (“Absent evidence to the contrary, this Court may
presume that members follow a military judge’s instructions.” (citations omit-
ted)). He instructed the court members that argument by counsel was not evi-
dence, and the members were to decide the issues based on the evidence and
the instructions from the military judge. More particularly, he instructed that
the members could consider evidence of the 2011 claim for the “limited purpose
34
United States v. Prescott, No. ACM 39931
of its tendency, if any, to prove a plan or design . . . to wrongfully obtain money
through false claims for broken or missing items through subsequent household
goods moves, . . . .” (Emphasis added). Not only is there no evidence the court
members misused the evidence, but as stated above their findings indicate they
were not persuaded by the Government’s argument regarding a common plan
or scheme across multiple moves and claims.
Finally, with regard to the strength of the evidence, as described above with
respect to legal and factual sufficiency, the Government presented a compel-
ling case that Appellant knowingly tried to obtain by false pretenses over
$500.00 by filing a claim for items for which he knew he was not entitled to
payment. To be sure, Appellant testified in his defense that he was not guilty
of the allegations, but the court members evidently and reasonably found much
of his testimony was not credible. Given the nature of both the evidence in the
case and of the improper argument, we are not persuaded the CTC’s error af-
fected the court members’ findings of guilty as to attempted larceny. The
strength of the evidence supporting Appellant’s conviction for false official
statement is a closer question, but for similar reasons we find no prospect that
the erroneous argument played any substantial role in the court members’
findings.
Weighing the Fletcher factors together and considering the CTC’s com-
ments in context, we are confident the court members properly convicted Ap-
pellant on the basis of the evidence alone.
D. Sentence Severity
1. Law
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ. “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fense[s], the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015)
(en banc) (per curiam) (alteration in original) (citing United States v. Ander-
son, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Although we have great dis-
cretion to determine whether a sentence is appropriate, we have no authority
to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
2. Analysis
Appellant contends his sentence to a dismissal is inappropriately severe
and this court should set it aside. He cites the extensive statements of support
35
United States v. Prescott, No. ACM 39931
from numerous individuals that he submitted both during presentencing pro-
ceedings and to the convening authority for clemency purposes, as well as his
excellent record of duty performance. In addition, he cites the “confusing and
inherently subjective” household goods claims process which by its nature in-
volves negotiation. Furthermore, he contends it is a mitigating circumstance
that he “did not expect to receive the [full] amount he claimed.”
We are not persuaded. We recognize the numerous attestations of support
from Appellant’s family, friends, former supervisors, peers, and subordinates,
as well as his duty performance and extensive volunteer work. We have also
taken into account the particular context for Appellant’s offenses and the dy-
namics of the household goods claims process. We are confident the court mem-
bers took these considerations into account as well when they adjudged a sen-
tence of a dismissal alone, without confinement, where Appellant faced a max-
imum term of confinement for ten years. Appellant was convicted of a serious
offense, attempting to steal a significant amount of money to which he knew
he had no right. In addition, he was convicted of making a false official state-
ment. In light of their findings, the court members may have also found, and
thus were permitted to consider for rehabilitation purposes in accordance with
the military judge’s mendacity instruction, that Appellant willfully provided
materially false testimony. However commendable Appellant’s behavior may
have been in other respects, having given individualized consideration to Ap-
pellant, the nature and seriousness of the offenses, Appellant’s record of ser-
vice, and all other matters contained in the record of trial, we do not find his
dismissal is inappropriately severe as a matter of law.
E. Convening Authority’s Jurisdiction to take Action
1. Additional Background
On 30 October 2018, the 14th Air Force commander, Major General
(Maj Gen) Whiting, referred the charges and specifications for trial by a gen-
eral court-martial. On the same day he convened a general court-martial of
officer members by Special Order A-004, Headquarters 14th Air Force.
Maj Gen Whiting subsequently amended the convening order and appointed
new court members in Special Order A-1, Headquarters 14th Air Force, dated
8 October 2019. On each of these dates, the 14th Air Force commander was a
properly designated general court-martial convening authority (GCMCA) as
identified in Department of the Air Force Special Orders G-18-001 and G-19-
001, dated 18 March 2018 and 15 January 2019, respectively, and in accord-
ance with Article 22(a)(7), UCMJ, 10 U.S.C. § 822(a)(7).
Appellant was arraigned on 20 November 2018 and, after two continu-
ances, his trial began on 28 October 2019. The court-martial announced its
findings on 8 November 2019. Following the announcement of findings, after
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United States v. Prescott, No. ACM 39931
consultation with the parties the military judge continued the proceedings un-
til 30 December 2019.
On 20 November 2019, Maj Gen Shaw was appointed as the 14th Air Force
commander.
The National Defense Authorization Act for Fiscal Year 2020 (NDAA) cre-
ated the United States Space Force as a separate armed service within the
Department of the Air Force, effective 20 December 2019. See NDAA for Fiscal
Year 2020, Pub. L. No. 116-92, § 952, 133 Stat. 1198, 1561 (2019); see also 10
U.S.C. § 9081. The NDAA also redesignated Air Force Space Command, of
which 14th Air Force was a subordinate command, as the United States Space
Force. On 20 December 2019, the Secretary of the Air Force redesignated 14th
Air Force as Space Operations Command (SpOC). The Secretary’s memoran-
dum additionally stated, inter alia, that “[a]ll U.S. Air Force authorities and
policies, to include the application of any provision of law, continue to apply to
all military and civilian personnel assigned to the U.S. Space Force.”
Appellant’s court-martial reconvened on 30 December 2019 and the court
members sentenced Appellant to be dismissed from the Air Force.17
On 11 February 2020, the Secretary of the Air Force issued a memorandum
identifying court-martial convening authorities within the United States
Space Force, and expressly identified the SpOC commander as a GCMCA. The
memorandum further provided, “Court-martial convening authorities for units
having one or more predecessor units whose commanders were court-martial
convening authorities will, upon activation, assume the court-martial conven-
ing authority responsibilities of their predecessor unit commanders for all mat-
ters then pending.”
On 2 March 2020, the Defense filed a post-trial motion requesting the mil-
itary judge set aside the findings of guilty and the sentence and dismiss “the
court-martial” with prejudice. The Defense contended that the court-martial’s
jurisdiction ended when the convening command, 14th Air Force, ceased to ex-
ist on 20 December 2019. The Government filed its opposition to the defense
motion on 11 March 2020.
The military judge denied the defense motion in a written ruling dated 26
March 2020. He held that the court-martial had been properly convened and,
with respect to the 30 December 2019 sentencing proceeding,
there is nothing in the . . . establishment of the Space Force on
20 December 2019 that suggests that a prior authorized action
17 One of the original ten members of Appellant’s court-martial was excused for cause
from the sentencing proceedings.
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United States v. Prescott, No. ACM 39931
by a convening authority would subsequently become invalid or
should be treated as a nullity. Accordingly, the court continued
to be properly convened through the announcement of sentence
on 30 December 2019. As US v. Prescott was properly convened
against a person subject to the [UCMJ], there was and is ongoing
jurisdiction.
The military judge further ruled that the question of who was the correct per-
son to take action on the results of the court-martial was not ripe for decision.
In his clemency submission, Appellant asserted that Maj Gen Shaw, as the
commander of SpOC, lacked authority to take action on Appellant’s sentence
for several reasons. The SpOC staff judge advocate (SJA) disagreed and ad-
vised Maj Gen Shaw did have such authority. On 3 June 2020, Maj Gen Shaw
approved Appellant’s sentence.
2. Law
We review questions of court-martial jurisdiction de novo. United States v.
Hale, 78 M.J. 268, 270 (C.A.A.F. 2019) (citing EV v. United States, 75 M.J. 331,
333 (C.A.A.F. 2016)). “When challenged, the [G]overnment must prove juris-
diction by a preponderance of evidence.” Id. (citing United States v. Morita, 74
M.J. 116, 121 (C.A.A.F. 2015)). We also review questions of statutory and reg-
ulatory interpretation de novo. United States v. Atchak, 75 M.J. 193, 195
(C.A.A.F. 2016) (citing United States v. Vargas, 74 M.J. 1, 5 (C.A.A.F. 2014));
United States v. Watson, 69 M.J. 415, 419 (C.A.A.F. 2011) (citing United States
v. Estrada, 69 M.J. 45, 47 (C.A.A.F. 2010)).
“Jurisdiction depends upon a properly convened court, composed of quali-
fied members chosen by a proper convening authority, and with charges
properly referred.” United States v. Adams, 66 M.J. 255, 258 (C.A.A.F. 2008)
(citations omitted). “When charges are referred to a court-martial, that court
retains jurisdiction over the case from the point of referral through authenti-
cation of the record by the military judge, except when the convening authority
withdraws the charges from the court-martial under [Rule for Courts-Martial
(R.C.M.)] 604(a).” United States v. Williams, 55 M.J. 302, 304 (C.A.A.F. 2001)
(citation omitted).
Article 22(a)(8), UCMJ, 10 U.S.C. § 822(a)(8), provides that any command-
ing officer designated by the service secretary concerned may convene a gen-
eral court-martial. See also 10 U.S.C. § 822(a)(7) (“General courts-martial may
be convened by . . . the commanding officer of . . . an air force . . . .”); R.C.M.
504(b)(1) (“Unless otherwise limited by superior competent authority, general
courts-martial may be convened by persons occupying positions designated in
Article 22(a) and by any commander designated by the Secretary concerned or
empowered by the President.”). Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1),
38
United States v. Prescott, No. ACM 39931
provides, “Under regulations of the Secretary concerned, a commissioned of-
ficer commanding for the time being, a successor in command, or any person
exercising general court-martial jurisdiction may act under this section in
place of the convening authority.” Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2),
provides, “Action on the sentence of a court-martial shall be taken by the con-
vening authority or by another person authorized to act under this section.”
3. Analysis
Through counsel, Appellant contends that the 14th Air Force commander—
Maj Gen Shaw at the time—ceased to be a GCMCA on 20 December 2019, when
14th Air Force was redesignated SpOC as part of the United States Space
Force without any explicit provision that the SpOC commander was a conven-
ing authority. Appellant acknowledges the Secretary did subsequently explic-
itly designate the SpOC commander as a GCMCA on 11 February 2020, before
Maj Gen Shaw took action on Appellant’s sentence. However, Appellant rea-
sons that because neither Maj Gen Shaw nor any superior authority trans-
ferred Appellant’s case to another convening authority before 20 December
2019, from 20 December 2019 until 11 February 2020 there was no existing
convening authority for Appellant’s court-martial. Appellant further argues
the Secretary’s 11 February 2020 memorandum purporting to give the SpOC
commander GCMCA authority over existing courts-martial “does not account
for the fact that a lapse [of] almost two months in GCMCA authority existed,”
and therefore Maj Gen Shaw did not “clearly ha[ve] the jurisdiction or author-
ity to take action” on Appellant’s court-martial. Appellant asks this court to set
aside the convening authority’s action and remand the case for a new post-trial
process and action.
We find no cause to remand Appellant’s case for a new convening authority
action. The basic flaw in Appellant’s argument is that jurisdiction is not pred-
icated on the continuous existence of the convening authority that originally
convened the court, or of any particular GCMCA. Instead, the UCMJ relies
upon actors with appropriate authority taking actions at the relevant point in
time. For purposes of analysis, we accept Appellant’s contention that between
20 December 2019 and 11 February 2020 Maj Gen Shaw was not a GCMCA
because the SpOC commander had not been explicitly granted such authority.
However, that is immaterial. As Appellant concedes, his court-martial was
properly convened by Maj Gen Whiting as the 14th Air Force commander. As
the military judge correctly concluded, the court-martial’s jurisdiction over the
referred charges and specifications continued through the sentencing proceed-
ing, notwithstanding the redesignation of 14th Air Force as SpOC in the in-
terim. See Williams, 55 M.J. at 304 (citation omitted). Maj Gen Shaw may have
lacked authority to take action on the sentence prior to 11 February 2020, but
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United States v. Prescott, No. ACM 39931
as of that date the Secretary’s memorandum clearly identified the SpOC com-
mander as a GCMCA and as having responsibility for Appellant’s court-mar-
tial. This clear expression of secretarial intent was more than sufficient to es-
tablish Maj Gen Shaw’s authority to take action on 3 June 2020 in accordance
with Article 60(c), UCMJ.
As a separate assignment of error, pursuant to United States v. Grostefon,
12 M.J. 431, 435 (C.M.A. 1982), Appellant personally reasserts the position
argued in the Defense’s post-trial motion—that the court-martial itself lost ju-
risdiction once the 14th Air Force commander ceased to be a GCMCA, and
therefore we should set aside the findings of guilty and the sentence. We disa-
gree for reasons similar to those explained above. Appellant fails to identify
authority for the proposition that a properly convened court-martial becomes,
in the military judge’s words, “a nullity” simply because the convening com-
mand is redesignated as a new organization whose commander has not been
expressly granted GCMCA authority. To the contrary, we conclude it does not.
See Williams, 55 M.J. at 304 (citation omitted).
F. Post-Trial Delay
Appellant was sentenced on 30 December 2019. On 2 March 2020, the De-
fense submitted a post-trial motion to dismiss the findings and sentence, as-
serting the court-martial’s jurisdiction had ceased to exist when the convening
command, 14th Air Force, ceased to exist on 20 December 2019 with the advent
of the United States Space Force, as analyzed above. The Government submit-
ted its written opposition to the motion on 11 March 2020. The military judge
issued his ruling denying the motion on 26 March 2020.
The SJA signed his recommendation (SJAR) to the convening authority on
17 April 2020. The Defense’s clemency submission on behalf of Appellant was
dated 18 May 2020. The SJA signed the first addendum to the SJAR on 20 May
2020 and, although it did not contain “new matter,” served it on the Defense in
order to afford Appellant an additional opportunity to respond. Trial defense
counsel submitted an additional response on 30 May 2020, and the SJA signed
a second addendum for the convening authority on 1 June 2020. The convening
authority took action on the sentence on 3 June 2020.
Appellant’s case was docketed with this court on 24 June 2020. Appellant
filed his assignments of error to this court on 20 May 2021 after being granted
eight enlargements of time in which to submit his appeal. The Government
submitted its answer brief on 25 June 2021, and Appellant submitted his reply
brief on 12 July 2021.
“We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). The 156 days that elapsed
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United States v. Prescott, No. ACM 39931
between sentencing and action exceeded the 120-day threshold for a facially
unreasonable post-trial delay the Court of Appeals for the Armed Forces
(CAAF) established in Moreno, 63 M.J. at 142. Similarly, the delay between
docketing at this court and the issuance of this opinion exceeds Moreno’s 18-
month threshold for a facially unreasonable appellate delay. Id. Accordingly,
we have considered the four factors the CAAF identified in Moreno to assess
whether Appellant’s due process right to timely post-trial and appellate review
has been violated by either delay: “(1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of the right to timely review and
appeal; and (4) prejudice.” Id. at 135 (citing United States v. Jones, 61 M.J. 80,
83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004)
(per curiam)).
However, the CAAF has held that where there is no qualifying 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). In Moreno, the CAAF identified three types of cognizable prej-
udice for purposes of an appellant’s due process right to timely post-trial re-
view: (1) oppressive incarceration; (2) anxiety and concern; and (3) impairment
of the appellant’s ability to present a defense at a rehearing or his grounds for
appeal. 63 M.J. at 138–39 (citations omitted). Appellant received no sentence
to confinement and has not been subjected to incarceration, oppressive or oth-
erwise. Moreover, we perceive no impairment to Appellant’s ability to present
grounds for appeal, and where an appellant’s substantive appeal fails, his abil-
ity to present a defense at a rehearing is not impaired. Id. at 140. With regard
to anxiety and concern, “the appropriate test for the military justice system is
to require an appellant to show particularized anxiety or concern that is dis-
tinguishable from the normal anxiety experienced by [appellants] awaiting an
appellate decision.” Id. Appellant has made no showing of such particularized
anxiety or concern with respect to either of the delays in question, and we per-
ceive none.
Accordingly, we consider whether the delays in this case were so egregious
as to adversely affect the public’s perception of the military justice system.
Toohey, 63 M.J. at 362. We conclude they were not.
With respect to the delay between Appellant’s trial and the convening au-
thority’s action, we note the delay is partly attributable to the adjudication of
Appellant’s post-trial motion to dismiss. In addition, Appellant’s lengthy trial
was factually complex and the record includes more than 2,000 pages of tran-
script and more than 270 exhibits. Furthermore, the defense clemency submis-
sion was lengthy, including two memoranda from trial defense counsel, a
lengthy memorandum from Appellant himself, and 36 other attachments.
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United States v. Prescott, No. ACM 39931
Moreover, the SJA afforded the Defense an additional opportunity to respond
to the first SJAR addendum; although this consumed an additional two weeks,
we do not find that members of the public would consider this additional op-
portunity to be heard offensive to Appellant’s due process rights. Considering
all the circumstances, we find the delay was not egregious and did not impugn
the fairness and integrity of the military justice system.
With regard to appellate delay, we note this court has issued its opinion
within four months of the 18-month Moreno standard. The delay is largely at-
tributable to the eight enlargements of time Appellant requested and was
granted over the Government’s opposition. In addition, on 16 February 2022,
Appellant submitted a motion for leave to file a supplemental assignment of
error (issue (11)), which this court granted on 25 February 2022. In doing so,
Appellant “recognize[d] that by filing a supplemental assignment of error, it
may increase the time necessary for this Court to review his case . . . . [Appel-
lant] understands his right to speedy appellate review and knows that this
supplemental assignment of error may be counted against him for speedy ap-
pellate purposes.” The Government submitted its timely supplemental answer
to issue (11) on 24 March 2022. Furthermore, as noted above, the nature of
Appellant’s trial was highly complex—which is reflected in the length of the
parties’ briefs to this court—and the record is very extensive. In the absence of
any particularized prejudice to Appellant, we find the delay did not violate Ap-
pellant’s right to due process.
Finally, recognizing our authority under Article 66(c), UCMJ, 10 U.S.C.
§ 866(c), we have also considered whether relief for excessive post-trial delay
is appropriate in this case even in the absence of a due process violation. See
United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After considering the
factors enumerated in United States v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim.
App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude no such relief is
appropriate.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
42
United States v. Prescott, No. ACM 39931
Accordingly, the approved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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