United States v. Westcott ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39936
________________________
UNITED STATES
Appellee
v.
Evan L. WESTCOTT
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 17 March 2022
________________________
Military Judge: Bryon T. Gleisner.
Sentence: Sentence adjudged on 16 January 2020 by GCM convened at
Pope Army Airfield, North Carolina. Sentence entered by military judge
on 29 May 2020: Dishonorable discharge, confinement for 3 years, and
reduction to E-1.
For Appellant: Captain David L. Bosner, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Alex B.
Coberly, USAF; Major Brittany M. Speirs, USAF; Mary Ellen Payne,
Esquire.
Before JOHNSON, KEY, and MEGINLEY, Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court . Chief Judge
JOHNSON filed a separate opinion concurring in part and in the result .
Judge MEGINLEY filed a separate opinion dissenting in part and in the
result.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
KEY, Senior Judge:
United States v. Westcott, No. ACM 39936
A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of one specification each of aggravated sexual
contact and abusive sexual contact of Ms. SW, in violation of Article 120, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 920.1,2 The members sen-
tenced Appellant to a dishonorable discharge, confinement for three years, and
reduction to the grade of E-1. The convening authority deferred Appellant’s
reduction in grade until the date the entry of judgment was signed by the mil-
itary judge and directed Appellant’s automatic forfeitures be waived for a pe-
riod of six months for the benefit of Appellant’s dependents.
Appellant has raised 12 issues on appeal: (1) whether his convictions are
factually and legally sufficient; (2) whether the military judge erred when he
admitted the victim’s interview with law enforcement into evidence as a prior
consistent statement; (3) whether the military judge’s failure to fully instruct
the members on the definition of consent warrants relief;3 (4) whether his trial
defense counsel were ineffective; (5) whether trial counsel improperly com-
mented on Appellant’s right to remain silent; (6) whether the military judge
erred in permitting trial counsel to ask a witness if he was aware Appellant’s
ex-wife had alleged Appellant sexually assaulted her; (7) whether he was sub-
jected to illegal pretrial punishment; (8) whether his sentence is inappropri-
ately severe; (9) whether the convening authority erred in failing to take action
on Appellant’s sentence; (10) whether the findings and sentence should be set
aside under the cumulative error doctrine; (11) whether his conviction is inva-
lid because he was not afforded the right to an unanimous verdict; and (12)
whether the United States Supreme Court’s ruling in Solorio v. United States,
483 U.S. 435 (1987), which held that personal jurisdiction over servicemembers
does not depend on a service connection to the charged offense, should be “re-
visited and rejected.”4 We also consider the issue of timely post-trial processing
1 All references in this opinion to the punitive articles of the Uniform Code of Military
Justice (UCMJ) are to the Manual for Courts-Martial, United States (2016 ed.). All
other references to the UCMJ, the Military Rules of Evidence, and the Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019
ed.).
2 Appellant was acquitted of one specification of sexual assault on divers occasions, in
violation of Article 120, UCMJ, and one charge and one specification of assault con-
summated by a battery, in violation of Article 128, UCMJ, both involving Ms. SW.
3 We also consider the related matter of the completeness of the record of trial with
respect to this issue.
4Appellant personally asserts issues (11) and (12) pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
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and appellate review. We find no error materially prejudicial to Appellant’s
substantial rights, and we affirm the findings and sentence.
I. BACKGROUND
In April or May 2015, Appellant met Ms. SW on a dating website. At the
time, Appellant was stationed in Alaska and Ms. SW lived in North Carolina,
but Appellant anticipated receiving orders to Pope Army Airfield (AAF), North
Carolina. In June 2015, Appellant went to North Carolina to visit his family
who lived near the base. While he was there, he went on a few dates with Ms.
SW. Shortly thereafter, Appellant received his military orders to Pope AAF,
and he moved there in mid-August 2015. He and Ms. SW continued their rela-
tionship, and, about a month later, Ms. SW became pregnant with their son.
She moved into Appellant’s home in October 2015, and they married two years
later in September 2017. In late May 2018, Ms. SW separated from Appellant
and alleged he had sexually assaulted her on multiple occasions, including dur-
ing her last evening in the house she shared with Appellant. The members
convicted Appellant of two offenses arising out of his conduct during that last
evening, but acquitted him of two specifications alleging prior assaults. At his
court-martial, Appellant was represented by two civilian counsel in addition to
his detailed military counsel.
II. DISCUSSION
A. Issues Summarily Resolved
1. Alleged Pretrial Punishment: Issue (7)
The weekend prior to the start of Appellant’s court-martial, Appellant’s
first sergeant directed Appellant to go to the Pope AAF emergency room in
order to complete a confinement physical exam. Once he arrived at the emer-
gency room, medical personnel there informed him such an exam would be
premature at that point because Appellant had not been convicted of anything,
let alone sentenced to confinement. On appeal, Appellant contends that the
military judge abused his discretion in denying his motion for three days of
credit based upon these events, which he argues amounted to illegal pretrial
punishment under Article 13, UCMJ, 10 U.S.C. § 813. We have carefully con-
sidered this issue and find it does not warrant further discussion or relief. See
United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
2. Convening Authority Not Taking Action: Issue (9)
In his Decision on Action memorandum, the convening authority indicated
he took action on the sentence by deferring Appellant’s grade reduction and
waiving his automatic forfeitures. The convening authority did not, however,
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United States v. Westcott, No. ACM 39936
specifically state what action he was taking with respect to Appellant’s ad-
judged confinement or punitive discharge. After Appellant filed his assign-
ments of error, the United States Court of Appeals for the Armed Forces
(CAAF) decided United States v. Brubaker-Escobar, 81 M.J. 471, 472 (C.A.A.F.
2021) (per curiam). Consistent with that decision, we conclude the convening
authority made a procedural error when he failed to take action on the entire
sentence, considering that Appellant’s offenses all occurred prior to 1 January
2019, and the charges were referred after that date. In spite of this error, we
note the convening authority granted Appellant’s requested deferment of the
adjudged reduction in grade, and he lacked the ability to grant clemency with
respect to the remainder of the adjudged sentence. In testing this error for ma-
terial prejudice to a substantial right of Appellant, we conclude he is not enti-
tled to relief. See United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005).
3. Cumulative Error: Issue (10)
Appellant asserts the cumulative effect of errors pertaining to his court-
martial deprived him of a fair trial and warrant setting aside the findings and
sentence. As we discuss in this opinion, we find no error materially prejudicial
to his substantial rights. Consequently, the cumulative error doctrine is inap-
plicable here.
4. Unanimous Verdict: Issue (11)
Appellant personally raises his claim that the Constitution guarantees the
right to a unanimous verdict, a right not reflected in the current court-martial
framework. Appellant raises this claim under Ramos v. Louisiana, __ U.S. __,
140 S. Ct. 1390 (2020), along with both the Fifth and Sixth Amendments. U.S.
CONST. amend. V, VI. However, our superior court has held “there is no Sixth
Amendment right to trial by jury in courts-martial.” United States v. Easton,
71 M.J. 168, 175 (C.A.A.F. 2012) (citations omitted); see also United States v.
McClain, 22 M.J. 124, 128 (C.M.A. 1986) (noting that “courts-martial have
never been considered subject to the jury-trial demands of the Constitution”).
The United States Supreme Court similarly concluded neither the Fifth
Amendment nor the Sixth Amendment creates a right to a jury in a military
trial in Ex parte Quirin, 317 U.S. 1, 45 (1942). See also Ex parte Milligan, 71
U.S. 2, 123 (1866); Whelchel v. McDonald, 340 U.S. 122, 127 (1950) (“The right
to trial by jury guaranteed by the Sixth Amendment is not applicable to trials
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United States v. Westcott, No. ACM 39936
by courts-martial or military commissions. . . . The constitution of courts-mar-
tial . . . is a matter appropriate for congressional action.”).5 Moreover, Appel-
lant cannot demonstrate he was convicted upon less than a unanimous vote by
the members.6 This issue warrants neither further discussion nor relief. See
Matias, 25 M.J. at 361.
5. Absence of Service Connection to His Offenses: Issue (12)
Having considered Appellant’s invitation, we decline to reject the binding
precedent established by the United States Supreme Court more than three
decades ago regarding the military’s jurisdiction over servicemembers. We do
not discuss this issue further. See id.B. Legal and Factual Sufficiency
Appellant contends his convictions are legally and factually insufficient,
arguing that Ms. SW’s testimony was uncorroborated and that she had both
poor credibility and a motive to falsely accuse him of assaulting her. We are
not persuaded.
1. Additional Background
At Appellant’s court-martial in January 2020, Ms. SW testified that she
“started losing interest” in sex with Appellant after their son was born, but
Appellant meanwhile “started becoming more forceful [in] wanting to have
sex.” Ms. SW further testified that from September 2017 to May 2018, Appel-
lant “would force [her] clothes off of [her] and force [her] into having sex with
him against [her] will even though [she] had repeatedly told him no.” She said
this occurred multiple times a month until she decided to leave Appellant in
May 2018. Ms. SW also said Appellant grabbed her neck with his hand without
her consent once. For this conduct, Appellant was charged with sexually as-
saulting Ms. SW on divers occasions and committing a single act of assault
consummated by a battery; he was, however, ultimately acquitted of these of-
fenses.
Appellant’s convictions for committing aggravated sexual contact and abu-
sive sexual contact arose from events occurring in the evening of 23 May
5 Although not argued by Appellant, our dissenting colleague suggests there may be a
constitutional infirmity in the application of collateral post-trial consequences—such
as sex-offender registration requirements—to people convicted by less-than-unani-
mous court-martial panels. Whether or not this is the case, our court has no authority
to direct or constrain non-military entities’ enforcement of generally applicable laws.
6 During Appellant’s court-martial, the Defense asked the military judge for “a polling
of the panel,” a request the military judge denied. Trial defense counsel did not explain
what issues the proposed polling would have encompassed.
5
United States v. Westcott, No. ACM 39936
2018—the last evening Ms. SW intended to spend in the home. Ms. SW testi-
fied that while she was packing her belongings in their bedroom, Appellant
was taking a shower in the adjoining bathroom, getting ready to report for his
military night-shift duties. Appellant called her over and told her, “I would
have treated you better if you had [ ] given it up to me every day.” Without
responding, Ms. SW walked away from the bathroom and resumed collecting
her things.
As Ms. SW explained, Appellant then emerged from the bathroom with a
towel around his waist. He dropped the towel and walked over to her, grabbed
her left hand, and put her hand on his penis at which point she “jerked [her]
hand away.” Appellant then pushed her onto the bed and held her arms above
her head. Ms. SW testified that she told Appellant “no” and tried to push him
away, but he was “pinning [her] down to the bed” by laying on her right side,
using his right hand to “push [her] left leg to the side,” and “inch[ing] his body
in between [her] legs.”
Ms. SW said Appellant then started trying to pull down her shorts. The
direct examination proceeded:
Q: So before we get into that, so what were you wearing at the
time?
A: I remember I was wearing a T-shirt and I was wearing ma-
ternity shorts they were—had a stretchy band on top so he was
able to pull them easily.
Q: And so going back to what you are describing, he was trying
to put his hand on your shorts?
A: Yes. He hooked his fingers underneath my shorts and started
moving his hands down towards my vagina.
Q: Was he able to do that?
A: He—yes. He got down pretty far. And before he, before he
pulled down my shorts he was stroking my vagina outside of my
shorts with his right hand.
Q: And so just so we get the timeline clear, the touching that
outside the shorts when did that occur?
A: That happened after he was able to push my left leg to the
side and he started touching me through the shorts.
Q: What were you doing as he was touching you through the
shorts?
A: I was trying to get my arms free to push him away and then
I tell him no.
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Ms. SW testified Appellant was “using his fingers and rubbing up and down
the outside of [her] shorts where [her] vagina is.” Appellant was not able to
penetrate Ms. SW’s vagina, but she said that while “he got close to the outside
of [her] vagina,” he was unable “to go any further.” Ms. SW said she “moved
[her] knee up” to try and get Appellant’s hand away as she “kept trying to get
[her] arms free and trying to get him off of [her]” and that she thought she
“even went so far as to trying to smack him [i]n between the legs.” She also told
Appellant he would be late for work if he did not stop, and Appellant eventually
got up off her and went back to getting ready to go to work.
Appellant left a few minutes later, and Ms. SW finished packing. The next
morning, Ms. SW left the house and moved in with her sister, Ms. JR. A couple
of days later, Ms. SW told Ms. JR what had occurred, and Ms. JR suggested
Ms. SW notify the police. Ms. SW agreed and filed a report with the Hoke
County, North Carolina, Sheriff’s Office on 26 May 2018. Ms. SW recounted
the events of 23 May 2018 in an interview with a sheriff’s deputy and one of
the office’s sergeants which was recorded on the deputy’s body camera. Ms. JR
was also present. In the interview, which was admitted into evidence in its
entirety, Ms. SW told the deputy that as Appellant was getting ready for work,
Appellant said that he and Ms. SW “should have sex again” before she left him.
The following colloquy also took place in the interview:
DEP [Deputy]: So as he was leaving for work the other day he—
will—anyway or tell me before he left, he wants to have sex. You
said he started pulling your shorts down?
VIC [Ms. SW]: Yeah he pushed me down on the bed wouldn’t let
me up.
DEP: Right.
VIC: He tried pulling off my shorts and he tried to stick his hand
on my shorts.
DEP: Mm-hm.
VIC: And I kept trying to push him away from—
WIT [Ms. JR]: Didn’t he make you touch him too?
VIC: Yes. Yeah he grabbed my hand he made me touch him too.
And he was naked at that time too.
....
DEP: Did at any point during this incident, did he penetrate
you?
VIC: No.
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United States v. Westcott, No. ACM 39936
DEP: Okay so he never—fingers, private part, anything like
that, penis never went in?
VIC: I—fingers got close, but I think I was able to push him away
before he could.
....
SGT [Sergeant]: Did you—did he get your pants off?
VIC: No. I was able to keep him from doing that.
DEP: Never penetrated.
SGT: But did he touch you in your vaginal area?
VIC: Over my shorts.
SGT: Over your shorts.
VIC: Yeah.
SGT: And when his hand went in, he didn’t touch anything?
VIC: He like was around the area but he didn’t penetrate. I was
able to like push his hands away before he was able to.
SGT: Okay. And then after you told him you pushed him away,
did he stop?
VIC: No. I kept having to push him away. I even had to like—
because he was naked at the time, I even had to like slap him
like in between the legs to try and get him to go away. And he
did not he was still being extremely aggressive towards me and
the only thing that probably saved him or saved me from going
further is that he was going to be late for work.
Two days later, Ms. JR noticed bruises on Ms. SW’s legs and arms, and she
pointed them out to Ms. SW. Ms. SW explained at Appellant’s court-martial
that she has a genetic disease rendering her legally blind, and she was unable
to see the bruises herself—as a result, she was unaware of the bruises until
Ms. JR told her about them. Ms. JR said at trial that the bruises appeared “as
if someone grabbed like this and there were points,” grabbing her left arm as
she testified. Once Ms. SW learned she was bruised, she went back to the Hoke
County Sheriff’s Office, where a detective took pictures of her injuries, one of
which was a bruise on the inside of Ms. SW’s left knee. The photographs were
admitted into evidence as a prosecution exhibit.
During Ms. SW’s cross-examination, trial defense counsel did not specifi-
cally ask Ms. SW about the 23 May 2018 incident. Instead, the Defense sought
to establish that, contrary to Ms. SW’s testimony, Appellant and Ms. SW had
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United States v. Westcott, No. ACM 39936
engaged in consensual sexual conduct throughout their relationship, and on
some occasions Ms. SW would initially rebuff Appellant’s advances but then
later consent to sexual activity. The Defense also attempted to show that Ms.
SW was frustrated with Appellant not helping around the house and that she
stood to gain financially should Appellant be convicted. Ms. SW conceded that
while she was living with Appellant, she had never told anyone he was sexually
assaulting her, but she explained Appellant would “always tell [her] that it’s
not rape when you’re married.”
Through their cross-examination of law enforcement witnesses, the De-
fense sought to establish that Ms. SW had made inconsistent or unbelievable
claims about how often Appellant sexually assaulted her during their relation-
ship. In the Defense’s closing argument, trial defense counsel specifically
pointed to the fact Ms. SW discussed only the 23 May 2018 incident when she
was interviewed by the Hoke County investigators and that her other allega-
tions did not surface until some later point in the investigation.
2. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (internal quotation marks and citation omitted). The
“[G]overnment is free to meet its burden of proof with circumstantial evidence.”
Id. (citations 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
the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In
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United States v. Westcott, No. ACM 39936
conducting this unique appellate role, we take ‘a fresh, impartial look at the
evidence,’ applying ‘neither a presumption of innocence nor a presumption of
guilt’ to ‘make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
In order for Appellant to be found guilty of aggravated sexual contact, as
charged here, the Government was required to prove beyond a reasonable
doubt: (1) that Appellant committed sexual contact upon Ms. SW by touching
her groin with his hand; (2) that he did so by using unlawful force; and (3) that
he did so with the intent to gratify his sexual desire. See Manual for Courts-
Martial, United States (2016 ed.) (2016 MCM), pt. IV, ¶ 45.b.(5)(a). “Sexual
contact” includes, inter alia, “any touching . . . either directly or through the
clothing, [of] any body part of any person, if done with an intent to arouse or
gratify the sexual desire of any person.” Id. ¶ 45.a.(g)(2)(B). “Unlawful force”
means “an act of force done without legal justification or excuse.” Id.
¶ 45.a.(g)(6). “Force” includes “the use of such physical strength or violence as
is sufficient to overcome, restrain, or injure a person.” Id. ¶ 45.a.(g)(5)(B).
In order for Appellant to be found guilty of abusive sexual contact, the Gov-
ernment was required to prove beyond a reasonable doubt: (1) that Appellant
committed sexual contact upon Ms. SW by using his hand to place her hand on
his penis; (2) that he did so by causing bodily harm to Ms. SW, to wit: placing
her hand on his penis; (3) that he did so with the intent to gratify his sexual
desire; and (4) that he did so without Ms. SW’s consent. Id. ¶ 45.b.(7)(b).7 “Bod-
ily harm” includes “any nonconsensual sexual act or nonconsensual sexual con-
tact.” Id. ¶ 45.a.(g)(3). “Consent” means “a freely given agreement to the con-
duct at issue by a competent person.” Id. ¶ 45.a.(g)(8)(A).
The affirmative defense of mistake of fact as to consent is available to an
accused who can demonstrate that he or she—through ignorance or mistake—
incorrectly believed another consented to the sexual contact in question. See
Rule for Courts-Martial (R.C.M.) 916(j)(1). In order to rely on this defense, the
accused’s belief must be both honest and reasonable. See id.; United States v.
Jones, 49 M.J. 85, 91 (C.A.A.F. 1998) (quoting United States v. Willis, 41 M.J.
435, 438 (C.A.A.F. 1995)); United States v. Gans, No. ACM 39321, 2019 CCA
LEXIS 162, at *14 (A.F. Ct. Crim. App. 11 Apr. 2019) (unpub. op.). Once raised,
the Government bears the burden of proving beyond a reasonable doubt that
the defense does not exist. R.C.M. 916(b)(1); see United States v. McDonald, 78
7 Although the Manual for Courts-Martial does not include the element of “without
consent,” the military judge instructed the members that they were required to find
this element had been met.
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United States v. Westcott, No. ACM 39936
M.J. 376, 379 (C.A.A.F. 2019). “The burden is on the actor to obtain consent,
rather than the victim to manifest a lack of consent.” McDonald, 78 M.J. at
381.
3. Analysis
On appeal, Appellant attempts to undermine the evidence supporting his
convictions, largely relying on his claim that Ms. SW was not a credible wit-
ness. He argues that she had a financial motive to fabricate her claims and
that her testimony was inadequately corroborated. After reviewing the record,
however, we conclude Appellant’s post-trial attack has missed its mark.
While trial defense counsel raised some questions about Ms. SW’s testi-
mony during the court-martial, the Defense was unable to decisively impair
her credibility. The primary shortcoming of Ms. SW’s testimony was its lack of
detailed specifics about the various assaults she alleged she suffered over the
course of her relationship with Appellant. Ms. SW, however, did provide spe-
cific details about the events of 23 May 2018. Moreover, she reported those
events almost immediately after they occurred and gave recorded interviews
to law enforcement the same week. The Government also obtained photo-
graphic evidence of Ms. SW’s bruises taken around the same time. True, there
were some minor inconsistencies between Ms. SW’s testimony and her inter-
views which took place two years earlier, but the Defense spent little time try-
ing to highlight those inconsistencies. Instead, trial defense counsel mounted
a broader attack by portraying Ms. SW as typically refusing Appellant’s sexual
entreaties at first but later consenting to sexual activity. Considering Appel-
lant was acquitted of the more serious sexual assault specification along with
the assault consummated by a battery charge, the Defense’s approach was not
altogether unsuccessful.
That being said, the Defense’s claim that Ms. SW—as a matter of course—
would first rebuff Appellant’s advances only to later acquiesce was thinly
sourced. In fact, the claim seems to have been derived from a single question
posed by trial defense counsel: “[I]sn’t it true that there were some—there were
many times when [Appellant] asked you to have sex and you may have not
been in the mood, but you gave in, you gave [in] and you consented?” Ms. SW
answered, “There were sometimes, yes.” After that exchange, trial defense
counsel moved on to other matters. Whatever may be gleaned from this re-
sponse by Ms. SW, a rational factfinder could wholly reject the notion that on
23 May 2018—while Appellant was pinning her down and holding her arms
above her head, while she was telling him “no” and struggling to get away from
him after Appellant had said he would have been nicer to her if she had “given
it up” every day, all against the backdrop of her packing to leave the house and
their marriage—Ms. SW was, in fact, consenting despite all her outward man-
ifestations to the contrary. Similarly, a rational factfinder could conclude the
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United States v. Westcott, No. ACM 39936
Government had proven beyond a reasonable doubt that Ms. SW did not con-
sent to Appellant’s actions that evening and that Appellant was operating un-
der neither an honest nor a reasonable belief that she did.
The Defense sought to portray Ms. SW as having a financial incentive to
allege Appellant had abused her, namely so that she could receive transitional
compensation. The force of this accusation was largely blunted when Ms. SW
disavowed any knowledge of the program. While trial defense argued “[i]t’s not
credible that she didn’t know” because she was assigned a special victims’
counsel whose “job is to make sure that the person knows what’s going on with
the process, with the court-martial, with everything they can get that might
happen to them after this court-martial,” no evidence was ever adduced as to
how much compensation Ms. SW might receive, when she would first receive
it, how long it would last, or if she was even entitled to it at all. Moreover, there
is nothing in the record indicating when Ms. SW retained her special victims’
counsel’s services, much less evidence that she had spoken to a special victims’
counsel prior to 26 May 2018, when she first reported Appellant’s conduct to
the Hoke County Sheriff’s Office. Thus, a rational factfinder could place little
or no significance on the fact that a transitional compensation program exists
or that Ms. SW could conceptually benefit from it in some indeterminate fash-
ion. In the face of Ms. SW’s stated lack of knowledge of the program, a rational
factfinder could reject the theory outright.
The aggravated sexual contact specification alleges Appellant committed
the offense by “touching [Ms. SW’s] groin with his hand, with an intent to grat-
ify his sexual desire, by using unlawful force.” The dissent takes issue with the
factual sufficiency of that specification insofar as Ms. SW did not specifically
state Appellant touched her “groin,” as he was charged with doing. Although
not raised either at trial or by Appellant on appeal, the dissent seeks to limit
the anatomical boundaries of Ms. SW’s groin to the point that it lies outside
the reach of the evidence in this case.
At no point did Ms. SW use the word “groin” in her testimony. Instead, Ms.
SW testified that Appellant “hooked his fingers underneath [her] shorts and
started moving his hands down towards [her] vagina,” and in doing so, “[h]e
got down pretty far” and “close to the outside of [her] vagina.” She said in her
interview with the sheriff’s deputy that when Appellant’s hand was in her
shorts, he did not penetrate her vagina, but “[h]e like was around the area.” In
addition, he touched her vaginal area through her shorts with his fingers, “rub-
bing up and down the outside of [her] shorts where [her] vagina is.”
Two of our sister service courts have relatively recently sought to distin-
guish a person’s genitals from their groin, giving some traction to the dissent’s
argument. In United States v. McDonald, the United States Navy-Marine
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Corps Court of Criminal Appeals determined two specifications were not fa-
cially duplicative where one involved the appellant touching the victim with
his penis while the second alleged the appellant had rubbed his groin on the
victim’s buttocks. 78 M.J. 669, 680 (N.M. Ct. Crim. App. 2018). The court rea-
soned that “groin” and “penis” are not synonymous, because a medical diction-
ary reviewed by the court defined “groin” as “[t]he groove, and the part of the
body around it, formed by the junction of the thigh with the abdomen, on either
side,”8 and because “groin” and “genitalia” are listed separately in the defini-
tion of “sexual contact” in Article 120, UCMJ.9 Id. The court further high-
lighted that the two specifications covered different acts committed on differ-
ent days and concluded the appellant’s argument lacked merit. Id.In United States v. Perez, the United States Army Court of Criminal Ap-
peals concluded that the trial judge had failed to elicit a sufficient factual basis
to support the appellant’s guilty plea, where the appellant was charged with
touching the victim’s genitals but explained in his providence inquiry that he
had touched the victim on her pubic mound, just above her genitals. ARMY
20140117, 2016 CCA LEXIS 131, at *6 (A. Ct. Crim. App. 29 Feb. 2016) (unpub.
op.). The court concluded that substituting “groin” for the charged “genitals”
during appellate review would amount to a material and possibly fatal vari-
ance under the theory that “‘genitals’ is not the same as ‘groin’ or ‘groin area.’”
Id. at *5–6.
However, other than contemplating the difference between a person’s groin
and their genitals, these two cases bear little similarity to Appellant’s. McDon-
ald involved a multiplicity challenge in which the court concluded the Govern-
ment’s charging scheme adequately put the appellant on notice of what he was
required to defend against and differentiated between the charged events so
that appellant was not being convicted of the same conduct twice. Perez, on the
other hand, covered the familiar prohibition of modifying a charge such that
the appellant was denied the ability to prepare for trial and defend against the
charge. See United States v. Treat, 73 M.J. 331, 336 (C.A.A.F. 2014).
In the instant case, Appellant was charged with touching Ms. SW’s groin.
At trial, Ms. SW testified that Appellant reached “pretty far” down her shorts
and his hand was near, but not touching, her vagina. This, in conjunction with
8 The court cited J.E. SCHMIDT, M.D., ATTORNEY’S DICTIONARY OF MEDICINE AND WORD
FINDER (Release No. 52 Sep. 2018).
9 See Article 120(g)(2)(A), UCMJ, 10 U.S.C. § 920(g)(2)(A), defining sexual contact as
“touching, or causing another person to touch, either directly or through the clothing,
the genitalia, anus, groin, breast, inner thigh, or buttocks of any person . . . .”
13
United States v. Westcott, No. ACM 39936
her testimony about Appellant using his fingers to rub “up and down the out-
side of [her] shorts where [her] vagina is,” leaves little doubt Appellant touched
Ms. SW’s groin, even using the definition of “groin” employed in McDonald.
That is, Appellant touched Ms. SW either where her thighs joined her abdo-
men, or the part of the body around that junction.10 Thus, even adopting a rigid
distinction between Ms. SW’s groin and Ms. SW’s genitals, the evidence still
supports the conclusion that Appellant touched her groin.
We conclude that a rational factfinder could have found beyond a reasona-
ble doubt all the essential elements of Appellant’s convicted offenses, to include
that he touched Ms. SW’s groin. Furthermore, after weighing all the evidence
in the record of trial and having made allowances for not having personally
observed the witnesses, we are convinced of Appellant’s guilt beyond a reason-
able doubt. Therefore, we find Appellant’s convictions both legally and factu-
ally sufficient.
C. Admission of the Recording of Ms. SW’s Interview
As discussed above, the recording of Ms. SW’s interview at the Hoke County
Sheriff’s Office was admitted into evidence at Appellant’s trial. Appellant ar-
gues that this was improper under the theory that the recording did not qualify
10 We also note that “groin” is often used to generally describe the area between a per-
son’s legs, to include their genitals. See, e.g., United States v. Gould, ARMY 20120727,
2017 CCA LEXIS 338, at *11 (A. Ct. Crim. App. 17 May 2017) (unpub. op.) (equating
“genital area” to “groin”); United States v. Washington, 61 M.J. 574, 577 (N.M. Ct.
Crim. App. 2005) (describing “private part” as “the groin area of the male and female
anatomy”); United States v. Hanson, 30 M.J. 1198, 1200 (A.F.C.M.R. 1990) (stating
appellant made a comment about his genitals and then grabbed himself “in the groin
area”). Similarly, appellate opinions make repeated references to people being kicked
in the groin, which seem far more likely to refer to a person being kicked in the genitals
as opposed to the precise area where their abdomen meets their thigh. See, e.g., United
States v. Powell, 49 M.J. 220, 223 (C.A.A.F. 1998); United States v. Hughes, 48 M.J.
700, 708 (A.F. Ct. Crim. App. 1998); United States v. Viola, 26 M.J. 822, 825 (A.C.M.R.
1988). References to groin as the area above a person’s genitals are also not uncommon.
See, e.g., United States v. Rodriguez, 31 M.J. 150, 152 (C.M.A. 1990) (stating appellant
put his hands in the victim’s pants “into her groin area, on her pubic hair”); Stratton
v. State, 132 So. 3d 1074, 1077 (Miss. Ct. App. 2014) (describing a scar “directly above
the pubic area of [the defendant’s] groin”); People v. Flock, 2008 Mich. App. LEXIS
2388, at *15–16 (Mich. Ct. App. 25 Nov. 2008) (unpub. op.) (concluding area covered
by pubic hair is part of the groin); People v. Sykes, 793 N.E.2d 816, 826 (Ill. App. Ct.
2003) (alternatively describing defendant having shaved his “pubic area” and his
“groin”). Moreover, in Perez, the military judge and the parties referred to the appel-
lant touching the victim’s groin area while describing that area as a spot above her
genitals, where her pubic hair would be. 2016 CCA LEXIS 131, at *3.
14
United States v. Westcott, No. ACM 39936
as a prior consistent statement under the Military Rules of Evidence. We find,
however, that Appellant has waived this issue.
1. Additional Background
The parties gave their opening statements the morning of 14 January 2020,
and the Government next called Ms. SW to testify. At the conclusion of her
testimony, the court-martial recessed for lunch, and Ms. JR testified for the
Government once the court reconvened. After Ms. JR was excused, trial coun-
sel asked the military judge, “Your Honor, based on discussions over the lunch
break, maybe [sic] have a 10 minute recess to prepare documentary piece of
evidence to present?” The military judge granted the request, and the court
reconvened at the end of the recess. Prior to calling the members into the court-
room, the military judged asked if there was “anything we need to take up
regarding this document.” The following colloquy occurred:
CTC [circuit trial counsel]: “No, Your Honor[. F]or the [c]ourt’s
awareness we were going to put in snippets of her Hoke
County—the [victim’s] Hoke County interview as prior con-
sistent statements however discussing with the [D]efense, under
rule of completeness they would like the entire interview to come
in. And so we agreed to that so we’re going to put the entire in-
terview in through [the sheriff’s deputy].
MJ [military judge]: Okay, all right. Is that your understanding
[D]efense?
CivDC2 [second civilian defense counsel]: It is sir, it is sir.
MJ: Okay. I’ll take that proffer. All right. Call the members.
Once the members returned to the courtroom, the sheriff’s deputy was
called to the stand, and trial counsel sought to admit the recording of Ms. SW’s
interview as Prosecution Exhibit 1 early in his testimony. Trial defense counsel
objected and asked to “question the witness on the foundation.” The military
judge responded, “All right let’s—you’re saying there’s lack—so you are object-
ing for lack of foundation?” One of Appellant’s trial defense counsel responded,
“I’m also, yes. . . . I’m also worried about that’s a complete body cam from the
entire day.” The military judge then said he would permit the Government to
“follow up” on the matter, which led to trial counsel eliciting testimony from
the sheriff’s deputy to the effect that the proffered recording was the entirety
of Ms. SW’s interview.
The military judge asked the Defense again whether they had any objec-
tion, and trial defense counsel argued “there should be more body cam footage.
I want to make sure there’s not additional footage and what happened.” Trial
defense counsel said he reviewed the video and then posited, “I know that a 20
15
United States v. Westcott, No. ACM 39936
minute, a 20 minute video that starts with 08, and then the next one starts at
31, and they come together, there’s three minutes missing. I’m trying to figure
out where those three minutes are.”11 Without any further discussion, the mil-
itary judge overruled the defense objection and admitted the recording as Pros-
ecution Exhibit 1.
During the Defense’s closing argument, trial defense counsel invoked the
recording to demonstrate that Ms. SW only told the sheriff’s deputy about the
events of 23 May 2018 and made no allegations during the interview of having
suffered prior and repeated sexual assaults during her relationship with Ap-
pellant. Trial defense counsel argued Ms. SW’s version of events had morphed
over time, telling the members, “This is a story that started as, ‘Well, my hus-
band was mean to me on 23 May,’ and evolved into a whole different story.”
2. Law
A declarant-witness’s prior, out-of-court statement which is consistent with
his or her trial testimony is admissible under two circumstances: (1) when the
statement is offered to rebut a charge that the declarant recently fabricated
the trial testimony or gave the testimony due to a recent improper influence or
motive, or (2) when the statement is offered “to rehabilitate the declarant’s
credibility as a witness when attacked on another ground.” Mil. R. Evid.
801(d)(1)(B). Prior consistent statements under this rule need not be identical
to trial testimony, but must only be “‘for the most part consistent’ and in par-
ticular, be ‘consistent with respect to . . . fact[s] of central importance to the
trial.’” United States v. Finch, 79 M.J. 389, 395 (C.A.A.F. 2020) (alterations in
original) (quoting United States v. Vest, 842 F.2d 1319, 1329 (1st Cir. 1988)).
When offered to rehabilitate the declarant’s credibility, such statements must
“be relevant to rehabilitate the witness’s credibility on the basis on which he
or she was attacked.” Id. at 396. Statements admitted under this rule are not
hearsay and therefore amount to substantive evidence. Id. at 395.
When an appellant does not preserve error with respect to the admission of
evidence by lodging a timely objection, that error is forfeited unless it amounts
to plain error. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citing
United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)) (additional citations
omitted). Waiver, however, occurs when an appellant has intentionally relin-
quished or abandoned a known right. United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009). When an appellant affirmatively states he has no objection to
11 The sheriff’s deputy testified the interview recording consisted of three video files.
We are unable to precisely discern from the record what trial defense counsel’s refer-
ences to “08” and “31” pertain to, but we presume he is referring to time markers on
the videos.
16
United States v. Westcott, No. ACM 39936
the admission of evidence, the issue is ordinarily waived and his right to com-
plain about its admission on appeal is extinguished. United States v. Ahern, 76
M.J. 194, 198 (C.A.A.F. 2017) (citing United States v. Campos, 67 M.J. 330,
332–33 (C.A.A.F. 2009)).
3. Analysis
Appellant argues on appeal that the military judge erred by admitting the
recorded interview as a prior consistent statement for a variety of reasons, not
the least of which is that the recording contains both statements by people
other than Ms. SW and statements by Ms. SW which were not actually con-
sistent with anything she testified to. Appellant further argues we should re-
view the admission of the recording under a plain error standard. We disagree,
as we conclude Appellant intentionally abandoned his right to object to the
admissibility of the recording and therefore waived the issue on appeal.
Trial counsel explained to the military judge that the parties had actually
negotiated what portions of the recording would be admitted into evidence—as
opposed to whether the recording would be admitted at all. The Government
only intended to offer portions of the recording, but trial defense counsel de-
sired the entire recording to be admitted, and trial counsel agreed to do so. The
military judge squarely asked trial defense counsel if the Government’s expla-
nation mirrored trial defense’s counsel’s understanding, and they said it did.
When the Government sought to admit the recording during the sheriff’s dep-
uty’s testimony, the Defense objected, but that objection pertained to their con-
cern that the members were going to receive something less than the entire
interview, not that the interview—or any portion of it—should not be admitted.
Appellant’s position at trial was that the entire recording should be admitted
into evidence, and that position operates to waive the alleged error on appeal.12
Pursuant to Article 66(d), UCMJ, we have the unique statutory responsi-
bility to affirm only such findings of guilty and so much of the sentence that is
correct and “should be approved.” 10 U.S.C. § 866(d). Thus, we retain the au-
thority to address errors raised for the first time on appeal despite waiver of
those errors at trial. See, e.g., United States v. Hardy, 77 M.J. 438, 442–43
(C.A.A.F. 2018). We recognize that had the Defense objected to the recording
at trial on the grounds Appellant now seeks to advance, a proper application
of the rules of evidence would have almost assuredly resulted in something less
12 Appellant argues his defense counsel were ineffective by permitting the introduction
of the recording; we address that contention within our analysis of Appellant’s other
ineffective-assistance claims, infra. To the extent there was any question whether trial
defense counsel actually sought admission of the entire interview, the declarations
submitted in response to Appellant’s ineffective assistance of counsel claims make
clear the Defense made the strategic choice to seek to the interview’s admission.
17
United States v. Westcott, No. ACM 39936
than the entire recording being admitted. Beyond simply not objecting to the
recording, Appellant’s counsel affirmatively agreed to its admission. Appellant
has not identified any authority that prohibits parties from agreeing to admit
evidence which may be otherwise subject to objection under the rules of evi-
dence. Instead, Appellant seems to have come to the conclusion—post-trial—
that such an agreement was not the best strategy. Considering the foregoing,
we decline to pierce Appellant’s waiver, and we will leave it intact.
D. Military Judge’s Failure to Instruct on the Definition of Consent
The military judge’s findings instructions—which both the Government
and the Defense expressly agreed to at trial—did not define the term “consent.”
On appeal, Appellant submits that this error warrants setting aside the find-
ings and sentence in his case. The Government, meanwhile, argues Appellant
affirmatively waived the issue.13
1. Additional Background
Following the close of evidence, the military judge released the members
for the day and conducted an R.C.M. 802 conference regarding the findings
instructions, and afterwards, he sent the parties a draft of his instructions. The
next morning, the military judge discussed the instructions with the parties on
the record. At one point in this discussion, the military judge asked if the par-
ties saw any defenses raised in the case. Trial counsel said, “No,” but trial de-
fense counsel said, “Other than the reasonable mistake of fact, which you’ve
already included in your instructions, sir.”
At the end of this discussion, the military judge asked if there were any
objections to the instructions. Trial defense counsel answered, “There are not,
sir.” The military judge then asked, “[D]o both trial counsel and defense coun-
sel specifically affirm that the instructions are a correct statement of law, to
the best of your knowledge and understanding?” Both trial counsel and trial
defense counsel responded affirmatively. The military judge then recessed the
court-martial for nearly half an hour so that he could finalize the instructions.
When the court reconvened, the military judge again asked if the parties
had any objections to the instructions or requests for additional instructions.
One of Appellant’s trial defense counsel first said the Defense had not been
able to review the revised instructions due to lack of Internet access in the
courtroom. A second trial defense counsel said he was aware of what was being
changed in the instructions and that the Defense had no objection “to that
change.” That same trial defense counsel then noted the military judge had
13 To the extent the issue was waived, Appellant argues such waiver constitutes inef-
fective assistance of counsel. We address that claim later in this opinion’s ineffective-
assistance section.
18
United States v. Westcott, No. ACM 39936
made a comment about “adding a separate part of one of the elements,” leading
the military judge to say: “Right. Right. We had add—that was missing from
the part—the second element. No objections. Defense, do you want additional
time? I’ll certainly give it to you.”14 One trial defense counsel replied, “No, sir,”
and a second said, “No, we’re fine, if those were the two changes. I understand.”
After the military judge read the instructions to the members and the par-
ties gave their closing arguments, the military judge again asked if the parties
objected to the instructions or requested additional instructions. Both trial
counsel and trial defense counsel answered in the negative.
Three weeks after Appellant was sentenced, the military judge notified the
parties via email that his findings instructions had not included a definition of
the word “consent,” which was an element of the offense of abusive sexual con-
tact alleged in Specification 2 of Charge I.15 In his email, the military judge
noted the Defense had not requested this definition be included and that the
Defense had not argued a theory of consent to the members,16 but he directed
the parties to submit briefs addressing whether the lack of a definition consti-
tuted error and, if so, what relief was warranted.
The instructions the military judge had read to the members included the
elements of all the charged offenses. For the aggravated sexual contact speci-
fication, those elements essentially amounted to: sexual contact; unlawful
force; and specific intent. For abusive sexual contact, the elements included:
sexual contact; bodily harm; specific intent; and lack of consent.
The military judge also instructed the members that the defense of mistake
of fact applied to all the charged offenses in the case. In giving that instruction,
he said, “There has been testimony tending to show that, at the time of the
alleged offenses, the accused mistakenly believed that [Ms. SW] consulted [sic]
to the sexual or physical conduct alleged concerning these offenses.”17 He told
the members that the defense was available if they concluded Appellant “held,
as a result of ignorance or mistake, an incorrect belief that the other person
consented to the sexual or physical conduct.” The military judge further ex-
14 This discussion had been about whether to include “without consent” in the second
element of the abusive sexual contact specification in light of the fact “without consent”
was already listed as a fourth element to that offense.
15 Lack of consent was also an element of the sexual assault specification, of which
Appellant was acquitted.
16 The military judge was incorrect on this point—the Defense’s primary argument at
trial was that all sexual contact between Appellant and Ms. SW was consensual.
17 The words “consulted [sic]” appear in the transcript.
19
United States v. Westcott, No. ACM 39936
plained that a mistake would only be reasonable if it was “based on infor-
mation, or lack of it, that would indicate to a reasonable person that the other
person consented to the sexual or physical conduct.” Finally, he instructed the
members that the Government had the burden to prove beyond a reasonable
doubt that the defense did not exist. In addition to this defense, the military
judge told the members they could consider Ms. SW’s past sexual and physical
contact with Appellant on the question of whether she consented to the charged
acts.
The instruction on consent found in the Military Judges’ Benchbook, which
the military judge did not give, explains that, “[a]ll the evidence concerning
consent to the sexual conduct is relevant and must be considered” in assessing
whether the Government has met its burden. Dept. of the Army Pamphlet 27-
9, Military Judges’ Benchbook, ¶ 3-45-15 (10 Sep. 2014) (Benchbook). The in-
struction also explains that evidence an alleged victim did consent may lead
the members to have a reasonable doubt as to whether the Government has
proven the offense. Following that instruction, the Benchbook proposes a defi-
nition of consent—also omitted by the military judge—as “a freely given agree-
ment to the conduct at issue by a competent person,” that “[a]n expression of
lack of consent through words or conduct means there is no consent,” that
“[l]ack of consent may be inferred based on the circumstances,” and that “[a]ll
the surrounding circumstances are to be considered in determining whether a
person gave consent.”
In a written response to the military judge’s email, the Defense argued the
military judge had made an error of constitutional dimension and a mistrial
was warranted. Contrary to the statement in the military judge’s email, trial
defense counsel asserted one of the defenses they pressed at trial was that Ms.
SW had consented to all the charged conduct. The Government, meanwhile,
argued the Defense had waived the issue and that even if the issue had not
been waived, Appellant was not prejudiced by the definition’s omission.
The military judge convened a post-trial hearing regarding the instruction
on 11 May 2020.18 At the hearing, trial counsel reiterated their position that
Appellant had waived the matter by virtue of announcing they had no objec-
tions to the instructions. Trial counsel also argued that even if the military
judge had erred, Appellant was not prejudiced, because the Benchbook defini-
tion of consent would have favored the Government more than Appellant. The
Defense argued that consent was a defense to the abusive sexual contact of-
fense, so the definition of consent was a required instruction. The Defense also
argued that even though consent is not a defense to aggravated sexual contact,
18 The hearing had been scheduled earlier, but was delayed due to logistical challenges
arising from the Coronavirus (COVID-19) pandemic.
20
United States v. Westcott, No. ACM 39936
consent could “negate” the element of force. Trial defense counsel conceded Ap-
pellant would not be entitled to relief for waived error, but argued that in order
for Appellant to have waived the issue, “there would’ve had to have been a
dialogue” in which the military judge explicitly asked if Appellant wished to
waive particular instructions. Trial defense counsel said the omission of the
definition amounted to plain error and Appellant was prejudiced in that the
members were not told they must consider all the surrounding circumstances
in determining whether Ms. SW had consented or not. Because a key aspect of
the overall defense theory was that Ms. SW would typically resist Appellant’s
sexual advances but eventually consent to them, the Defense asserted the
members needed the instruction in order to understand that the legal concept
of consent “is broader than a merely yes or no.” Trial defense counsel main-
tained they simply failed to notice the absence of the consent instruction at
trial, as discussed in more detail in Section II(F)(2)(a), infra.
In late May 2020, the military judge issued a ruling on the matter of his
instructions, but the ruling is missing from the record of trial docketed with
this court, as discussed in greater detail in Section II(I), infra. In their plead-
ings before this court, the parties agree the military judge declined to grant
Appellant’s request for a mistrial or any other relief.
2. Law
Military judges are required to “determine and deliver appropriate instruc-
tions.” United States v. Barnett, 71 M.J. 248, 249 (C.A.A.F. 2012) (quoting
United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)). Required instructions
include a “description of the elements of each offense charged,” any applicable
special defenses, and “[s]uch other explanations, descriptions, or directions as
may be necessary and which are properly requested by a party or which the
military judge determines, sua sponte, should be given.” R.C.M. 920(e).
“Failure to object to an instruction or to omission of an instruction before
the members close to deliberate forfeits the objection.” R.C.M. 920(f); see also
United States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017) (reviewing failure to
object to instructions for plain error). The CAAF has concluded a valid waiver
at trial “leaves no error to correct on appeal.” Ahern, 76 M.J. at 197 (citing
Campos, 67 M.J. at 332). Where an appellant “affirmatively decline[s] to object
to the military judge’s instructions and offer[s] no additional instructions,” he
may thereby affirmatively waive any right to raise the issue on appeal, even
“in regards to the elements of the offense.” United States v. Davis, 79 M.J. 329,
331 (C.A.A.F. 2020). Instructions that would be otherwise required may be
waived, such as instructions on affirmative defenses. See, e.g., United States v.
Rich, 79 M.J. 472, 477 (C.A.A.F. 2020); United States v. Gutierrez, 64 M.J. 374,
377–78 (C.A.A.F. 2007). “Whether an appellant has waived an issue is a legal
21
United States v. Westcott, No. ACM 39936
question that this [c]ourt reviews de novo.” Davis, 79 M.J. at 331 (citing United
States v. Haynes, 79 M.J. 17, 19 (C.A.A.F. 2019)).
3. Analysis
By stating on the record that the Defense had no objection, Appellant af-
firmatively waived any objection to the military judge’s instructions. Trial de-
fense counsel said they had no objection to the instructions both before and
after they were given to the members. The Defense had these instructions in
writing and listened to the military judge read them in open court. Under Da-
vis, the only conclusion available is that Appellant waived the issue of the def-
inition of consent. 79 M.J. at 331.
However, the CAAF has made clear that the Courts of Criminal Appeals
have discretion, in the exercise of their authority under Article 66, UCMJ, 10
U.S.C. § 866, to determine whether to apply waiver or to pierce that waiver in
order to correct a legal error. See Hardy, 77 M.J. at 442–43; United States v.
Chin, 75 M.J. 220, 222–23 (C.A.A.F. 2016) (discussing our ability to correct
error despite waiver).
Although the omission of the consent instruction was apparently due to the
military judge’s oversight—and the absence of a defense objection was the
product of a similar oversight on trial defense counsel’s part—Appellant had
ample opportunity to review and object to the instructions. Appellant’s post-
trial argument that the military judge did not strictly follow the proposed
Benchbook language does not warrant our intervention, especially when we
consider the fact that “the Benchbook is not binding as it is not a primary
source of law.” United States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013). Even
if we were to pierce Appellant’s waiver, we conclude Appellant was not preju-
diced by the instructions that were given, as discussed in Section II(F)(2)(a),
infra. Therefore, we will leave Appellant’s waiver intact.
E. Testing the Basis of Character Testimony
Appellant argues the military judge erred in permitting the Government to
ask a defense character witness about allegations Appellant had sexually as-
saulted his previous wife. We disagree.
1. Additional Background
In pre-sentencing proceedings, the Defense called Mr. BB, a friend of Ap-
pellant’s. During Mr. BB’s brief testimony, he explained that he befriended
Appellant when the two of them were sophomores in high school and that they
had kept in touch over the years, including through Appellant’s court-mar-
tial—a period of approximately 15 years. Trial defense counsel asked Mr. BB
to describe Appellant, and Mr. BB spoke approvingly of Appellant as a father
and a friend. In the midst of his narrative response, Mr. BB said,
22
United States v. Westcott, No. ACM 39936
[Appellant] has been there for me when I had family emergen-
cies and issues, and the same way around. [Appellant] would
never turn your [sic] back on anybody, [Appellant] wouldn’t hurt
anybody. It’s not in his DNA to hurt anybody. And I can tell you
that from high school to everything else, [Appellant] would never
do anything wrong to you. He would actually help you if he could
and he would do whatever he can.
Mr. BB’s direct examination concluded shortly thereafter and trial counsel
requested an Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing. In that hearing,
trial counsel argued that by saying Appellant “wouldn’t hurt anyone,” Mr. BB
had opened the door to allow the Government to ask him if he was aware Ap-
pellant’s ex-wife had also accused Appellant of sexual assault.19 The Defense
objected to the question and argued the military judge should determine what
Mr. BB’s answer would be while outside the members’ presence, because trial
defense counsel believed Mr. BB had no knowledge of the allegation. The mili-
tary judge said he would permit the question, specifically noting he concluded
the question’s probative value was not outweighed by the danger of unfair prej-
udice in light of the fact he was only permitting trial counsel to ask the one
question. He explained the question was permissible to test Mr. BB’s opinion,
and he further ruled the question would be asked for the first time in front of
the members. When the members returned to the courtroom and Mr. BB was
asked if he was aware of the allegation, he said he was not.
After two more defense witnesses and Appellant’s unsworn statement, the
Defense rested and the members were excused. At some point, one of the panel
members submitted this written question to the military judge: “Is it possible
for the panel to learn more of the allegations [Appellant’s] ex-wife made
against him, specifically the nature of the claims in [sic] any findings related
to them.” This led trial defense counsel to move for a mistrial, arguing trial
counsel did not have a good faith basis for asking the question in the first place
and that they were simply trying to “poison the well” by putting the allegation
in front of the members. The military judge denied the motion, reiterating his
view that the question was, in fact, proper because “the [D]efense opened the
door.” The military judge read a proposed instruction to the parties, to which
trial defense counsel said, “We don’t want that instruction.” The military judge
responded, “You just asked for mistrial, I’m giving the instruction.” When the
members returned, the military judge instructed them:
19 Trial counsel had provided pretrial notice to the Defense of their intent to raise the
alleged sexual assault in rebuttal. Trial counsel also explained to the military judge
the factual basis for the allegation.
23
United States v. Westcott, No. ACM 39936
During the testimony of [Mr. BB], he was asked whether he was
aware that [Appellant] was alleged to have assaulted his ex-wife.
This was a permissible question, however there is no evidence
that [Appellant] assaulted his ex-wife. This question was per-
mitted to test the basis of the witness’s opinion, and to enable
you to assess the weight you accord to his testimony. You may
not consider the question for any other purpose.
The military judge asked the members if they could follow this instruction, and
he noted he received an affirmative response from each of them.
2. Law
Cross-examination concerning prior misconduct, “if there is a good-faith be-
lief for the question, is the means of testing a witness’[s] testimony concerning
an accused’s character.” United States v. Pruitt, 46 M.J. 148, 151 (C.A.A.F.
1997) (footnote omitted); see also Mil. R. Evid. 405(a). One purpose of such an
inquiry is “to raise questions about the witness’[s] standard of evaluating good
character.” Pruitt, 46 M.J. at 151. However, “the cross-examiner is not allowed
to prove the existence of the acts about which he asks.” United States v. Mar-
tinez, No. ACM S31909, 2012 CCA LEXIS 324, at *7 (A.F. Ct. Crim. App. 23
Aug. 2012) (unpub. op) (quoting Stephen A. Saltzburg, et al., Military Rules of
Evidence Manual 496 (3d ed. 1991)). Thus, the suggestion of prior misconduct
in so-called “have you heard” or “did you know” questions is not offered to prove
the misconduct occurred, but rather to evaluate the witness’s opinion. United
States v. Beno, 324 F.2d 582, 588 (2d Cir. 1963), cited with approval in United
States v. Trimper, 28 M.J. 460, 467 (C.M.A. 1989); United States v. Anderson,
No. ACM 39141, 2018 CCA LEXIS 122, at *5 (A.F. Ct. Crim. App. 28 Feb. 2018)
(unpub. op.) (explaining that counsel may, on a good-faith basis, ask such ques-
tions to test the basis for and attempt to undermine the witness’s opinion).
Such “have you heard” questions must still pass muster under Mil. R. Evid.
403 before they are asked. United States v. Pearce, 27 M.J. 121, 125 (C.M.A.
1988). This imposes the “heavy responsibility” on the military judge to “protect
the practice from any misuse.” Id. (quoting Michelson v. United States, 335
U.S. 469, 480 (1948)). Military judges are afforded broad discretion in applying
Mil. R. Evid. 403, but we give less deference to military judges “if they fail to
articulate their balancing analysis on the record.” United States v. Collier, 67
M.J. 347, 353 (C.A.A.F. 2009) (quoting United States v. Manns, 54 M.J. 164,
166 (C.A.A.F. 2000)).
3. Analysis
We conclude the military judge did not abuse his discretion in permitting
the Government to test the foundation of Mr. BB’s opinions by asking him if
24
United States v. Westcott, No. ACM 39936
he was aware of the prior assault allegation. Mr. BB had testified to Appel-
lant’s positive character attributes and declared Appellant would not hurt an-
yone, based upon their decade-and-a-half-long friendship. This left the impres-
sion that Appellant was a kind and nonviolent person and had been so the
entire time they had been friends. The fact Mr. BB was not aware of the alle-
gation tends, in some slight fashion, to undermine the basis for his opinion
about Appellant’s character. This is so because it demonstrated Mr. BB’s expo-
sure to Appellant was arguably limited and therefore his opinion was entitled
to less weight. See, e.g., Pearce, 27 M.J. at 125 (finding no error in asking a
witness if he was aware the appellant had been under investigation several
years prior to his court-martial for a similar offense, in part because the wit-
ness’s lack of knowledge of the investigation undercut the basis for the wit-
ness’s opinion about the appellant’s honesty).
The military judge’s analysis of this issue is wanting, however. While he
said he found the probative value of the question to not be substantially out-
weighed by unfair prejudice, he did not say how he came to the conclusion or
what factors he considered, other than that he was going to limit trial counsel
to asking just one question. As a result of his failure to articulate his analysis,
we grant the military judge’s ruling less deference than we otherwise would
have given it.
Under Mil. R. Evid. 403, evidence may be excluded if its “probative value is
substantially outweighed by a danger of . . . unfair prejudice.” In the case of
Appellant standing trial for sexually assaulting his wife, the deeply prejudicial
value of suggesting to the members he also sexually assaulted his ex-wife
would not seem up for debate. Indeed, trial counsel’s singular question on the
matter almost immediately led a member to ask for more information about
the allegation.
In one sense, the probative value of the question was low, considering Mr.
BB had no knowledge of the allegation—which meant the members were not
permitted to consider the truth of the allegation.20 Trial counsel did not seek
to ask Mr. BB if such an allegation would change his opinion, nor did trial
counsel comment on Mr. BB’s testimony at all in the Government’s sentencing
argument. This definitely raises the specter that this question was put to Mr.
BB not so much for the purpose of testing the basis of his opinion, but to instead
20 We also note that trial counsel asked if Mr. BB was aware Appellant had been ac-
cused of sexually assaulting his ex-wife as opposed to asking about Appellant’s actual
conduct. The CAAF has held this is “an error of form, not substance.” United States v.
Pearce, 27 M.J. 121, 124 (C.M.A. 1988).
25
United States v. Westcott, No. ACM 39936
communicate uncharged misconduct to the members.21 On the other hand, it
was the Defense that called Mr. BB, who testified about his long-standing
friendship with Appellant and his belief that Appellant would not hurt any-
body and “would never do anything wrong to you.” These attributes squarely
relate to Appellant’s rehabilitative potential and the question of whether soci-
ety needed to be protected from Appellant with a lengthy term of confinement.
The fact Mr. BB was unaware of such a serious allegation demonstrates his
relationship with Appellant was not as close as he portrayed it, which, in turn,
undermined the basis of his opinion. After trying to portray himself as not be-
ing capable of harming anyone, Appellant can hardly claim surprise that the
Government sought to test the basis for that characterization. See, e.g., Michel-
son, 335 U.S. at 485 (noting that defendants “have no valid complaint at the
latitude which existing law allows to the prosecution to meet by cross-exami-
nation an issue voluntarily tendered by the defense”).
We do not find the military judge abused his discretion in allowing trial
counsel to test Mr. BB’s opinion by asking about the prior sexual assault alle-
gation. Having conducted our own analysis under Mil. R. Evid. 403, we con-
clude the relevance of testing the basis for Mr. BB’s opinion was not substan-
tially outweighed by the danger of unfair prejudice. The Government was not
required to let Mr. BB’s testimony go unanswered or its basis untested, and
therein lay the relevance of the Government’s question. While the question was
assuredly prejudicial, we do not characterize it as unfairly prejudicial in light
of the fact it was the Defense which brought Mr. BB’s testimony in the first
place. We also note only a single question on the matter was asked, and Mr.
BB disavowed any knowledge of the allegation. The question was devoid of
specific details and only asked if Mr. BB knew Appellant had been accused of
committing sexual assault. In Pearce, the CAAF noted that the fact a person
has been merely investigated for an offense is “if anything, mitigating” because
“[m]any an innocent person has been investigated, merely to be exonerated.”
27 M.J. at 124. We see no difference here. Therefore, we conclude Mil. R. Evid.
403 would not operate to prohibit the question posed by the Government in
Appellant’s case.
However, even if the military judge erred in allowing this information to be
presented, we ask whether “the error substantially influenced the adjudged
sentence.” United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005) (citing
United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001)). We conclude that it
21 Notably, if the Government had sufficient evidence of Appellant committing a prior
sexual assault, the Government had the ready ability to offer such evidence under Mil.
R. Evid. 413.
26
United States v. Westcott, No. ACM 39936
did not. The military judge’s instruction told the members they could not con-
sider the allegation as being true in light of Mr. BB’s testimony that he was
unaware of it. Absent evidence to the contrary, we may “presume that mem-
bers follow[ed] [the] military judge’s instructions.”22 United States v. Taylor, 53
M.J. 195, 198 (C.A.A.F. 2000) (citations omitted). In addition, trial counsel did
not return to the allegation during sentencing argument or otherwise seek to
capitalize on it. Thus, we see no indication the question operated to substan-
tially influence Appellant’s sentence.
F. Allegations of Ineffective Assistance of Counsel
At trial, Appellant was represented by his detailed military counsel, Major
(Maj) TK, along with two civilian counsel, Mr. JO and Ms. MK. On appeal,
Appellant asserts that his counsel committed numerous errors which cumula-
tively deprived him of the effective assistance of counsel. He specifically raises
12 different alleged deficiencies, 11 of which we discuss below—several of
which we consolidate for our analysis.23 Based on Appellant’s allegations, we
ordered and received declarations from his trial defense counsel which we con-
sider in addressing his claims. See United States v. Jessie, 79 M.J. 437, 442
(C.A.A.F. 2020).
1. Law
The Sixth Amendment guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). We
review allegations of ineffective assistance de novo. United States v. Gooch, 69
M.J. 353, 362 (C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470, 474
(C.A.A.F. 2009)). In assessing the effectiveness of counsel, we apply the stand-
ard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin
with the presumption of competence announced in United States v. Cronic, 466
U.S. 648, 658 (1984). Gilley, 56 M.J. at 124 (citing United States v. Grigoruk,
52 M.J. 312, 315 (C.A.A.F. 2000)). “[O]ur scrutiny of a trial defense counsel’s
performance is ‘highly deferential,’ and we make ‘every effort . . . to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate conduct from counsel’s perspective at the
22 Although one panel member asked for more information about the allegation, this
occurred before the military judge had instructed the members on how they could con-
sider the question put to Mr. BB.
23 Appellant’s twelfth alleged deficiency is based on his counsel agreeing to a two-
month continuance relating to the post-trial Article 39(a), UCMJ, hearing. We con-
clude this allegation warrants neither discussion nor relief. See United States v. Ma-
tias, 25 M.J. 356, 361 (C.M.A. 1987).
27
United States v. Westcott, No. ACM 39936
time.’” United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (omission in
original) (quoting Strickland, 466 U.S. at 689).
We will not second-guess reasonable strategic or tactical decisions by trial
defense counsel. Mazza, 67 M.J. at 475 (citation omitted). “Defense counsel do
not perform deficiently when they make a strategic decision to accept a risk or
forego a potential benefit, where it is objectively reasonable to do so.” United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citing Gooch, 69 M.J. at
36263). The burden is on the appellant to demonstrate both deficient perfor-
mance and prejudice. Id. (citation omitted).
If an appellant’s allegations are true, we consider the following factors to
determine whether the presumption of competence has been overcome: (1)
whether “there a reasonable explanation for counsel’s actions;” (2) whether de-
fense counsel’s level of advocacy fell “measurably below the performance” ordi-
narily expected of “fallible lawyers;” and (3) if defense counsel were ineffective,
whether there is “a reasonable probability” there would have been a different
result absent the ineffective representation. Gooch, 69 M.J. at 362 (quoting
United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)); see also Akbar, 74 M.J.
at 386 (applying same standard for defense counsel’s performance during sen-
tencing proceedings). Considering the last question, “[i]t is not enough to show
that the errors had some conceivable effect on the outcome,” instead, it must
be a “probability sufficient to undermine confidence in the outcome,” including
“a reasonable probability that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt.” Datavs, 71 M.J. at 424 (internal quotation
marks and citations omitted).
It is only in those limited circumstances where a purported “strategic” or
“deliberate” decision is unreasonable or based on inadequate investigation that
it can provide the foundation for a finding of ineffective assistance. See United
States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005).
2. Analysis
Considering the entire record, the assertions Appellant makes in his as-
signments of error, along with trial defense counsel’s declarations, we conclude
that Appellant has not carried his burden to demonstrate he is entitled to re-
lief. We examine each allegation in turn.
a. Findings Instructions
Appellant claims his counsel were deficient in failing to object to the mili-
tary judge’s findings instructions to the extent they omitted the definition of
“consent,” as discussed in Section II(D), supra.
During the 11 May 2020 post-trial hearing on the issue of the missing in-
struction, Ms. MK said she wanted to “take a moment to foot stomp some
28
United States v. Westcott, No. ACM 39936
things for the appellate record” regarding the Defense’s possible waiver of the
issue “to highlight for the appellate court that if the [D]efense—if we missed
it, the defense actions were IAC and insufficient.” We note the acronym “IAC”
typically stands for “ineffective assistance of counsel.” She went on to explain
that the Defense assumed the military judge would give “the standard instruc-
tions” for the abusive and aggravated sexual contact specifications, but they
“did not see the language that was missing from the standard instruction.”
This led the military judge to ask Ms. MK whether she had read the draft in-
structions when they were first sent to the parties. Mr. JO answered,
I reviewed the instructions that night. When I review the in-
structions, I’m reviewing for special language, I’m looking—I,
I’m usually able to find a typo or two. Usually I’m able to find
can instead of a can’t, and that’s what I’m looking for. I, I did not
notice that the standard consent instruction was not there. . . . I
mean we do the comparison with the electronic bench book[,]
make sure everything measured up, measured up side to side,
and all instructions that was comfortable [sic] with the Court’s
reading. If, [ ] the court would’ve had a consent instruction it
would’ve said consent means you must say no, then I would’ve
noticed, but . . . I did not notice the negative. And yeah, I mean
it matched, it matched the drop down menu in the Army bench
book.
The military judge pointed out that he had asked the parties if they had
any objections after he read the instructions to the members in open court. Mr.
JO explained that when the instructions are being read to the members, he
just listens to determine whether the military judge accurately reads the in-
structions as written, and is not assessing whether additional instructions
should be given. He said the fact the consent instruction was “missing alto-
gether” was “quite frankly, something [he] did not see.” The Defense argued
the military judge should declare a mistrial, but the military judge declined to
grant relief. As noted above, the military judge’s ruling is absent from the rec-
ord of trial docketed with this court.
In their declarations, all three counsel admit they overlooked the fact the
instructions did not define consent. Mr. JO and Ms. MK say the electronic ver-
sion of the Benchbook they used contained an error in which the consent in-
struction was omitted, but they have provided no further evidence in support
of this claim.
Based upon trial defense counsel’s own assertions, there was no strategic
or tactical decision behind not objecting to the instructions—they thought the
instruction should be given, but it was not. This was purely the result of over-
sight. Counsel suggest the problem arose from some flaw in the Benchbook, but
29
United States v. Westcott, No. ACM 39936
the Benchbook itself indicates it is designed to “assist military judges . . . in the
drafting of necessary instructions” with “the pattern instructions . . . intended
only as guides.” Benchbook at 3. As noted above, the Benchbook is advisory in
nature. See Riley, 72 M.J. at 122.
While we recognize that defense counsel—like all trial participants—are
fallible, trial defense counsel perceived that their error here was so significant
that they argued a mistrial was the only appropriate remedy. We have no ready
ability to determine whether the version of the Benchbook being used at the
time in fact omitted the instruction at issue, but that is of no moment, because
the Benchbook is an aid to—not a replacement for—independent and compe-
tent legal analysis. Trial defense counsel had the obligation to carefully review
the draft instructions and propose their own instructions based upon the facts
of Appellant’s case and the state of the law. Considering the Defense’s strategy
was to argue Ms. SW had consented to the conduct in question based upon her
alleged prior sexual conduct with Appellant, we find it all the more difficult to
excuse trial defense counsel’s failure to ensure the military judge instructed
the members on that precise point.
We conclude Appellant’s counsel’s conduct fell measurably below of that
expected of attorneys on this point, but Appellant is only entitled to relief if he
establishes there is a reasonable probability of a different result in the absence
of the errors. Gooch, 69 M.J. at 362. We find he has not done so. Under the
Defense’s theory, the members needed to be put on notice that the fact Ms. SW
had, on past occasions, initially rebuffed Appellant’s advances but later con-
sented to sexual activity could be used to assess whether she consented during
the charged events, or, alternatively, that Appellant might have been mistaken
about her consent. However, the military judge did, in fact, instruct the mem-
bers on both points. First, he told the members that evidence of Ms. SW’s past
acts of sexual and physical contact “should be considered . . . on the issue of
whether [she] consented to the sexual and physical acts with which the accused
is charged.” Second, he explained that the defense of mistake of fact applied to
each of the charged offenses and that it was the Government’s burden to prove
beyond a reasonable doubt the defense did not apply. Moreover, the military
judge explained that lack of consent was an element of the abusive sexual con-
tact offense, which the Government was required to prove.
We are not convinced the missing instruction would have provided enough
force to lead to Appellant’s acquittal or otherwise undermine our faith in the
verdict. That instruction would have told the members that all evidence con-
cerning consent is relevant and must be considered, and that evidence of con-
sent may cause the members to have a reasonable doubt as to whether the
Government proved Appellant committed the offenses beyond a reasonable
doubt. The remainder of the instruction would have described consent as “a
30
United States v. Westcott, No. ACM 39936
freely given agreement to the conduct at issue,” and would have then included
a number of examples of non-consent, such as an “expression of lack of consent
through words or conduct.” To the extent the members believed Ms. SW’s tes-
timony, this last point squarely cuts against Appellant, as she testified she
repeatedly told him to stop. To be sure, the military judge’s instructions would
have been superior had he employed the recommended Benchbook instructions
or the statutory definitions enshrined in the UCMJ, but the Defense’s theory
was adequately covered by the instructions that were given, and Appellant is
entitled to no relief.
b. Ms. SW’s Recorded Interview
Appellant claims his counsel were deficient in allowing the Government to
introduce the entirety of Prosecution Exhibit 1, Ms. SW’s recorded interview
with the Hoke County Sheriff’s Office, discussed in Section II(C), supra.
At trial, the Defense agreed with the admission of the complete interview,
even raising concerns that the members might receive something less than the
entire recording. Appellant’s argument is that this permitted the Government
to present a “bolstering repetition of the allegation” without any strategic or
tactical purpose. In his declaration, Mr. JO states he concluded the interview
was “a mixed bag for both parties,” and that “showing the entire video was
more beneficial than showing only the portions which benefited the Govern-
ment.” Ms. MK echoes that sentiment, stating that “[w]hile the video contained
statements by [Ms. SW] supporting the allegations . . . her demeanor during
the report and discussion with law enforcement also contained information fa-
vorable to the Defense.” Maj TK further explains that by showing the entire
interview, the members were able to see Ms. JR interrupting the interview to
“fill in the gaps or add her own perspective and details,” as well as see Ms. JR’s
dislike of Appellant. This fed into a Defense theory that Ms. JR may have en-
couraged Ms. SW to fabricate the allegations or provided her incentive to do
so.
Agreeing to admit the entire interview was a strategic choice on trial de-
fense counsel’s part. We do not find the choice unreasonable and we will not
second-guess it. Indeed, one theory advanced by the Defense was that because
Ms. SW did not tell the interviewers about any abuse committed by Appellant
other than that which occurred on 23 May 2018, none of the allegations of prior
abuse was true. Appellant was acquitted of the prior conduct, raising the in-
ference that trial defense counsel’s strategy worked to Appellant’s advantage.
c. Cross-examination of Ms. SW
Appellant argues his counsel were ineffective in failing to cross-examine
Ms. SW on two of the four alleged specifications, the two specifications of which
the members found Appellant guilty. Appellant submits it was “inexcusable in
31
United States v. Westcott, No. ACM 39936
any circumstance to not even mention half the charge sheet or try to defend the
client on those specifications.”
We are not convinced. A failure to cross-examine a witness does not itself
constitute ineffective representation. Grigoruk, 52 M.J. at 315. In order to pre-
vail in this argument, Appellant must show what the missing cross-examina-
tion “might reasonably have accomplished.” Id.
According to Ms. MK, the Defense reviewed all of Ms. SW’s available state-
ments and interviewed her twice. Ms. MK’s assessment was that Ms. SW pre-
sented as calm, polite, and respectful. Moreover, in considering her extensive
discussions with Appellant, Ms. MK believed that cross-examining Ms. SW
about the specifics of the events of 23 May 2018 “would not result in any favor-
able information for [Appellant].”
“The decision whether to cross-examine a witness, and if so, how vigorously
to challenge the witness’[s] testimony, requires a quintessential exercise of pro-
fessional judgment.” Ford v. Cockrell, 315 F. Supp. 2d 831, 859 (W.D. Tex.
2004), aff’d, 135 F. App’x 769 (5th Cir. 2005). On cross-examination, Appel-
lant’s trial defense counsel sought to portray Ms. SW as being frustrated with
her marriage and having a financial incentive to fabricate allegations of as-
sault. They further elicited the fact that Ms. SW would sometimes initially not
consent to Appellant’s sexual advances but eventually acquiesce to them—an
important part of the Defense’s overall theory. Appellant’s complaint on appeal
is somewhat misleading in that it suggests trial defense counsel cross-exam-
ined Ms. SW about some alleged assaults, but not others. In reality, trial de-
fense counsel only asked about one particular alleged assault, and only on the
point that Ms. SW had made an inconsistent statement as to what physical
position she and Appellant were in at the time. The remainder of the cross-
examination was focused on eliciting support for the argument that Ms. SW
consented to all the conduct and fabricated allegations of assault.
Our assessment is that the defense team made a strategic decision to ap-
proach cross-examination in the manner they did, informed by their pretrial
interviews of Ms. SW. Considering Ms. SW had detailed the events of 23 May
2018 during her direct examination and that her earlier interview was admit-
ted into evidence, an entirely reasonable course of action for the Defense was
to not have her allegations repeated for a third time. Appellant has not sug-
gested what lines of questioning trial defense counsel should have pursued,
much less demonstrated either what information would have been obtained or
how it would have helped his case. Without doing so, Appellant cannot prevail
on this claim.
32
United States v. Westcott, No. ACM 39936
d. Closing Arguments
Appellant argues his counsel were ineffective by giving a short closing ar-
gument which did not specifically address the 23 May 2018 events, comment
on photographs of Ms. SW’s bruises, or attempt to minimize Ms. JR’s opinion
about Ms. SW’s character for truthfulness.
The Defense’s closing argument was relatively streamlined, comprising
four pages of the transcript, compared to the Government’s 14-page argument.
Nonetheless, it featured the Defense’s core arguments: that sexual contact be-
tween Appellant and Ms. SW was consensual throughout their marriage; that
Ms. SW would often say “no” at first, but then later consent; that Ms. SW had
falsely accused Appellant for financial motives; that despite her trial testimony
of long-lasting sexual abuse, Ms. SW married Appellant and never reported
any abuse until she moved out of the house; that Ms. SW’s testimony lacked
detail as to when the alleged abuse prior to 23 May 2018 occurred; that when
she made her report at the Hoke County Sheriff’s Office, she made no reference
to any of the other instances of abuse she alleged at trial; and that her report
amounted to “my husband was mean to me” but evolved over time to be far
more expansive. Trial defense counsel further pointed out that military law
enforcement did not follow regulations and failed to record their interview with
Ms. SW—depriving the members of the ability to see the changes in Ms. SW’s
allegations—and argued the Government only offered one of Ms. SW’s state-
ments to law enforcement, even though she gave five. Finally, trial defense
counsel told the members to “pay attention” to the mistake of fact instruction.
“The right to effective assistance extends to closing arguments.” Yar-
borough v. Gentry, 540 U.S. 1, 5 (2003) (citations omitted). “Counsel has wide
latitude in deciding how best to represent a client, and deference to counsel’s
tactical decisions in [ ] closing presentation is particularly important because
of the broad range of legitimate defense strategy at that stage.” Id. at 5–6.
Closing argument serves to “‘sharpen and clarify the issues for resolution by
the trier of fact,’ but which issues to sharpen and how best to clarify them are
questions with many reasonable answers.” Id. at 6 (quoting Herring v. New
York, 422 U.S. 853, 862 (1975)). Thus, “[j]udicial review of a defense attorney’s
summation is therefore highly deferential . . . .” Id.In her declaration, Ms. MK—who gave the closing argument—says she felt
the Government’s “overly long and technical” slide-based argument had left
the members fatigued. She explains that, in her experience, “military panels
prefer shorter, concise arguments.”
Despite criticizing trial defense counsel for giving too short of a closing ar-
gument, Appellant offers little in the way of explanation as to how taking a
different tack in closing would have resulted in a different outcome. Appellant
33
United States v. Westcott, No. ACM 39936
makes the sweeping generalization that “[i]t is inconceivable for counsel to not
discuss half of the case” by not specifically talking about the 23 May 2018
events, yet he provides no indication of what he believes trial defense counsel
should have said. As explained above, the Defense’s approach was to paint sex-
ual interactions between Appellant and Ms. SW during their marriage as rou-
tinely shifting from opposition to consent. Contrary to Appellant’s assertion on
appeal, Ms. MK did not carve the 23 May 2018 episode out of her argument—
instead, she treated that complaint as false and characterized it as Ms. SW
saying Appellant “was mean” to her.
Trial counsel argued that Ms. SW’s bruises, which were photographed and
admitted into evidence, corroborated her testimony. Essentially, the Govern-
ment’s theory was that some of the bruises were caused by Appellant grabbing
her leg and by pinning her down. In making this argument, trial counsel told
the members to look for “fingerprints” and “what looks like a thumbprint.” Ms.
MK did not refer to the bruises in her argument. On appeal, Appellant says
Ms. MK “should have commented that the Government’s failure to prove those
fingerprints were [Appellant’s] fingerprints is evidence of a conclusory, shoddy
investigation.” We, however, do not understand trial counsel’s references to
“fingerprints” to be fingerprints in the forensic-identification sense, and Appel-
lant has offered nothing that would suggest a bruise can yield a fingerprint
which could be matched with a suspect. Such a proposition runs counter to
common human experience and seems implausible on its face—meaning, Ap-
pellant’s proposed argument would have run the very real risk of losing credi-
bility in the members’ eyes.
During Ms. JR’s testimony, trial counsel elicited her opinion that her sister
was truthful. During cross-examination of one of the law enforcement wit-
nesses, trial defense counsel demonstrated investigators had not attempted to
determine whether Ms. SW was, in fact, a truthful person. In closing, trial
counsel argued Ms. SW had a character for truthfulness, based upon Ms. JR’s
testimony. Ms. MK did not specifically refer to this character evidence in the
Defense’s closing argument; instead, she broadly cast Ms. SW as lying about
her accusations. Appellant believes Ms. MK was deficient by not telling the
members to discount Ms. JR’s assessment based upon the facts Ms. JR is Ms.
SW’s sister and Ms. JR does not like Appellant. We are not convinced the ab-
sence of this comment is as significant as Appellant would have us conclude.
For one, the military judge twice told the members that they should consider
the witness’s friendships, prejudices, “the relationship each witness may have
with either side; and how each witness might be affected by the verdict.” More-
over, Ms. JR’s opinion apparently did not have as commanding an effect as
Appellant now argues, given that the members acquitted him of the sexual
assault and neck-grabbing offenses Ms. SW testified about.
34
United States v. Westcott, No. ACM 39936
Appellant would have us conclude the members would have acquitted him
of all charges had trial defense counsel given a different closing argument, but
he has failed to demonstrate that is a reasonable probability. Appellant was
convicted of committing abusive and aggravated sexual contact on 23 May
2018. Ms. SW reported those offenses both to her sister and law enforcement
shortly after they occurred. Photographs of her bruises corroborated her alle-
gation, and her in-trial testimony was substantially similar to her initial re-
port. In comparison, her testimony about the prior sexual assaults and neck-
grabbing incident was vague, lacked specifics as to when those offenses oc-
curred, and was undermined both by the fact she did not tell anyone about
those offenses when they occurred and by her concession that sometimes she
would consent to sexual activity that she initially objected to.
While other counsel may have given a different closing argument, Ms. MK’s
argument was well within the latitude afforded to trial defense counsel. Even
if we assume for purposes of analysis that her argument did fall short, we are
not persuaded Appellant would have seen a different result in his verdict.24 In
other words, Ms. MK has provided a reasonable explanation for giving the ar-
gument she did, her level of advocacy did not fall measurably below the perfor-
mance ordinarily expected of fallible lawyers, and—even if she was ineffec-
tive—Appellant has not shown a reasonable probability that, absent the errors,
there would have been a different result. Gooch, 69 M.J. at 362.
e. Expert Consultants
Appellant next argues his counsel were ineffective by failing to request the
appointment of a forensic pathologist and a fingerprint expert. He does not
specifically explain what sort of information either expert would provide, but
he contends they could have supported a theory that Appellant was “not so
forceful” (because Ms. SW did not notice the bruises until Ms. JR pointed them
out) or that the bruises “were attributable to another source.”
According to Ms. MK, trial defense counsel did discuss the bruising with a
medical consultant, and she determined “it was not an area where an expert
would benefit [Appellant].” Mr. JO further explained that the Defense antici-
pated medical experts would likely corroborate, rather than refute, Ms. SW’s
version of events, based upon statements Appellant made to trial defense coun-
sel. Appellant submitted a declaration in support of his complaint of ineffective
24 Our dissenting colleague contends trial defense counsel were ineffective by not ar-
guing the lack of evidence that Appellant touched Ms. SW’s “groin,” an argument which
Appellant has not advanced on appeal. For the same reasons discussed in Section
II(B)(3), supra, we are skeptical this argument would have gained traction with the
members, and we conclude the absence of the argument does not amount to ineffec-
tiveness.
35
United States v. Westcott, No. ACM 39936
assistance of counsel, but he does not address this issue. Thus, we have nothing
before us indicating Appellant did not agree with this assessment at the time.
“[A] particular decision not to investigate must be directly assessed for rea-
sonableness in all the circumstances, applying a heavy measure of deference
to counsel’s judgments.” United States v. Anderson, 55 M.J. 198, 201–02
(C.A.A.F. 2001) (alteration in original) (citing Strickland, 466 U.S. at 691).
“[W]hen a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue
those investigations may not later be challenged as unreasonable.” Strickland,
466 U.S. at 691.
Appellant’s perfunctory claim that expert assistance might have turned the
tide in his case is insufficient to lead us to a conclusion his counsel were inef-
fective. He has not attempted to explain what information such assistance
might have yielded or how it would have helped his case. He has not suggested
that a fingerprint could be identified from a picture of a bruise or that an expert
could look at the pictures and determine whether or not they corresponded
with Ms. SW’s description of the events. Instead, the information before us in-
dicates trial defense counsel did seek medical guidance, determined expert as-
sistance would not assist Appellant’s case, and decided to focus their attention
on other matters. We decline to conclude trial defense counsel needed to do
more.
f. Appellant’s Decision to Not Testify
Just before Appellant’s court-martial began, the military judge held an
R.C.M. 802 conference with counsel from both sides. According to Maj TK, Mr.
JO told the military judge—in the presence of trial counsel—that he “always
put[s his] guy on the stand,” or words to that effect. Surprised by this comment,
Maj TK informed Appellant of this revelation.25 As the court-martial pro-
gressed, all three defense counsel advised Appellant against testifying, and he
ultimately decided not to do so.
In support of this appeal, Appellant submitted a declaration in which he
asserts that after he learned about Mr. JO’s comment, he “received conflicting
advice from [his] defense counsel about whether or not [he] should testify.” He
25 In his declaration, Mr. JO asserts that what he said during the R.C.M. 802 confer-
ence was that “in a he-said, she-said case, one can expect the Accused to testify.” We
need not reconcile the differences between Maj TK’s and Mr. JO’s respective recollec-
tions. Because Maj TK, at the very least, understood Mr. JO’s comment to be a decla-
ration Appellant would testify, we will analyze this issue from Maj TK’s recollection,
as he was the one who first informed Appellant of what had occurred. Having consid-
ered the factors articulated in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997),
we conclude a post-trial hearing on this point is unwarranted.
36
United States v. Westcott, No. ACM 39936
also writes, “What made the difference for me in electing not to testify, when I
had originally planned to and wanted to do so, was knowing that trial counsel
had been notified of our intent and that he would be preparing his cross-exam-
ination that night accordingly.”
In his declaration, Maj TK states that he was under the impression the
decision as to whether or not Appellant would testify had not been made at the
time of Mr. JO’s comment. Maj TK also explains that while he did not agree
with the disclosure, he also did not think Appellant testifying would be helpful
to his case. Mr. JO and Ms. MK likewise took a dim view of Appellant testifying
based upon his poor performance in mock examinations during trial prepara-
tion. All three defense counsel characterize Appellant as being agitated, emo-
tional, and combative both in trial preparation and after hearing the testimony
of the Government’s witnesses. Mr. JO and Ms. MK note Appellant was prone
to engaging in diatribes and making defamatory comments about Ms. SW dur-
ing the practice examinations. Ms. MK says she was also concerned about Ap-
pellant’s ability to control his anger on the stand and how he would respond to
being confronted with alleged misconduct from his prior marriage. All three
counsel say they had extensive discussions with Appellant about whether to
testify and they emphasized to Appellant it was his decision whether or not to
do so. Maj TK avers he provided Appellant this guidance both orally and in
writing. After these discussions, Appellant decided not to testify on his own
behalf.
Appellant argues there was no strategic reason to disclose that he would
testify, and that by doing so, he was faced with the choice of “walk[ing] into a
cross-examination a seasoned circuit trial counsel prepared on 24 hours ad-
vance notice or [forgoing] the opportunity to declare innocence and hope for the
best.” While some defense counsel may keep their client’s decision to testify a
secret in hopes of surprising trial counsel, we would imagine such a strategy
would be ineffective against all but the most inexperienced prosecutors. The
notion that a prosecutor would be unprepared for an accused to take the
stand—especially in a case where the accused is the only other witness to the
alleged events—strikes us as highly implausible. Appellant, meanwhile, was
well aware he could be cross-examined because he had been practicing such
with his counsel.
After the Defense rested its case, the military judge specifically asked Ap-
pellant if his decision to not testify in findings was his personal decision. Ap-
pellant stated, “Yes, Your Honor.” While Mr. JO’s statement in the R.C.M. 802
conference may have been one factor in Appellant’s calculus, we see no indica-
tion that Appellant did not make a voluntary choice not to testify. By all ac-
counts, trial defense counsel diligently worked with Appellant to prepare him
for both being cross-examined as well as to intelligently determine whether or
37
United States v. Westcott, No. ACM 39936
not to testify. Appellant has not shown that Mr. JO’s representation fell below
the standards expected of defense counsel, and we do not find Mr. JO ineffec-
tive for disclosing Appellant’s intent to testify.
g. Absence of Unreasonable Multiplication of Charges Motion
Appellant next argues his counsel were ineffective in failing to raise a mo-
tion alleging unreasonable multiplication of charges in light of the fact both
convicted offenses occurred within mere seconds of each other. Appellant faced
a total confinement time of 27 years; he asserts that had such a motion been
filed and granted, his maximum sentence to confinement would have been lim-
ited to 20 years. Appellant argues, “There [was] no strategic or tactical decision
to not even try to lower the sentence.”
Under R.C.M. 307(c)(4), “[w]hat is substantially one transaction should not
be made the basis for an unreasonable multiplication of charges against one
person.” To determine whether charges have been unreasonably multiplied,
judges assess such factors as whether the specifications are aimed at distinct
criminal acts, whether they exaggerate or misrepresent the charged criminal-
ity, whether they unreasonably increase an accused’s punitive exposure, and
whether the prosecutor overreached in drafting the charges. United States v.
Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). It is within a military judge’s discre-
tion to merge unreasonably multiplied charges for sentencing purposes. See,
e.g., United States v. Campbell, 71 M.J. 19, 25 (C.A.A.F. 2012).
In Appellant’s case, he faced a maximum sentence to confinement of 20
years for the aggravated sexual contact offense (touching Ms. SW’s groin) and
7 years for the abusive sexual contact offense (causing Ms. SW to touch his
penis). 2016 MCM, pt. IV, ¶¶ 45.e.(3), (4). Arguably, these two offenses were
part of Appellant’s singular “transaction” of assaulting Ms. SW, but Appellant
has failed to show how a reduction in his maximum sentence from 27 to 20
years would have resulted in a different adjudged sentence. Trial counsel told
the members Appellant deserved “no less than seven years confinement and a
dishonorable discharge,” and the members adjudged three years, a dishonora-
ble discharge, and reduction to the grade of E-1. Thus, Appellant was sen-
tenced to a period of confinement well below either the 20-year sentence ceiling
he would have faced after a favorable unreasonable multiplication ruling or
trial counsel’s recommended sentence. Appellant has not offered any explana-
tion as to how a 20-year ceiling would have had any beneficial impact on Ap-
pellant’s ultimate sentence, and we will not strain to contrive one for him. In
failing to demonstrate any prejudice, Appellant’s claim of error warrants no
relief.
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United States v. Westcott, No. ACM 39936
h. Mr. BB’s Testimony
Appellant argues his counsel were ineffective by eliciting Mr. BB’s opinion
in presentencing proceedings that Appellant would not hurt anybody, an opin-
ion which permitted the Government to inquire about an allegation that Ap-
pellant had been accused of sexually assaulting his ex-wife.
In their declarations, all three of Appellant’s trial defense counsel assert
Mr. BB’s statement caught them by surprise, as they had spent time preparing
him for his testimony. Mr. JO says he specifically told Mr. BB not to attempt
to impeach the verdict.
We note that Mr. BB’s statement about how Appellant would not hurt an-
ybody came at the tail end of a longer narrative response to the open-ended
question, “can you describe [Appellant] for the panel?” After Mr. BB made this
comment, trial defense counsel moved on to other topics, such as whether Mr.
BB would help Appellant find employment. Trial defense counsel were aware
of the ex-wife’s allegation, as it was one factor they considered when advising
Appellant on the risks of him testifying. Thus, the record lends credence to the
post-trial declarations that trial defense counsel did not purposely elicit this
opinion.
Mr. BB’s overall testimony was favorable to Appellant, portraying him as
being a good friend and a good father, so the fact the Defense elected to call
him as a witness for sentencing amounts to an unremarkable strategic choice.
In questioning Mr. BB, Ms. MK could have attempted to ask more specific
questions to constrain his answers, but that is not a degree of perfection we
will impose upon counsel in our hindsight review of her performance. Based
upon on all three trial defense counsel’s declarations, we are convinced they
made an informed and calculated decision to present rehabilitation-potential
testimony in the hopes of obtaining a favorable sentence for Appellant. Mr.
BB—a lay witness—offered an opinion he likely believed would be helpful to
Appellant, not appreciating the consequences that would erupt. We see nothing
to indicate trial defense counsel purposely elicited this particular aspect of his
testimony, and we harbor no delusions that counsel can precisely predict how
a witness will answer any given question, no matter how extensive their trial
preparation. As with all witnesses, trial defense counsel took a risk by calling
Mr. BB in the hopes of casting Appellant in a favorable light. This is precisely
the sort of tactical decision we give great deference to, and we will not second-
guess it on appeal. See Mazza, 67 M.J. at 475.
i. Victim’s Unsworn Statement
Ms. SW intended to provide an unsworn statement to the court-martial.
After reviewing a written copy of her proposed statement, Mr. JO objected on
the basis that it referred to offenses for which Appellant was acquitted (i.e.,
39
United States v. Westcott, No. ACM 39936
grabbing her neck on one occasion and sexually assaulting her on divers occa-
sions). Specifically, the Defense objected to the following line: “I was uncertain
if anyone would even listen to me or if anyone would take me seriously or if
they would just ignore me the way [Appellant] did whenever I told him no or
stop.” Trial defense counsel’s position was that Ms. SW was referring to “mul-
tiple encounters” of which Appellant was acquitted.
Trial counsel briefly argued Appellant had been convicted of committing
abusive sexual contact on Ms. SW while she was saying “no” and “stop,” and
thus Ms. SW’s references to abuse would fairly include the offenses of which
he was convicted. Prior to obtaining a ruling from the military judge, however,
Mr. JO announced, “Sir, I withdraw. I withdraw. If the [G]overnment—[i]f they
don’t want to modify it, that’s fine with me. I withdraw.”
Appellant argues his counsel were ineffective by withdrawing their objec-
tion to Ms. SW’s victim unsworn statement, effectively waiving the matter on
appeal. Appellant asserts there was no strategic or tactical reason not to obtain
a ruling from the military judge. In his declaration, Mr. JO explains he with-
drew the objection out of concern that Ms. SW might take the opportunity to
write “a much more powerful unsworn” than the “benign” one before the court.
We have carefully considered Ms. SW’s relatively short statement, and we con-
clude that while one could interpret the statement to refer to abuse throughout
her relationship with Appellant, one could also read it to simply pertain to the
events of 23 May 2018. Trial defense counsel’s tactical decision to withdraw
the Defense’s objection in order to circumvent the risk that Ms. SW would add
more prejudicial information was not unreasonable, and we decline to find trial
defense counsel ineffective. Even if we had concluded Appellant’s counsel were
ineffective, we would not find any likelihood Appellant was prejudiced in light
of the fact the members who heard the unsworn statement had also heard Ms.
SW’s testimony about abuse throughout the relationship. By acquitting Appel-
lant of that conduct, the members had already determined that it had not been
proven beyond a reasonable doubt, so it is extremely unlikely they would be
influenced by Ms. SW’s vague allusions to the conduct in an unsworn state-
ment. Moreover, the military judge instructed the members that Appellant was
“to be sentenced only for the offenses of which he [had] been found guilty,” and
we presume the members followed the military judge’s instructions. See Tay-
lor, 53 M.J. at 198.
j. Conclusion on Ineffective Assistance Claims
We evaluate trial defense counsel’s performance not by the success of their
strategy, “but rather whether counsel made . . . objectively reasonable choice[s]
in strategy from the alternatives available at the [trial].” United States v.
Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001) (quoting United States v. Hughes, 48
M.J. 700, 718 (A.F. Ct. Crim. App. 1998) (additional citation omitted)). Even
40
United States v. Westcott, No. ACM 39936
when an appellant overcomes the strong presumption that counsel’s perfor-
mance was within the wide range of reasonable professional assistance, relief
is only available when the appellant can establish a reasonable probability of
a different outcome had the ineffective assistance not occurred. Appellant has
failed to establish that relief is warranted in his case under the theory of inef-
fective assistance of counsel.
G. Government Findings Argument
Appellant contends trial counsel’s closing argument improperly commented
on his right to remain silent and that we should set aside the findings and
sentence of his court-martial to remedy the error. We disagree and decline to
grant Appellant’s requested relief.
1. Additional Background
During his closing argument, circuit trial counsel told the members that in
order to find Appellant had established a mistake of fact defense, they had to
conclude Appellant was actually mistaken and that his mistake was reasona-
ble. Trial counsel described the “actually mistaken” element of the defense as
the mistake having “to have existed in the mind of the accused. Meaning, it
had to actually be there. He had to actually think that she was consenting. It
had to be an honest mistake.” From this proposition, trial counsel argued,
Now, let’s turn to that first piece there. Let’s talk about “honest.”
“It’s not rape. We are married.” “It’s not rape. We’re married.” Is
someone who says that—Is someone who says that mistaken
about the consent of the other person or does that indicate they
have knowledge of what they’re doing; they have knowledge that
the other person is not consenting[?] They have knowledge of it
and they’re talking about it, they’re categorizing it, they’re clas-
sifying it as a rape as something that is against the law. Is any
mistake of fact honest when someone says those words? Okay.
We can’t get into his mind unless he tells us what’s in his mind.
And he told you—
At that point, trial defense counsel asked for an Article 39(a), UCMJ, hear-
ing in order to move for a mistrial. In this hearing and outside the members’
presence, trial defense counsel argued that the comment “unless he tells us”
was an improper comment on Appellant’s right to remain silent. Circuit trial
counsel countered that he was referring to what Appellant had said to Ms. SW
during the charged offenses. The military judge denied the motion, concluding
that trial counsel was “specifically talking about the statement that was al-
ready into evidence, that it’s not rape if you are married, and using that to
demonstrate what was arguably in the accused’s mind at the time he commit-
ted the offenses.” The military judge said circuit trial counsel’s final comment,
41
United States v. Westcott, No. ACM 39936
“[h]e told you,” further placed the argument in context. Nonetheless, the mili-
tary judge granted the Defense’s request for a curative instruction.
When the members returned to the courtroom, the military judge advised
them:
Members of the Court, you have heard in the [G]overnment’s
closing argument that one will not know what is in [Appellant’s]
mind unless he tells us. As you have witnessed, [Appellant] has
elected not to testify. You have taken an oath, and along with
such oath, you have agreed not to consider the fact that [Appel-
lant] did not testify. You must follow such an oath. The [G]overn-
ment is also prohibited from commenting on [Appellant] exercis-
ing this right.
Circuit trial counsel then resumed his argument by saying, “The mistake
of fact as to consent must be honest. Is it an honest mistake if the accused says,
it’s not rape if you’re married? Honest.” From there, circuit trial counsel moved
on to a discussion about whether such a mistake could be reasonable.
2. Law
Whether a trial counsel’s comments in closing argument improperly refer-
ence an accused’s constitutional right to remain silent is a question of law we
review de novo. See United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011)
(citing United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007)).
“It is black letter law that a trial counsel may not comment directly, indi-
rectly, or by innuendo, on the fact that an accused did not testify in his de-
fense.” United States v. Mobley, 31 M.J. 273, 279 (C.M.A. 1990) (citing Griffin
v. California, 380 U.S. 609 (1965)). “Regardless of whether there was an objec-
tion or not, ‘[i]n the context of a constitutional error, the burden is on the Gov-
ernment to establish that the comments were harmless beyond a reasonable
doubt.’” Flores, 69 M.J. at 369 (alteration in original) (quoting United States v.
Carter, 61 M.J. 30, 35 (C.A.A.F. 2005)).
We examine prosecutorial comments “in light of [their] context within the
entire court-martial.” Carter, 61 M.J. at 33 (citation omitted). “[W]hether [an]
error is harmless beyond a reasonable doubt ‘will depend on whether there is
a reasonable possibility that the evidence [or error] complained of might have
contributed to the conviction.’” United States v. Paige, 67 M.J. 442, 451
(C.A.A.F. 2009) (alteration in original) (quoting Moran, 65 M.J. at 187). To find
that an error did not contribute to the conviction is “to find that error unim-
portant in relation to everything else the jury considered on the issue in ques-
tion, as revealed in the record.” Moran, 65 M.J. at 187 (quoting Yates v. Evatt,
400 U.S. 391, 403 (1991), overruled on other grounds by Estelle v. McGuire, 502
U.S. 62, 72 n.4 (1991)).
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United States v. Westcott, No. ACM 39936
3. Analysis
In looking at trial counsel’s argument, and the context of the entire court-
martial, we find no error. When trial counsel made this comment, he was ad-
dressing Appellant’s defense of mistake of fact and how Appellant’s comments
to Ms. SW provided evidence of Appellant’s mindset at the time of these of-
fenses. This was a proper argument which did not refer to Appellant’s decision
not to testify, either explicitly or implicitly.
Even if we were to conclude the argument amounted to constitutional error,
we would find such error to be harmless. In United States v. Chisum, the CAAF
explained that a “constitutional error is harmless when it appears beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.” 77 M.J. 176, 179 (C.A.A.F. 2018) (quoting Mitchell v. Esparza, 540
U.S. 12, 17–18 (2003)). Here, trial counsel’s commentary on whether Appellant
was honestly mistaken was brief and narrowly tailored to one prong of the de-
fense of mistake of fact. The military judge further provided the members a
curative instruction in the middle of trial counsel’s argument. We presume
court members follow instructions by a military judge, unless we have evidence
to the contrary. Taylor, 53 M.J. at 198. Finally, the members returned a mixed
verdict, acquitting Appellant of some offenses while convicting him of others—
a strong indication the members arrived at their verdict unimpacted by any
belief Appellant’s decision not to testify should be held against him. We con-
clude that the members would have reached the same verdict even in the ab-
sence of circuit trial counsel’s “unless he tells us” comment. Appellant is enti-
tled to no relief on this point, even if we were to conclude the Government’s
argument constituted error.
H. Sentence Appropriateness
Appellant contends his sentence is inappropriately severe. He argues his
convictions arose from “a matter of seconds” and was “not nearly as bad or
violent as other crimes that yield the same type of punishment.” He theorizes
his sentence was as high as it was because the Government painted him as a
serial offender through the question put to Mr. BB about Appellant’s ex-wife’s
allegation Appellant had sexually assaulted her. He asks us to reduce his sen-
tence to confinement, but we decline to do so.
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)). Our authority to determine sentence appropriateness “re-
flects the unique history and attributes of the military justice system, [and]
includes but is not limited to considerations of uniformity and evenhanded-
ness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296
43
United States v. Westcott, No. ACM 39936
(C.A.A.F. 2001) (citations omitted). We may affirm only as much of the sen-
tence as we find correct in law and fact and determine should be approved on
the basis of the entire record. Article 66(d), UCMJ, 10 U.S.C. § 866(d). “We
assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offense[s], the appellant’s record of service, and
all matters contained in the record of trial.” United States v. Anderson, 67 M.J.
703, 705 (A.F. Ct. Crim. App. 2009) (citations omitted). Although we have great
discretion to determine whether a sentence is appropriate, we have no power
to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (cita-
tion omitted).
2. Analysis
Appellant faced a maximum sentence of a dishonorable discharge, confine-
ment for 27 years, forfeiture of all pay and allowances, reduction to the grade
of E-1, and a reprimand. 2016 MCM, pt. IV, ¶¶ 45.e.(2), (3). His adjudged sen-
tence consisted of a dishonorable discharge, confinement for three years, and
reduction to the grade of E-1.
Appellant is correct that the conduct of which he was convicted spanned a
relatively short timeframe. While his offenses may not have lasted a long time,
Appellant used his physical strength to overpower his wife’s physical and ver-
bal resistance in order to molest her and force her to touch his penis.
Appellant suggests his sentence was influenced by the question that Mr.
BB was asked, but the military judge instructed the members as to the proper
use of that information, specifically advising them that “there is no evidence
that [Appellant] assaulted his ex-wife.” Appellant has not pointed to anything
in the record that would lead us to conclude the members failed to follow that
instruction or that they improperly inflated Appellant’s sentence because of it.
We have considered Appellant, the nature and seriousness of the offenses,
his long record of military service, the lack of any previously documented mis-
conduct in his personnel records, and all matters he submitted in his case in
extenuation, mitigation, and clemency. We conclude his sentence is not inap-
propriately severe.
I. Completeness of the Record
Although not raised by Appellant, we consider whether the record is sub-
stantially complete in the face of a missing appellate exhibit, the military
judge’s post-trial ruling regarding his omission of the definition of consent in
his findings instructions.
1. Additional Background
In late May 2020, the military judge issued his ruling pertaining to the
post-trial Article 39(a), UCMJ, hearing. Both parties, in their submissions to
44
United States v. Westcott, No. ACM 39936
this court related to this appeal, referred to this ruling as Appellate Exhibit
XXXVIII and commented on the substance of the ruling. The ruling, however,
was not included in the record of trial docketed with this court.
We issued the Government an order to show cause why we should not re-
mand the record for correction. In response, the Government submitted a dec-
laration from the circuit trial counsel who participated in Appellant’s court-
martial. This circuit trial counsel asserts that once the Government received
our show-cause order, he located the military judge’s email with the ruling at-
tached, and he attached the ruling to his declaration. The ruling is unsigned
and has no appellate exhibit number on it. We granted the Government’s mo-
tion to attach the declaration. The Government asks us not to remand the case
or grant other relief; Appellant, on the other hand, submits that the only way
to remedy the defective record is to remand it for correction. Appellant con-
cedes the ruling attached to the declaration appears to be “identical” to the one
in the possession of his appellate counsel.
The military judge’s ruling concludes Appellant waived the error with re-
spect to the military judge’s consent instructions, and if the error was simply
forfeited, Appellant was not prejudiced. The military judge generally concluded
that his instructions otherwise addressed the matter of consent and that, in
any event, the term “consent” is generally known and further definition was
not needed. The ruling briefly notes that whether trial defense counsel were
ineffective was “outside the purview” of the military judge, and the ruling con-
tains no substantive discussion of the matter.
2. Law
We review the question of whether a record of trial is complete de novo.
United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000). A complete record of
trial includes all appellate exhibits. R.C.M. 1112(b)(6); R.C.M. 1112(d)(2). An
incomplete or defective record of trial may be returned to the military judge for
correction. R.C.M. 1112(d)(2).
When an omission from a record of trial is substantial, such omission gives
rise to a presumption of prejudice which the Government must rebut. United
States v. Harrow, 62 M.J. 649, 654 (A.F. Ct. Crim. App. 2006) (citation omit-
ted), aff’d, 65 M.J. 190 (C.A.A.F. 2007). Insubstantial omissions, however, do
not give rise to such a presumption “or affect that record's characterization as
a complete one.” United States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2000). We
approach the question of what constitutes a substantial omission on a case-by-
case basis. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999) (citation
omitted).
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United States v. Westcott, No. ACM 39936
3. Analysis
We considered the circuit trial counsel’s declaration and its attachment to
resolve this issue which was raised by the record. See Jessie, 79 M.J. at 444.
Although we have the authority to return the record to the military judge for
correction under R.C.M. 1112(d)(2), we decline to do so because even if the ex-
hibit’s omission is substantial, we conclude Appellant has not been prejudiced
by the exhibit’s omission.26 We arrive at this determination because we have
already concluded Appellant waived the error with respect to the military
judge’s findings instructions. Except for a passing reference to Appellant’s in-
effective assistance claims, the military judge’s ruling exclusively addresses
the question of whether he erred in providing the instructions he did. Because
Appellant waived this issue, however, the military judge’s post-trial ruling on
it adds nothing material to the record. Similarly, because the ruling provides
virtually no discussion of the ineffective assistance claim—a claim which we
have considered—the ruling has no impact on that issue. Appellant acknowl-
edges he had an apparently “identical” copy of the ruling when he submitted
his assignment of errors, so Appellant has not been deprived of any of the in-
formation in the military judge’s ruling. As such, we conclude that even if we
impose a presumption of prejudice, that presumption has been effectively re-
butted by virtue of our review of the declaration and ruling submitted by the
Government.
J. Post-Trial Delay
Although not raised by Appellant, we consider whether he has been de-
prived of his due process right to speedy post-trial and appellate review.
Appellant’s court-martial concluded on 16 January 2020, and the military
judge entered judgment 134 days later, on 29 May 2020. The record of trial was
not docketed with this court until 10 July 2020, which was 176 days after Ap-
pellant was sentenced. On 3 February 2022, Appellant demanded speedy ap-
pellate review. We are issuing our opinion more than 20 months after his case
was docketed with us.
1. Law
“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) (first citing United States v. Rodriguez, 60
26 That we granted the Government’s motion to attach does not change the fact that
the ruling is still missing from the record of trial. Instead, we use the circuit trial coun-
sel’s declaration and its attached ruling in order to perform our responsibilities under
Article 66, UCMJ, 10 U.S.C. § 866. See, e.g., United States v. King, No. ACM 39583,
2021 CCA LEXIS 415, at *29–30 (A.F. Ct. Crim. App. 16 Aug. 2021) (unpub. op.).
46
United States v. Westcott, No. ACM 39936
M.J. 239, 246 (C.A.A.F. 2004); and then citing United States v. Cooper, 58 M.J.
54, 58 (C.A.A.F. 2003)). In Moreno, the CAAF established a presumption of
facially unreasonable delay when the convening authority does not take action
within 120 days of sentencing, when the case is not docketed with the Court of
Criminal Appeals within 30 days of convening authority action, or when the
Court of Criminal Appeals does not render a decision within 18 months of dock-
eting. 63 M.J. at 142. In United States v. Livak, 80 M.J. 631, 633 (A.F. Ct.
Crim. App. 2020), this court established an aggregated 150-day standard for
facially unreasonable delay from sentencing to docketing for cases referred to
trial on or after 1 January 2019, in light of the new post-trial processing pro-
cedures that went into effect on that date.
Where there is such a delay, we examine the four factors set forth in Barker
v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of his right to a timely review; and
(4) prejudice to the appellant. Moreno, 63 M.J. at 135 (first citing United States
v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); and then citing Toohey v. United
States, 60 M.J. 100, 102 (C.A.A.F. 2004)). “No single factor is required for find-
ing a due process violation and the absence of a given factor will not prevent
such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533).
Where an appellant has not shown prejudice from the delay, there is no due
process violation unless the delay is “so egregious that tolerating it would ad-
versely affect the public’s perception of the fairness and integrity of the mili-
tary 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 prejudice for pur-
poses of an Appellant’s due process right to timely post-trial review: (1) oppres-
sive incarceration; (2) anxiety and concern; and (3) impairment of the appel-
lant’s grounds for appeal or ability to present a defense at a rehearing. 63 M.J.
at 138–39 (citations omitted).
2. Analysis
Two periods of delay are facially unreasonable in Appellant’s case under
Moreno—the period from sentencing to docketing, and the period from docket-
ing to the release of our opinion. The first period’s standard is 150 days, and
176 days elapsed here. The second period’s standard is 18 months, and we ex-
ceeded that standard by just over two months.
a. Sentence to Docketing
The period between sentencing and docketing exceeded the standard by 26
days—just under four weeks. Because Appellant did not raise this issue, the
record is not completely developed with respect to the reasons for this delay.
However, we note Appellant’s case did involve a post-trial hearing on 11 May
2020, or 116 days after sentencing. This hearing was delayed by approximately
47
United States v. Westcott, No. ACM 39936
two months due to logistical issues related to the COVID-19 pandemic. The
military judge issued his ruling and entered judgment in the case on 29 May
2020, or 134 days after sentencing. Once judgment was entered, the Govern-
ment took six weeks to docket the case with our court, pushing the total period
from sentencing to docketing to 176 days.
Appellant did not assert his right to speedy post-trial processing, and he
has not claimed the delay during this period has prejudiced any of the interests
cited by the CAAF in Moreno. Appellant has not alleged he has suffered from
oppressive incarceration; he has not asked for a rehearing and we are not
granting him one on our own accord; and he has not asserted any grounds for
appeal have been impaired. From our review of the record, it appears that one
primary reason for the lengthy post-trial processing was the need to convene a
post-trial hearing to address the matter of the military judge’s instructions.
The scheduling of this hearing was complicated by the pandemic—a matter
plainly outside the control of either Appellant or the Government. The hearing
did not result in any relief to Appellant in terms of his sentence, and we there-
fore conclude he has not been prejudiced by the delay between his sentencing
and the docketing of his case. We have also considered whether—in the absence
of any cognizable prejudice—the delay in this case was so egregious as to ad-
versely affect the public’s perception of the fairness and integrity of the mili-
tary justice system, and thereby amount to a violation of Appellant’s due pro-
cess rights. Although we are at a loss to explain why it took the Government
six weeks to simply docket the case with this court, we nevertheless conclude
this delay was not so egregious as to warrant relief.
b. Docketing to Opinion
In producing this opinion, we exceeded the 18-month standard by over two
months. While this total period lasted over 600 days, 234 of those days—just
over seven and a half months—are attributed to Appellant filing his assign-
ments of error after he received five enlargements of time over the Govern-
ment’s objections. Once Appellant filed his assignments, which included alle-
gations of ineffective assistance of counsel, we ordered each of his trial defense
counsel to submit declarations in response. After these declarations were filed,
the Government submitted its answer to Appellant’s assignments of error, and
Appellant filed a subsequent reply. From Appellant’s initial brief to his reply,
71 days passed, bringing the total time elapsed since docketing to 305 days—
just over ten months. We took over ten months to produce our opinion, during
which time we issued a show-cause order to the Government after we identified
a missing appellate exhibit. Although the period from docketing to the release
of this opinion exceeded the 18-month threshold for facially unreasonable de-
lay, this period was exceeded by just over two months. Appellant raised a total
48
United States v. Westcott, No. ACM 39936
of twelve issues for our consideration, resulting in a lengthy and divided opin-
ion from our court. For the reasons noted above related to the period of post-
trial processing, we conclude there is no evidence demonstrating prejudice war-
ranting relief for the period between docketing and this opinion, nor do we see
any indication that the delay in our review of his court-martial rose to the de-
gree that it would adversely affect the public’s perception of the military justice
system.
c. Relief Under Article 66(d), UCMJ
Recognizing our authority under Article 66(d), UCMJ, we have also consid-
ered whether relief for excessive post-trial delay is appropriate even in the ab-
sence of a due process violation. See United States v. Tardif, 57 M.J. 219, 225
(C.A.A.F. 2002). After considering the factors enumerated in United States v.
Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), and the particular facts presented by Appellant’s case, we conclude it is
not.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
JOHNSON, Chief Judge (concurring in part and in the result):
I generally concur with the lead opinion, including the result, with one ex-
ception. With respect to Appellant’s argument that a unanimous verdict of
guilty is constitutionally required, the opinion notes Appellant cannot demon-
strate that he was convicted by a less-than-unanimous vote of the court mem-
bers. The implication of this observation is that, assuming arguendo the jury
unanimity requirement did apply to courts-martial, Appellant would be re-
quired to make such a demonstration in order to secure relief. The Rules for
Courts-Martial generally forbid polling court members to determine their
votes, and their deliberations are—with very limited exceptions—generally
privileged under the Military Rules of Evidence. See Rules for Courts-Martial
922(e), 1007(d); Mil. R. Evid. 509, 606 (Manual for Courts-Martial, United
States (2019 ed.)). To the extent the lead opinion implies that the Rules for
Courts-Martial or Military Rules of Evidence might effectively interfere with
the protection of a constitutional right, I respectfully disagree.
MEGINLEY, Judge, (dissenting in part and in the result):
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United States v. Westcott, No. ACM 39936
I agree with the court’s finding that Specification 2 of Charge I (abusive
sexual contact) is legally and factually sufficient. However, for the reasons
stated below, I conclude Specification 1 of Charge I (aggravated sexual contact)
is factually insufficient. Moreover, I find that by being denied the right to a
unanimous verdict, Appellant was denied equal protection under the law. Ac-
cordingly, I would dismiss Charge I and its specifications with prejudice.
A. Factual Sufficiency and Ineffective Assistance of Counsel Relating
to Specification 1 of Charge I
In reviewing the entire record, I found Ms. SW to be very credible. I have
little doubt that Appellant grabbed her hand and placed it on his penis, nor do
I have much doubt that Appellant touched Ms. SW’s vagina over her clothing.
Also, there was virtually no evidence to reasonably suggest Ms. SW consented
to Appellant’s acts on 23 May 2018, or that she fabricated Appellant’s crimes
for financial gain.
The issue I see is not with Ms. SW, but with the way the Government
charged the allegation in Specification 1 of Charge I—that Appellant touched
Ms. SW’s groin with his hand. From Ms. SW’s statement to local authorities
and then later during her in-court testimony, Ms. SW never said Appellant
touched her groin, as Appellant was charged. Perhaps Appellant touched Ms.
SW in her groin as he was positioning himself on top of her, trying to pull her
shorts down, and touching her vaginal region—especially given the bruising
on her legs, which was indicative of that struggle. Ms. SW described how Ap-
pellant “hooked his fingers underneath [her] shorts and started moving his
hands down towards [her] vagina.” She also testified that Appellant “got down
pretty far,” in the context of trying to pull her shorts off, and that he was touch-
ing her “close to the outside of [her] vagina.” And of course, she testified to the
bruising on her legs. Yet notwithstanding this testimony, the majority does not
know—nor did the members know—if Appellant actually touched her groin.
At first glance, this appears to be a possible oversight by trial counsel in
their questioning of Ms. SW. Ms. SW was the Government’s witness; the Gov-
ernment presumably discussed the case multiple times with Ms. SW and her
special victims’ counsel, charged the case based on the facts Ms. SW presented,
and referred a charge to trial alleging that Appellant touched Ms. SW’s groin.
In order to try to glean the Government’s intention, I reviewed of some of the
pretrial papers—including the Hoke County Sherriff’s Office report, the Air
Force Office of Special Investigations (AFOSI) Report of Investigation, and the
50
United States v. Westcott, No. ACM 39936
Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832,1 Prelim-
inary Hearing Officer (PHO) report. However, none of these of these documents
contain evidence from Ms. SW stating that Appellant touched her in the groin
area; the focus is on the fact that Appellant touched her in the vaginal area. In
fact, in my review of the record, the only time a “groin” appears to be mentioned
is in a document within the Article 32, UCMJ, PHO report, where Ms. SW
stated she slapped Appellant between the legs (the Hoke County report states
she hit him in the genitals). Based on the material available, it appears the
Government may have adopted an extremely broad interpretation of what con-
stitutes the groin—which, based on trial counsel’s questioning of Ms. SW, in-
cluded Ms. SW’s vagina.
As the majority notes, our sister services have addressed this nuance. In
United States v. McDonald, the United States Navy-Marine Corps Court of
Criminal Appeals (NMCCA) determined that “groin” and “penis” are not syn-
onymous, as the “groin” is “[t]he groove, and the part of the body around it,
formed by the junction of the thigh with the abdomen, on either side.” 78 M.J.
669, 680 (N.M. Ct. Crim. App. 2018) (alteration in original).2 The NMCCA fur-
ther noted that “groin” and “genitalia” are listed separately in the definition of
“sexual contact” in Article 120, UCMJ, 10 U.S.C. § 920. McDonald, 78 M.J. at
680. In reference to an opinion by one of our sister service courts, the majority
in this case notes,
[T]he Army Court of Criminal Appeals [(ACCA)] concluded that
the trial judge had failed to elicit a sufficient factual basis to
support the appellant’s guilty plea where he was charged with
touching the victim’s genitals but explained in his providence in-
quiry that he had touched the victim on her pubic mound, just
above her genitals. The court concluded that substituting “groin”
for the charged “genitals” during appellate review would amount
to a material and possibly fatal variance under the theory that
“‘genitals’ is not the same as ‘groin’ or ‘groin area.’”
Ante, slip op. at 13 (quoting United States v. Perez, ARMY 20140117, 2016 CCA
LEXIS 131, at *5 (A. Ct. Crim. App. 29 Feb. 2016) (unpub. op.).
1 All references in this dissent to the punitive articles of the Uniform Code of Military
Justice (UCMJ) are to the Manual for Courts-Martial, United States (2016 ed.). All
other references to the UCMJ, Military Rules of Evidence, and Rules for Courts-Mar-
tial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.)
2 The court cited J.E. SCHMIDT, M.D., ATTORNEY’S DICTIONARY OF MEDICINE AND WORD
FINDER (Release No. 52 Sep. 2018).
51
United States v. Westcott, No. ACM 39936
The approach taken by our sister court makes sense, given the language of
Article 120(g)(2)(A), UCMJ, 10 U.S.C. § 920(g)(2)(A), Manual for Courts-Mar-
tial, United States (2016 ed.) (2016 MCM), in which “sexual contact” is defined
as “touching, or causing another person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any per-
son . . . .” “Groin” is not defined, nor is there any suggestion that the groin
encompasses every body part from crease to crease. Significantly, genitalia and
groin are listed separately.
Trial counsel in Appellant’s case may have made a similar error as counsel
in McDonald and Perez. In his closing argument, trial counsel stated:
But she doesn’t give up, she keeps fighting. And with his other
hand, he tries to pull her thigh[s] apart because she’s trying to
keep them together to keep him from sticking his hands between
her legs on her vagina, in her groin. And so he grabs her left
thigh and he yanks it, he tries to push it. He tries to overpower
her. And they’re struggling, they’re fighting back and forth. And
he’s able to touch her over the clothes in her groin area over her
vagina.
(Emphases added).
Trial counsel’s argument takes some liberty with Ms. SW’s actual testi-
mony, but without Ms. SW describing what happened in more detail, the mem-
bers were left with making assumptions that Appellant’s touching of Ms. SW’s
vaginal area was the same as touching her groin. The majority opinion is com-
fortable making that determination as well. I am not. I respectfully decline to
say that the touching of Ms. SW’s vagina, or close to the outside of her vagina,
constitutes the groin. Any such suggestion that the groin can be expansively
read to include the groinal area is a legal fiction under the 2016 MCM. The
Government controls the charge sheet, see United States v. Reese, 76 M.J. 297,
301 (C.A.A.F. 2017), and could have alleged vagina, inner thigh, waist, and
groin, all in the same specification. It chose not to. Thus, I can accept the ma-
jority’s rationale in finding Specification 1 of Charge I legally sufficient—as
articulated, for example, ante, slip. op. at 14 n.9. However, in holding the Gov-
ernment to its burden, I find this specification to be factually insufficient, as
there simply was not enough evidence provided to the court-martial.
There is significant interplay between the Government’s charging decision
on Specification 1 of Charge I and two of Appellant’s allegations of ineffective
assistance of counsel. Assuming there was enough evidence to support a con-
viction, this court should nonetheless set aside the specification for ineffective
assistance of counsel (IAC). To be clear, neither at trial, nor in his appeal, have
52
United States v. Westcott, No. ACM 39936
any of Appellant’s counsel (trial or appellate) identified this issue, nor did Gov-
ernment counsel. Appellant alleged 12 instances of IAC—some of which are
legitimate issues—but the issues worth reviewing more closely are the failure
to adequately cross-examine Ms. SW and the deficient closing argument.
If trial defense counsel knew that trial counsel did not elicit enough testi-
mony or present enough evidence to support the charge that Appellant touched
Ms. SW’s groin, the decision to limit Ms. SW’s cross-examination to the pene-
trative offense could have been brilliant and worth a risk. The trade-off is that
the panel would have to know that the Government’s evidence was lacking—
this fact is something that one would not reasonably suspect a panel to figure
on its own. Yet, defense counsel failed to argue that the evidence was deficient.
In what can be described as a perplexing and disconcerting closing argument,
one could argue the Defense essentially conceded guilt to the 23 May 2018 in-
cident, not saying one word in defense of Appellant’s actions. In other words,
had someone read the Defense’s closing argument in a vacuum, that individual
would not have known Appellant was charged with other crimes. Appellant’s
defense counsel latched onto consent and reasonable mistake of fact—which
appears to have not existed for the 23 May 2018 incident—and Ms. SW’s pos-
sible pecuniary interests, when the charging and evidence were flawed. There
is nothing in the record to suggest they were not on notice as to what they were
defending; in other words, they knew what they had to defend.
This is not to say Appellant would have been acquitted of both specifica-
tions relating to the 23 May 2018 incidents. However, when applying the test
from United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011), first, there is no
reasonable explanation for counsel’s actions—in fact, the explanation for this
argument as articulated by Ms. MK (Appellant’s civilian trial defense counsel),
to be quite blunt, appears to be a significant blunder:
I made the closing I believed appropriate for the evidence. Gov-
ernment counsel had made an overly long and technical argu-
ment with extensive [P]ower[P]oint slides and the panel ap-
peared fatigued afterwards. In my experience, military panels
prefer shorter, concise arguments. Merely because counsel does
not comment on a particular piece of evidence does not foreclose
it from consideration by the panel.
In this case, there is a reasonable probability, if not high probability that a
technical argument would have earned an acquittal on this specification. Sec-
ond, the level of advocacy fell measurably below the performance ordinarily
expected of fallible lawyers. See Gooch, 69 M.J. at 362. There may have been a
strategy behind a brief closing argument, but few criminal law litigators would
adhere to this tactic. Third, I firmly believe there is a reasonable probability
that there would have been a different result but for this misstep. See id. The
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United States v. Westcott, No. ACM 39936
military judge did not give a definition of groin. There were no instructions on
exceptions, substitutions, or variances. We can surmise that at least three
members voted to acquit Appellant of the penetrative offense. Had the Defense
challenged what constituted the “groin” in closing, there is a reasonable prob-
ability that there would have been a review of the instructions, a judicial defi-
nition of “the groin,” a revamped rebuttal argument by trial counsel, or maybe
even the possibility of a motion pursuant to Rule for Courts-Martial (R.C.M.)
917.3 The Defense’s failure to raise this glaring issue is enough of a “probability
sufficient to undermine confidence in the outcome,” and for me, there exists “a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” See United States v. Datavs, 71 M.J. 420,
424 (C.A.A.F. 2012) (internal quotation marks and citations omitted).
Finally, this issue matters because given that there was a reasonable prob-
ability that there would have been a different result, the sentencing landscape
would have dramatically changed. Appellant’s maximum confinement time
would have been reduced from 27 years to 7 years. It is highly unlikely that
Appellant would have received three years for forcing his soon-to-be ex-wife to
grab his penis as he was coming out of the shower.4 I simply do not find Appel-
lant’s trial defense counsel’s strategy to be reasonable, and I would find them
ineffective in defending this specification.
3 While “it is a well-known principle that ‘[w]ords generally known and in universal
use do not need judicial definition,’” United States v. Bailey, 77 M.J. 11, 15 (C.A.A.F.
2017) (alteration in original) (quoting United States v. Nelson, 53 M.J. 319, 321
(C.A.A.F. 2000)), note 10 of the majority opinion, supra, indicates that the use of the
word groin is open to interpretation.
4 I also believe Appellant’s sentence to three years confinement is, on its face, inappro-
priately severe; however, such a sentence is not surprising given trial defense counsel’s
grave tactical error in allowing Mr. BB to testify, which opened the door to the “have
you heard question” that Appellant’s ex-wife had also accused Appellant of sexual as-
sault. Specially, the panel asked the military judge, “Is it possible for the panel to learn
more of the allegations [Appellant’s] ex-wife made against him, specifically the nature
of the claims in any findings related to them?” I have no doubt that the “have you heard
question,” related to an ex-wife, about an allegation that may have occurred in 2012,
led to an increased sentence. Further, the military judge provided no meaningful ex-
planation supporting his Mil. R. Evid. 403 balancing test other than to say, “Defense,
you opened the door to that line of questioning through the, through your direct exam-
ination and so I find under [Mil. R. Evid.] 403, solely used to test this witness’s
knowledge or opinion, that the probative value is not substantially outweighed by un-
fair prejudice given that I’m also limiting trial counsel to just the one question on it.”
Allowing this information was prejudicial and arbitrary and constituted an abuse of
discretion.
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United States v. Westcott, No. ACM 39936
B. Unanimous Verdict and Ramos v. Louisiana
Appellant claims that the United States Supreme Court’s ruling in Ramos
v. Louisiana, 140 S. Ct. 1390 (2020), which requires unanimous verdicts in fed-
eral and state criminal trials, renders his convictions invalid.5 Ramos made
clear that a unanimous jury verdict in a felony trial is a fundamental right.
Ramos does not change the long-standing precedent that the accused in a
court-martial does not have a Sixth Amendment6 right to trial by a jury of his
peers. However, numerous military court decisions have applied constitutional
rights to servicemembers—including a Fifth Amendment7 right to a fair and
impartial panel. Continuing in that tradition, I find the lack of a unanimous
panel verdict deprived Appellant of his constitutional right to equal protection
under the law—especially when a potentially nonunanimous “conviction” trig-
gers a sex offender registration requirement. I would therefore dismiss Charge
I and its specifications without prejudice.
1. Congressional Authority to Legislate on Military Affairs
The Constitution gives Congress the power to raise, support, and regulate
the armed forces under U.S. CONST. art. I, § 8 cl. 12–14.8 Under this authority,
Congress has enacted the Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 801–946a, as well as the UCMJ’s predecessors.
Article 29, UCMJ, 10 U.S.C. § 829, provides guidance for the assembly and
impaneling of court members. Article 52 of the UCMJ authorizes non-unani-
mous verdicts, stating in relevant part:
(a) IN GENERAL.—No person may be convicted of an offense in
a general or special court-martial, other than—
(1) after a plea of guilty under section 845(b) of this title (article
45(b));
(2) by a military judge in a court-martial with a military judge
alone, under section 816 of this title (article 16); or
5 Appellant raises this assignment of error pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
6 U.S. CONST. amend. VI.
7 U.S. CONST. amend. V.
8 “[U]nder the Necessary and Proper Clause, Congress can give those rules force by
imposing consequences on members of the military who disobey them.” United States
v. Kebodeaux, 570 U.S. 387, 400 (2013) (Roberts, C.J., concurring) (citing McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 416 (1819)).
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United States v. Westcott, No. ACM 39936
(3) in a court-martial with members under section 816 of this
title (article 16), by the concurrence of at least three-fourths of
the members present when the vote is taken.
Article 52(a), UCMJ, 10 U.S.C. § 852(a).
Thus, at the time of Appellant’s court-martial, concurrence of three-fourths
of the members was required to convict.9 Although Appellant’s civilian defense
counsel sought to poll the panel after the verdict, the military judge, in accord-
ance with R.C.M. 922(e), denied the request. Accordingly, there is nothing in
the record to indicate whether Appellant was convicted unanimously.
The Supreme Court traditionally grants Congress deference when it legis-
lates on military affairs. For example, in Solorio v. United States, the Supreme
Court stated:
The rights of men in the armed forces must perforce be condi-
tioned to meet certain overriding demands of discipline and
duty, and the civil courts are not the agencies which must deter-
mine the precise balance to be struck in this adjustment. The
Framers expressly entrusted that task to Congress.
9 Historically, the number was even lower. For example, in 1912, during a hearing
before the House of Representatives Committee on Military Affairs, The Judge Advo-
cate General, Major General Enoch H. Crowder, recommended to the committee in-
creasing the required vote to convict on a death-eligible offense from a simple majority
of the panel to a two-thirds’ vote. See Revision of the Articles of War: Hearing on H.R.
23628 Before the H. Comm. on Military Affairs, 62d Cong. 12, 47 (1912), available at
https://www.loc.gov/rr/frd/Military_Law/pdf/hearing_comm.pdf [hereinafter 1912
Hearing], cited in Findings and Conclusions RE: Defense Motion for Appropriate Relief
(Unanimous Verdict) at 12, United States v. Dial, general court-martial, Fifth Judicial
Circuit, Kaiserslautern, Germany (3 Jan. 2022) [hereinafter Dial Ruling]. “Between
1912 and 1948, Article of War 43 required a majority vote for conviction for all offenses
except death eligible ones (which required a two-thirds vote).” Dial Ruling at 13 (citing
H.R. REP. NO. 81-491, at 49 (28 Apr. 1949), available at https://www.loc.gov/rr/frd/Mil-
itary_Law/pdf/report_01.pdf). In 1948, via the Elston Act, Congress amended Article
of War 43 to require a two-thirds vote for all offenses other than death-eligible ones.
See Selective Service Act of 1948, S. 2655, 80th Cong. § 220 (1948), available at
https://www.loc.gov/rr/frd/Military_Law/pdf/act-1948.pdf. In the Military Justice Act
of 2016, National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328,
§§ 5001–5542 (23 Dec. 2016), Congress increased the votes required in non-capital
cases from two-thirds to three-fourths. Id. at § 5235. Reviewing the Report of the Mil-
itary Justice Review Group, it appears the only reason for the change was to “eliminate
inconsistencies and uncertainties in court-martial voting requirements by standardiz-
ing the requirements for each type of court-martial.” REPORT OF THE MILITARY JUSTICE
REVIEW GROUP 457 (22 Dec. 2015), available at https://ogc.osd.mil/Portals/99/re-
port_part1.pdf.
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United States v. Westcott, No. ACM 39936
483 U.S. 435, 440 (1987) (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)
(plurality opinion)).
The Court further noted:
Congress has primary responsibility for the delicate task of bal-
ancing the rights of [servicemembers] against the needs of the
military. As we recently reiterated, “judicial deference . . . is at
its apogee when legislative action under the congressional au-
thority to raise and support armies and make rules and regula-
tions for their governance is challenged.”
Id. at 447 (omission in original) (quoting Goldman v. Weinberger, 475 U.S. 503,
508 (1986)).
2. Sixth Amendment Right to “Jury Trial”
The Sixth Amendment to the United States Constitution states:
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which dis-
trict shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be con-
fronted with the witnesses against him; to have compulsory pro-
cess for obtaining witnesses in his favor, and to have the Assis-
tance of Counsel for his defense.
U.S. CONST. amend. VI (emphasis added).
However, “there is no Sixth Amendment right to trial by jury in courts-
martial.” United States v. Easton, 71 M.J. 168, 175 (C.A.A.F. 2012) (citations
omitted); see also United States v. McClain, 22 M.J. 124, 128 (C.M.A. 1986).
Additionally, “[a] service member has no right to have a court-martial be a jury
of his peers, a representative cross-section of the community, or randomly cho-
sen.” United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004) (citing Ex parte
Quirin, 317 U.S. 1, 39–41 (1942)) (additional citations omitted).
In 1950, the Supreme Court opined that “[t]he right to trial by jury guar-
anteed by the Sixth Amendment is not applicable to trials by courts-martial or
military commissions. . . . The constitution of courts-martial, like other matters
relating to their organization and administration, is a matter appropriate for
congressional action.” Whelchel v. McDonald, 340 U.S. 122, 127 (1950) (empha-
ses added) (citations omitted). Thus, Whelchel appears to lay to rest any ques-
tion that the Court’s rulings in Ex parte Milligan, 71 U.S. 2, 123 (1866), or
Quirin, only referred to military commissions or commission cases.
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United States v. Westcott, No. ACM 39936
Our superior court, the United States Court of Appeals for the Armed
Forces (CAAF), has consistently abided by the precedent set forth by the Su-
preme Court that the Sixth Amendment right to trial by jury does not apply to
courts-martial. Of note, however, the discussion on the right to a “jury trial”
often focuses on the lack of a right to a “representative cross-section” of the
accused’s community. For example, the CAAF and its predecessor have noted
that “[c]ourts-martial are not subject to the jury trial requirements of the Sixth
Amendment, and, therefore, military members are not afforded a trial in front
of a representative cross section of the military community.” United States v.
Riesbeck, 77 M.J. 154, 162 (C.A.A.F. 2018) (citing McClain, 22 M.J. at 128); see
also Easton, 71 M.J. at 175–76 (“By enacting Article 29, UCMJ, as it did, Con-
gress evinced the intent that, in light of the nature of the military, an accused
does not have the same right to have a trial completed by a particular court
panel as a defendant in a civilian jury trial does.”); United States v. Tulloch, 47
M.J. 283, 285 (C.A.A.F. 1997) (“[S]ervicemembers do not have the right in a
court-martial to a jury panel drawn from a representative cross-section of the
population . . . .”); United States v. Smith, 27 M.J. 242, 248 (C.M.A. 1988)
(“The Sixth Amendment grants defendants in criminal cases the right to a jury
trial. This right includes a requirement that the jury be drawn from a repre-
sentative cross-section of the community. However, the right to trial by jury
has no application to the appointment of members of courts-martial.”).
However, as will be discussed below, the CAAF and its predecessor court
have imported certain other constitutional protections pertaining to juries and
applied them to courts-martial panels.
3. Due Process and Equal Protection Application to Servicemem-
bers
The Fifth Amendment to the United States Constitution states:
No person shall be held to answer for a capital, or otherwise in-
famous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled in any crim-
inal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
U.S. CONST. amend. V (emphasis added).
Servicemembers have a right to due process of law under the Fifth Amend-
ment. United States v. Witham, 47 M.J. 297, 301 (C.A.A.F. 1997). This includes,
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United States v. Westcott, No. ACM 39936
in certain circumstances, the “right to equal protection [as] a part of due pro-
cess under the Fifth Amendment.” Id. (citation omitted).
Despite our court’s deference to Congress, Congress is still “subject to the
requirements of the Due Process Clause when legislating in the area of mili-
tary affairs . . . . But in determining what process is due, courts must give
particular deference to the determination of Congress, made under its author-
ity to regulate the land and naval forces.” Weiss v. United States, 510 U.S. 163,
176–77 (1994) (internal quotation marks and citations omitted). “The tests and
limitations of due process may differ because of the military context.” Id. at
177 (internal quotation marks and citation omitted).10 As stated in United
States ex rel. Toth v. Quarles:
[I]t is the primary business of armies and navies to fight or be
ready to fight wars should the occasion arise. But trial of soldiers
to maintain discipline is merely incidental to an army’s primary
fighting function. To the extent that those responsible for per-
formance of this primary function are diverted from it by the ne-
cessity of trying cases, the basic fighting purpose of armies is not
served. . . . [M]ilitary tribunals have not been and probably never
can be constituted in such way that they can have the same kind
of qualifications that the Constitution has deemed essential to
fair trials of civilians in federal courts.
350 U.S. 11, 17 (1955) (emphasis added).
“An ‘equal protection violation’ is discrimination that is so unjustifiable as
to violate due process.” United States v. Akbar, 74 M.J. 364, 405–06 (C.A.A.F.
2015) (quoting United States v. Rodriguez-Amy, 19 M.J. 177, 178 (C.M.A.
1985)). Whether such a violation exists may depend on whether distinctions
involve “suspect classifications” or encroach on fundamental constitutional
rights:
10 In Weiss, a case where the appellants challenged the appointment of military judges,
Justice Ginsburg observed:
The care the Court has taken to analyze petitioners’ claims demon-
strates once again that men and women in the Armed Forces do not
leave constitutional safeguards and judicial protection behind when
they enter military service. Today’s decision upholds a system of mili-
tary justice notably more sensitive to due process concerns than the
one prevailing through most of our country’s history, when military
justice was done without any requirement that legally trained officers
preside or even participate as judges.
Id. at 194 (Ginsburg, J., concurring).
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United States v. Westcott, No. ACM 39936
For the Government to make distinctions does not violate equal
protection guarantees unless constitutionally suspect classifica-
tions like race, religion, or national origin are utilized or unless
there is an encroachment on fundamental constitutional rights
like freedom of speech or of peaceful assembly. The only require-
ment is that reasonable grounds exist for the classification used.
United States v. Means, 10 M.J. 162, 165 (C.M.A. 1981) (first citing Oyler v.
Boles, 368 U.S. 448 (1962); and then citing United States v. Batchelder, 442
U.S. 114 (1979)).
In other words, for cases not involving substantive constitutional rights,
“equal protection is not denied when there is a reasonable basis for a difference
in treatment.” Akbar, 74 M.J. at 406 (quoting United States v. McGraner, 13
M.J. 408, 418 (C.M.A. 1982)).11 Under a rational basis test, the burden is on an
appellant to demonstrate that there is no rational basis for the rule he is chal-
lenging. The proponent of the classification “has no obligation to produce evi-
dence to sustain the rationality of a statutory classification.” Heller v. Doe, 509
U.S. 312, 320 (1993). “As long as there is a plausible reason for the law, a court
will assume a rational reason exists for its enactment and not overturn it.”
United States v. Paulk, 66 M.J. 641, 643 (A.F. Ct. Crim. App. 2008) (first citing
Heller, 509 U.S. at 320; and then citing United States v. Carolene Products Co.,
304 U.S. 144, 153 (1938)).
In United States v. Begani, the Navy-Marine Corps Court of Criminal Ap-
peals acknowledged that “[l]aws burdening fundamental rights are subjected
to strict scrutiny and will be sustained only if they are ‘necessary to promote a
compelling governmental interest.’” 79 M.J. 767, 777 (N.M. Ct. Crim. App.
2020) (quoting Dunn v. Blumstein, 405 U.S. 330, 342 (1972)), aff’d, 81 M.J. 273(C.A.A.F. 2021), cert. denied, __ U.S. __, 142 S. Ct. 711 (2021). Yet, our sister
court also wrote, “While there is no question the right to a grand jury and the
right to a trial by jury are fundamental constitutional rights, they are only fun-
damental to the extent (and to the persons to whom) the Constitution grants
them in the first place.” Id. at 776 (emphasis added).
11 “Absent a suspect classification or interference with a fundamental right, all that is
needed for the statute to withstand constitutional scrutiny is a rational basis for the
distinction between Appellant and future capital appellants.” United States v. Hennis,
77 M.J. 7, 10 (C.A.A.F. 2017) (first citing Akbar, 74 M.J. at 406; and then citing Tate
v. District of Columbia, 627 F.3d 904, 910 (D.C. Cir. 2010)).
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4. Military Justice System Incorporates Constitutional Protections
“[A] court-martial is now the only place in America where a criminal de-
fendant can be convicted without consensus among the jury.” Nino Monea, Re-
forming Military Juries in the Wake of Ramos v. Louisiana, 66 Naval L. Rev.
67, 72 (2020) [hereafter Monea].Virtually all the other provisions of the Sixth
Amendment have already been incorporated into the military justice system:12
a. Right to Speedy Trial: “In the military justice system, an accused’s
right to a speedy trial flows from various sources, including the Sixth Amend-
ment, Article 10 of the Uniform Code of Military Justice, and R.C.M. 707 of the
Manual for Courts-Martial.” United States v. Cooper, 58 M.J. 54, 57 (C.A.A.F.
2003); see also United States v. Danylo, 73 M.J. 183, 186 (C.A.A.F. 2014).
b. Right to Public Trial: “Without question, the [S]ixth [A]mendment
right to a public trial is applicable to courts-martial.” United States v. Hershey,
20 M.J. 433, 435 (C.M.A. 1985) (citing United States v. Grunden, 2 M.J. 116(C.M.A. 1977)).
c. Right to Confront: “We hold that where testimonial hearsay is ad-
mitted, the Confrontation Clause is satisfied only if the declarant of that hear-
say is either (1) subject to cross-examination at trial, or (2) unavailable and
subject to previous cross-examination.” United States v. Blazier, 69 M.J. 218,
222 (C.A.A.F. 2010).
d. Right to Notice:
The rights at issue in this case are constitutional in nature. The
Fifth Amendment provides that no person shall be “deprived of
life, liberty, or property, without due process of law,” U.S.
CONST. amend. V, and the Sixth Amendment provides that an
accused shall “be informed of the nature and cause of the accu-
sation,” U.S. CONST. amend. VI. Both amendments ensure the
right of an accused to receive fair notice of what he is being
charged with.
United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011) (citations omitted); see
also United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (applying the
protections of the Fifth and Sixth Amendments to set aside convictions under
Article 134, UCMJ).
e. Right to Compel: “The right to present a defense has many aspects.
Under the Compulsory Process Clause, a defendant has a ‘right to call wit-
nesses whose testimony is material and favorable to his defense.’” United
12 With the exception, for example, of the Vicinage Clause in the Sixth Amendment.
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United States v. Westcott, No. ACM 39936
States v. Bess, 75 M.J. 70, 75 (C.A.A.F. 2016) (quoting Rock v. Arkansas, 483
U.S. 44, 52 (1987)).
f. Right to Counsel: “The first question we address is when did appel-
lant’s right to counsel under the [S]ixth [A]mendment attach. . . . In the mili-
tary, this sixth-amendment right to counsel does not attach until preferral of
charges.” United States v. Wattenbarger, 21 M.J. 41, 43 (C.M.A. 1985) (citations
omitted).
g. Right to the Effective Assistance of Counsel: “The Sixth Amend-
ment guarantees a criminal accused, including military service members, the
right to effective assistance of counsel.” Gooch, 69 M.J. at 361 (citing United
States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)).
5. Judicial Recognition of Jury-Related Constitutional Rights as
Applied to Court-Martial Panels
Notwithstanding the deference afforded Congress to legislate on military
matters, as noted above, military appellate courts have applied certain consti-
tutional protections to courts-martial. Moreover, and especially relevant to the
present issue, military appellate courts have imported certain jury-specific con-
stitutional rights to court-martial panels.
For example, the CAAF has held that an accused has a right to an impartial
panel. On the Sixth Amendment right to an impartial panel, the CAAF held
that “the Sixth Amendment requirement that the jury be impartial applies to
court-martial members and covers not only the selection of individual jurors,
but also their conduct during the trial proceedings and the subsequent delib-
erations.” United States v. Lambert, 55 M.J. 293, 295 (C.A.A.F. 2001) (citations
omitted). On the Fifth Amendment, the CAAF noted: “As a matter of due pro-
cess, an accused has a constitutional right, as well as a regulatory right, to a
fair and impartial panel.” United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F.
2001) (citing United States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994)); see also
United States v. Richardson, 61 M.J. 113, 118 (C.A.A.F. 2005) (“As a matter of
due process, an accused has a constitutional right, as well as a regulatory right,
to a fair and impartial panel.”).
Moreover, the CAAF’s predecessor reviewed and applied Supreme Court
precedent on equal protection to racially discriminatory jury selection prac-
tices. United States v. Santiago-Davila, 26 M.J. 380, 389–90 (C.M.A. 1988). It
noted that Batson v. Kentucky, 476 U.S. 79 (1986), was “not based on a right to
a representative cross-section on a jury but, instead, on an equal-protection
right to be tried by a jury from which no ‘cognizable racial group’ has been
excluded.” Santiago-Davila, 26 M.J. at 389–90 (C.M.A. 1988) (quoting Batson,
476 U.S. at 96). The Santiago-Davila court continued: “This right to equal pro-
tection is a part of due process under the Fifth Amendment; and so it applies
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to courts-martial, just as it does to civilian juries.” Id. at 390 (citations omit-
ted).
6. Supreme Court Recognizes “Judicial” Nature of Courts-Martial
There used to be greater distinction between civilian criminal trials and
military courts-martial. Recognizing this distinction, in 1974, the Supreme
Court noted, “Just as military society has been a society apart from civilian
society,” so too is military law “a jurisprudence which exists separate and apart
from the law which governs in our federal judicial establishment.” Parker v.
Levy, 417 U.S. 733, 744 (1974) (emphasis added) (citation omitted). The Court
noted that the UCMJ “cannot be equated to a civilian criminal code.” Id. at
749.
Times have changed, however—as evidenced by numerous updates to the
UCMJ to add punitive offenses, the development of Military Rules of Evidence
that largely mirror the Federal Rules of Evidence, and, as described above, the
application of numerous constitutional trial rights to the courts-martial sys-
tem. Recognizing these changes, in 2018, the Supreme Court stated:
The jurisdiction and structure of the court-martial system like-
wise resemble those of other courts whose decisions we review.
Although their jurisdiction has waxed and waned over time,
courts-martial today can try service members for a vast swath of
offenses, including garden-variety crimes unrelated to military
service.
Ortiz v. United States, 138 S. Ct. 2165, 2174 (2018) (citations omitted).13 The
Court further noted that “[t]he sentences meted out are also similar: Courts-
martial can impose, on top of peculiarly military discipline, terms of imprison-
ment and capital punishment.” Id. at 2175 (citations omitted). A court-martial
is, “‘in the strictest sense’ a ‘court of law and justice’—‘bound, like any court,
by the fundamental principles of law’ and the duty to adjudicate cases ‘without
partiality, favor, or affection.’” Id. at 2175–76 (quoting 2 W. WINTHROP, MILI-
TARY LAW AND PRECEDENTS 54 (2d ed. 1896)). The Court thus recognized that
“[t]he military justice system’s essential character” is “in a word, judicial.” Id.
at 2174. The Court, in praising this judicial nature, stated, “It is in fact one of
the glories of this country that the military justice system is so deeply rooted
in the rule of law.” Id. at 2176 n.5.
13 Even 24 years before Ortiz was decided, the Supreme Court stated, “Congress has
taken affirmative steps to make the system of military justice more like the American
system of civilian justice . . . .” Weiss, 510 U.S. at 179.
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7. Supreme Court’s Ruling in Ramos v. Louisiana
In Ramos v. Louisiana, the Supreme Court held that the Sixth Amendment
right to a jury trial, as incorporated against the states under the Fourteenth
Amendment,14 required a unanimous verdict for an accused charged with a
serious offense. 140 S. Ct. at 1408.
Prior to the Ramos decision, Louisiana and Oregon were the only remain-
ing states that allowed for nonunanimous jury verdicts, both allowing for a
“10–2 verdict.”15 Yet Justice Gorsuch, delivering the opinion of the Court, ex-
plained:
The text and structure of the Constitution clearly suggest that
the term “trial by an impartial jury” carried with it some mean-
ing about the content and requirements of a jury trial.
One of these requirements was unanimity. Wherever we might
look to determine what the term “trial by an impartial jury”
meant at the time of the Sixth Amendment’s adoption—whether
it’s the common law, state practices in the founding era, or opin-
ions and treatises written soon afterward—the answer is unmis-
takable. A jury must reach a unanimous verdict in order to con-
vict.
Id. at 1395.
In Ramos, the Supreme Court noted it had “commented on the Sixth
Amendment’s unanimity requirement no fewer than 13 times over more than
120 years.” Id. at 1397. The Court then stated that “the Sixth Amendment
right to a jury trial is ‘fundamental to the American scheme of justice’ and
incorporated against the States under the Fourteenth Amendment.” Id. at
1397 (quoting Duncan v. Louisiana, 391 U. S. 145, 148–150 (1968)). The court
concluded: “There can be no question either that the Sixth Amendment’s una-
nimity requirement applies to state and federal criminal trials equally.” Id.When the scope of Ramos’ retroactivity was addressed in Edwards v. Van-
noy,16 the Supreme Court stated Ramos was a “momentous and consequential”
decision—much like Duncan v. Louisiana, 391 U.S. 145 (1968); Crawford v.
Washington, 541 U.S. 36 (2004); and Batson v. Kentucky, 476 U.S. 79 (1986)—
as those cases “fundamentally reshaped criminal procedure throughout the
14 U.S. CONST. amend. XIV.
15 Prior to the Ramos decision, in 2018, Louisiana dispensed with the 10–2 verdict in
favor of unanimous juries, but nonunanimous verdicts were allowed for cases prior to
2019. Oregon remained the only state allowing for nonunanimous juries. Monea at 73.
16 Edwards held that Ramos does not apply retroactively on federal collateral review.
141 S. Ct. 1547, 1554 (2021).
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United States v. Westcott, No. ACM 39936
United States and significantly expanded the constitutional rights of criminal
defendants.” 141 S. Ct. 1547, 1559 (2021).
In her dissent in Edwards, Justice Kagan stated that “the Court in Ramos
termed the Sixth Amendment right to a unanimous jury ‘vital,’ ‘essential,’ ‘in-
dispensable,’ and ‘fundamental’ to the American legal system,” and noted the
court had made “a fundamental change in the rules thought necessary to en-
sure fair criminal process.” Id. at 1573–74 (Kagan, J., dissenting). Justice Ka-
gan later cited to In Re Winship, 397 U.S. 358, stating that “Winship rested on
an ‘ancient’ legal tradition incorporated in the Constitution” and “that a jury
must find guilt “beyond a reasonable doubt,” and “[a]s in Ramos, that tradition
served to ‘safeguard men’ from ‘unjust convictions, with resulting forfeitures’
of freedom.” Id. at 1576 (Kagan, J., dissenting) (quoting Winship 397 U.S. at
362). Justice Kagan continued:
Allowing conviction by a non-unanimous jury impairs the pur-
pose and functioning of the jury, undermining the Sixth Amend-
ment’s very essence. It raises serious doubts about the fairness
of a trial. And it fails to assure the reliability of a guilty verdict.
So when a jury has divided, as when it has failed to apply the
reasonable-doubt standard, there has been no jury verdict
within the meaning of the Sixth Amendment.
Id. at 1577 (alterations, internal quotation marks, and citations omitted).
8. Analysis—Sixth Amendment Right to a Jury Trial
For over 150 years, the Supreme Court and military appellate courts have
consistently held that the Sixth Amendment right to a jury trial does not ex-
tend to trial by courts-martial. See United States v. Wolff, 5 M.J. 923, 924
(N.C.M.R. 1978) (first citing United States v. Kemp, 46 C.M.R. 152 (C.M.A.
1973); and then citing H. Moyer, Justice and the Military, § 2-585 (1972)).
There can be no doubt that when Ramos was decided, most military practition-
ers considered this case a watershed moment in the administration of justice;
the language Justice Gorsuch uses is unequivocal. Yet neither Justice Gorsuch,
nor any of the concurring or dissenting justices, mentioned the potential effect
of Ramos on the military justice system. Notwithstanding a servicemember’s
lack of Sixth Amendment right to a “jury trial,” the member does enjoy a Sixth
Amendment right to an “impartial panel.” See Lambert, 55 M.J. at 295. Given
the Ramos court’s holding that a “trial by an impartial jury” required a unan-
imous verdict, one could find that an impartial court-martial panel similarly
requires unanimity. However, there is nothing in the Court’s majority opinion
on whether Ramos has any effect on the military justice system. I do not believe
this was an oversight. If the Supreme Court had wanted Ramos to apply to the
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military, it could have said as much.17 Although this specific issue may not
have been squarely addressed by our superior courts—and indeed the CAAF
may find that Ramos compels a finding that an “impartial court-martial panel”
must be unanimous—I ultimately do not part from the long-standing precedent
on the servicemember’s lack of a Sixth Amendment right to a “jury trial.”18
9. Analysis—Fifth Amendment and Equal Protection
Our deference to Congress on military matters is not absolute. Indeed, not-
withstanding the fact that courts-martial are Article I courts, numerous trial
rights have been guaranteed to servicemembers as constitutional rights.
Given that our military justice system is “judicial”—as described in Ortiz—
I find the right to a unanimous verdict is a fundamental constitutional right,
as articulated in Ramos.19 As such, the denial of this right is subject to strict
17 If one goes back to the Supreme Court’s decision in Ortiz (decided less than two years
prior to Ramos), in which the Court addressed its role in the military appellate review
process, Justice Alito, dissenting, stated, “Our appellate jurisdiction permits us to re-
view one thing: the lawful exercise of judicial power.” Ortiz, 138 S. Ct. at 2190 (Alito,
J., dissenting). Justice Alito then stated, “As currently constituted, military tribunals
do not comply with Article III, and thus they cannot exercise the Federal Government’s
judicial power. That fact compels us to dismiss Ortiz’s petition for lack of jurisdiction.”
Id. In the 7–2 ruling in Ortiz, the only person who agreed with Justice Alito was Justice
Gorsuch. Two-and-a-half years later, in United States v. Briggs, Justice Gorsuch made
it clear that he “continue[s] to think [the Supreme Court] lacks jurisdiction to hear
appeals from the CAAF.” 141 S. Ct. 467, 474 (2020) (Gorsuch, J., concurring). Logically,
if Justice Gorsuch believed the Supreme Court did not have jurisdiction over the Ortiz
or Briggs cases, then the Court would not have jurisdiction to address servicemembers’
right to a jury, which may explain why he did not reference the military justice system
in Ramos.
18 Stare decisis encompasses two distinct concepts: (1) vertical stare decisis—the prin-
ciple that courts “must strictly follow the decisions handed down by higher courts,” and
(2) horizontal stare decisis—the principle that “an appellate court[ ] must adhere to its
own prior decisions, unless it finds compelling reasons to overrule itself.” United States
v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018) (citation omitted). “We are not bound by
precedent where ‘there has been a significant change in circumstances after the adop-
tion of a legal rule, or an error in legal analysis,’ and we are ‘willing to depart from
precedent when it is necessary to vindicate plain, obvious principles of law and remedy
continued injustice.’” Id. at 399 (citing 20 AM. JUR. 2D Courts § 127 (2018)).
19 The Supreme Court in Ramos relied on the Sixth Amendment when holding that
criminal defendants in serious cases enjoy the right to a unanimous verdict. See Ra-
mos, 140 S. Ct. at 1397. Thus, it might appear unusual to deny relief on Sixth Amend-
ment grounds then conduct an equal protection analysis. However, equal protection
under the Fifth Amendment applies to various constitutional rights. See, e.g., United
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scrutiny, and not rational basis. See Begani, 79 M.J. at 777 (noting that re-
strictions “burdening fundamental rights are subjected to strict scrutiny”).
“Strict scrutiny analysis requires the challenged statute to serve a ‘compelling
governmental interest,’ and the means taken to be ‘narrowly tailored’ to ac-
complish this goal.” Begani, 79 M.J. at 793 (Crisfield, C.J., dissenting) (cit-
ing Grutter v. Bollinger, 539 U.S. 306, 326 (2003)). As the dissent articulated
in Begani, “I do not see any contradiction in performing a strict scrutiny anal-
ysis while providing Congress with great deference. Judicial deference does not
mean abdication.” Id. at 792 (internal quotation marks and citation omitted).20
What is the compelling governmental interest in justifying a nonunani-
mous panel verdict? In an unpublished opinion, one of our sister courts posited
possible reasons:
States v. Means, 10 M.J. 162, 165 (C.M.A. 1981) (discussing equal protection analysis
when applied to “an encroachment on fundamental constitutional rights like freedom
of speech or of peaceful assembly”).
20 Begani involved the Navy’s jurisdiction over reserve personnel. On congressional
deference, the court stated:
[I]t still strikes us as odd that in one scenario, Congress would be free
to legislate based on the differences between the two dissimilar groups
and courts would be satisfied with some rational reason for Congres-
sional action, but in the present scenario, we would not only find the
groups suddenly similar, but would be compelled to apply strict scru-
tiny.
We also must keep in mind we are delving into “Congress’ authority
over national defense and military affairs, and perhaps no other area
has the [Supreme] Court accorded Congress greater deference.”
79 M.J. at 779 (quoting Rostker v. Goldberg, 453 U.S. 57, 64–65 (1981)). The Court
continued:
We look to the Supreme Court for guidance in whether to formally ap-
ply strict scrutiny analysis or to generally defer to Congress in military
matters. Rostker, and other cases concerning the military, arose in
more pure equal protection categories, such as sex discrimination, ra-
ther than cases more focused on the fundamental rights aspect of the
equal protection component of the Due Process clause. But we believe
the same sort of deference is due to Congress in military matters for
equal protection challenges based on the deprivation of a fundamental
right.
Id. at 780. It is worth noting that in its Begani opinion, the CAAF rejected the conten-
tion that the Sixth Amendment right to jury trial was implicated and that strict scru-
tiny should be applied. Begani, 81 M.J. at 280 n.2.
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United States v. Westcott, No. ACM 39936
[C]urrent practice helps reduce the possibility of impermissible
influences on panel members both inside and outside the delib-
eration room. These pernicious concerns of improper influence
will be most acutely felt when the case involves high stakes,
when the case involves infamous acts, or when the personalities
involved are less likely to yield to prophylactic instructions. That
is, concerns of improper influence are most likely to be a problem
in the most problematic of circumstances.
United States v. Mayo, ARMY 20140901, 2017 CCA LEXIS 239, at *22 (A. Ct.
Crim. App. 7 Apr. 2017).
Due to “military life and custom,” the court suggested that our system “al-
lows a panel member to cast what they might perceive to be an unpopular
vote,” yet concluded a requirement of unanimity “would only frustrate the goal
of deliberating until all panel members are in agreement. As a result, a re-
quirement to keep deliberating until all members agree poses special concerns
when one panel member outranks the other.” Id. at *20.
Essentially, that panel was concerned about unlawful command influence.
Perhaps the Government thus has an interest in nonunanimous panels, but
the law concerning unlawful command influence is—supposedly—in place to
protect an accused. “[T]o say that one protection for an accused servicemember
is a reason to diminish another protection is a non-sequitur.” Dial Ruling at 15
(full citation in n.8, supra).
Regardless of how one views the question of whether military members
have a constitutional right to a unanimous verdict, the Mayo rationale as jus-
tification to deny servicemembers the right to a unanimous jury should give
anyone pause about the fairness of the military justice system. The Mayo opin-
ion on improper influence is contrasted by that espoused by a federal court of
appeals:
The dynamics of the jury process are such that often only one or
two members express doubt as to [the] view held by a majority
at the outset of deliberations. A rule which insists on unanimity
furthers the deliberative process by requiring the minority view
to be examined and, if possible, accepted or rejected by the entire
jury. The requirement of jury unanimity thus has a precise effect
on the fact-finding process, one which gives particular signifi-
cance and conclusiveness to the jury’s verdict. Both the defend-
ant and society can place special confidence in a unanimous ver-
dict, and we are unwilling to surrender the values of that mode
of fact-finding, or to examine the constitutional implications of
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United States v. Westcott, No. ACM 39936
an attempt to do so, absent a clear mandate in the Rules or a
controlling statute.
United States v. Lopez, 581 F.2d 1338, 1341–42 (9th Cir. 1978). Justice Ka-
vanaugh echoed some of this sentiment in his Ramos concurrence:
Then and now, non-unanimous juries can silence the voices and
negate the votes of black jurors, especially in cases with black
defendants or black victims, and only one or two black jurors.
The 10 jurors “can simply ignore the views of their fellow panel
members of a different race or class.”
Ramos, 140 S. Ct. at 1418 (Kavanaugh, J. concurring in part) (quoting John-
son v. Louisiana, 406 U. S. 356, 397 (1972) (Stewart, J., dissenting)).
Other potential reasons to preserve nonunanimous verdicts are perhaps
expediency21 or the ability to procure members to sit on panels—specifically at
remote locations or in times of war or crisis. Also, a nonunanimous panel allows
for the finality of a verdict, thus preventing hung juries. With respect to expe-
diency, cases generally take much longer to get to trial than they did in 1950,
especially when scientific testing of evidence is involved; it is not uncommon
for a case to proceed to trial a year after the offense was committed. Regarding
the procurement of members, this may have been a significant issue in 1950,
but is not so in 2022, as it is not uncommon to travel servicemembers to sit on
panels at other installations. Finally, as the military judge noted in Dial, and
which I agree, when it comes to hung juries and re-voting, these are only issues
“if either the Constitution or congressional legislation requires a unanimous
vote to acquit.” Dial Ruling at 15. Having considered these possible reasons,
none warrant denial of equal protection regarding a unanimous verdict when
viewed in context of the consequences of such a verdict.
That nonunanimous verdicts deprive servicemembers of equal protection
under the law is further evidenced by cases—such as Appellant’s—in which
the crime lacks a specific military nexus and the military specifically requests
prosecutorial jurisdiction from civilian authorities. Appellant’s crime occurred
in North Carolina. North Carolina officials “ceded” jurisdiction to military au-
thorities. Appellant had a constitutional right to a unanimous jury in North
21 In Solorio, dissenting, Justice Marshall wrote,
[T]he concept that the Bill of Rights and other constitutional protec-
tions against arbitrary government are inoperative when they become
inconvenient or when expediency dictates otherwise is a very danger-
ous doctrine and if allowed to flourish would destroy the benefit of a
written Constitution and undermine the basis of our Government.
483 U.S. at 461 (quoting Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion).
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United States v. Westcott, No. ACM 39936
Carolina; under longstanding military precedent, in a court-martial he did not.
In other words, he had at least one less fundamental right in the military than
had he been tried in North Carolina. It thus became easier to secure a convic-
tion—and not just under the Louisiana/Oregon standard of 10–2, but under a
standard of 6–2. The only significant connection between the military and the
offenses at issue was the fact that Ms. SW was a military dependent. Thus,
failing to require unanimous panel verdicts gives military prosecutors an ad-
vantage of constitutional proportions over their state and federal counterparts,
making it easier for our system to secure convictions, and exposing the possi-
bility of forum shopping among jurisdictions. While the Air Force maintains a
position of “maximizing Air Force jurisdiction,”22 unanimous panels would
limit the prosecutorial advantage gained by obtaining jurisdiction in the mili-
tary justice system.23
22 Air Force Instruction 51-201, Administration of Military Justice, ¶ 4.18.1 (18 Jan.
2019).
23 Regarding issues of double jeopardy, Justice Alito stated it would be rare for a ser-
vicemember to be prosecuted for the same offense. “States usually have concurrent
jurisdiction over such crimes when they are committed off base and sometimes possess
jurisdiction over such offenses when committed on base. These offenses, however, are
rarely prosecuted in both a military and a state court, and therefore when a service-
member is court-martialed for a sex offense over which the State had jurisdiction, this
is usually because the State has deferred to the military.” United States v. Kebodeaux,
570 U.S. 387, 404 (2013) (Alito, J., concurring in the judgment). For an example of a
rare and extraordinary case, see United States v. Hennis, 79 M.J. 370 (C.A.A.F. 2020).
Justice Alito also advised,
Where an act or omission is subject to trial by court-martial and by one
or more civil tribunals, the determination which nation, state, or
agency will exercise jurisdiction is a matter for the nations, states, and
agencies concerned, and is not a right of the suspect or accused. Rule
201(d)(3). And as the commentary to Rule 201(d) explains, the deter-
mination which agency shall exercise jurisdiction should normally be
made through consultation or prior agreement between appropriate
military officials . . . and appropriate civilian authorities. [I]t is consti-
tutionally permissible to try a person by court-martial and by a State
court for the same act, however, as a matter of policy a person who is
pending trial or has been tried by a State court should not ordinarily
be tried by court-martial for the same act.
Kebodeaux, 570 U.S. at 405 n.2 (alterations in original) (internal quotation marks omit-
ted) (Alito, J., concurring in the judgment).
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United States v. Westcott, No. ACM 39936
10. Consequences of Denying Equal Protection
Some may argue that Congress, with the “exceptional” powers granted to
it by the Constitution, can do what it wants with the military and thus choose
to deny servicemembers the right to a unanimous verdict. I conclude that un-
der our judicial system, Congress cannot do so.
However, if Congress has this power, it may be time to accept that a “con-
viction” in the military system is not equivalent to a state or federal convic-
tion24 and reevaluate the words spoken in Parker, that the military system is
“a jurisprudence which exists separate and apart from the law which governs
in our federal judicial establishment.” Parker, 417 U.S. at 744 (emphasis
added) (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)).
Even our “separate system,” however, must review whether servicemem-
bers’ fundamental rights are being violated. “For the Government to make dis-
tinctions does not violate equal protection guarantees unless constitutionally
suspect classifications like race, religion, or national origin are utilized or un-
less there is an encroachment on fundamental constitutional rights like freedom
of speech or of peaceful assembly.” Means, 10 M.J. at 165 (emphasis added)
(citing Oyler, 368 U.S. at 446). Ramos constituted “a fundamental change in
the rules thought necessary to ensure fair criminal process.” Edwards, 141 S.
Ct. at 1574 (Kagan, J., dissenting). By not having the right to a unanimous
panel, what Congress defines as “fair criminal process” is very different from
the federal and state systems.
Upon a military conviction, servicemembers may be subject to various post-
trial proceedings and requirements. These include DNA processing required
under 10 U.S.C. § 1565 and Department of Defense Instruction (DoDI)
5505.04;25 firearms prohibition, triggered under 18 U.S.C. § 922; domestic vio-
lence ramifications under 18 U.S.C. § 922(g)(9); and sex offender notification
24 See Gourzong v. AG United States, 826 F.3d 132, 137 (3d Cir. 2016) (“Courts are in
wide agreement that convictions by general courts-martial receive the weight of equiv-
alent convictions in the civilian system.”); see also United States v. Shaffer, 807 F.3d
943, 948 (8th Cir. 2015) (“[W]e hold that Shaffer’s conviction by general court-mar-
tial is a conviction in ‘a court of the United States’ within 18 U.S.C. § 3559(c).”).
25 Department of Defense Instruction (DoDI) 5505.14, Deoxyribonucleic Acid Collection
Requirements for Criminal Investigations, Law Enforcement, Corrections, and Com-
manders (22 Dec. 2015, incorporating Change 2, 7 May 2021).
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United States v. Westcott, No. ACM 39936
requirements, in accordance with DoDI 1325.07,26 the latter of which I will
focus on.
By virtue of Appellant’s conviction, he will have to register as a sex offender
in North Carolina. In 2006, Congress enacted the Sex Offender Registration
and Notification Act (SORNA), 34 U.S.C. § 20901 et seq.,27 “a federal statute
that requires those convicted of federal sex offenses to register in the States
where they live, study, and work.” Kebodeaux, 570 U.S. 387, 389 (2013).28
Given that Congress can promulgate the UCMJ under U.S. CONST. art. I, § 8,
cl. 14, it could “specify that the sex offense of which [the appellant] was con-
victed was a military crime under that Code.” Kebodeaux, 570 U.S. at 395.
Moreover, Congress could “punish that crime through imprisonment and by
placing conditions upon [the appellant’s] release” and “make the civil registra-
tion requirement at issue here a consequence of [the appellant’s] offense and
conviction.” Id.
Under 18 U.S.C.S. § 2250(a), whoever
(1) is required to register under the Sex Offender Registration
and Notification Act;
(2) (A) is a sex offender as defined for the purposes of the Sex
Offender Registration and Notification Act by reason of a convic-
tion under Federal law (including the Uniform Code of Military
Justice [10 USCS §§ 801 et seq.]), the law of the District of Co-
lumbia, Indian tribal law, or the law of any territory or posses-
sion of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves,
or resides in, Indian country; and
(3) knowingly fails to register or update a registration as re-
quired by the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10
years, or both.
26 Department of Defense Instruction (DoDI) 1325.07, Administration of Military Cor-
rectional Facilities and Clemency and Parole Authority (11 Mar. 2013, incorporating
Change 4, 19 Aug. 2020).
27 SORNA has been transferred to 34 U.S.C. § 20901 et seq. from 42 U.S.C. § 16901.
28 Kebodeaux involved a former Airman who was convicted of statutory rape in 1999
and thus subject to sex offender registration under the Wetterling Act, which was re-
placed by SORNA. The Court noted that “the fact that the federal law’s requirements
in part involved compliance with state-law requirements made them no less require-
ments of federal law.” Kebodeaux, 570 S. Ct. at 393 (citations omitted).
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United States v. Westcott, No. ACM 39936
(Emphasis added).
However, Congress’s broad and “expansive power is constrained by the
Fifth Amendment’s guarantee of Due Process and the imputed guarantee of
Equal Protection.” Begani, 79 M.J. at 791 (Crisfield, C.J., dissenting). In terms
of sex offender registration, SORNA considers a military conviction equal to a
federal or state conviction. If a servicemember is denied a unanimous panel, it
is not equal.
In Appellant’s case, if he and a civilian were successfully prosecuted for the
same sex crime in state or federal court with the benefit of a unanimous ver-
dict, both would be similarly situtated as both would be subject to the same
SORNA requirements. However, if Appellant were tried and convicted under
the UCMJ, and a civilian were tried and convicted in a civilian jurisdiction for
the same sex crime, the civilian defendant would have the fundamental consti-
tutional right to a unanimous verdict from 12 jurors. Appellant, on the other
hand, would not only be denied a unanimous verdict, but could be convicted by
as few as six persons. Both Appellant and the civilian, however, would face the
same SORNA consequences. This is not equal protection under the law. I am
convinced that servicemembers and civilians are similarly situated for pur-
poses of equal protection analysis when it comes to evaluating nonunanimous
verdicts and their consequences under SORNA.
SORNA is nothing to simply dismiss. Long after Appellant has served his
confinement, the collateral consequences of his crimes will remain; sex offense
registration may place significant qualifications and restrictions on his life and
liberty for an indeterminate period of time. I go back to my dissent in United
States v. Palacios Cueto, where I noted how appellant’s convictions, along with
the expansion of sex offender requirements in recent years, begs the question
as to when the collateral consequences of such convictions look more like a
punishment. No. ACM 39815, 2021 CCA LEXIS 239, at *64 n.3 (A.F. Ct. Crim.
App. 18 May 2021) (unpub. op.) (Meginley, J., dissenting), rev. granted on other
grounds, __ M.J. __, No. 21-0357, 2022 CAAF LEXIS 114 (C.A.A.F. 7 Feb.
2022). With the denial of such a fundamental right, coupled with a finding of
guilty from as few as six out of eight people, SORNA implications as a result
of a court-martial conviction appear to be more of a punishment than a mere
collateral consequence. Finally, it is worth reiterating that DoDI 1325.07
makes it clear that Appellant will have to register as a sex offender. See DoDI
1325.07, Appendix 4 to Enclosure 2, Table 6, at 84.
While the vast majority of sexual assault cases are prosecuted in the gen-
eral court-martial forum, there are some sex offense cases that are prosecuted
in a special court-martial forum. Again, in these instances, servicemembers
face sex offender registration under SORNA, yet, only three out of four panel
members are needed to convict. In Ballew v. Georgia, Justice Blackmun noted
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United States v. Westcott, No. ACM 39936
that a unanimous conviction by a five-person jury for a non-petty offense vio-
lated an accused’s right to jury trial, and relying on empirical studies, con-
cluded that
[T]he purpose and functioning of the jury in a criminal trial is
seriously impaired, and to a constitutional degree, by a reduction
in size to below six members. We readily admit that we do not
pretend to discern a clear line between six members and five.
But the assembled data raise substantial doubt about the relia-
bility and appropriate representation of panels smaller than six.
Because of the fundamental importance of the jury trial to the
American system of criminal justice, any further reduction that
promotes inaccurate and possibly biased decision making, that
causes untoward differences in verdicts, and that prevents juries
from truly representing their communities, attains constitu-
tional significance.
435 U.S. 223, 239 (1978).
If a sexual assault allegation is brought to a special court-martial, and a
servicemember faces sex offender registration for an indeterminate period of
time, this is not a petty offense.
11. Unanimous Verdict—Conclusion
In Reid v. Covert, the Supreme Court noted: “Every extension of military
jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more
important, acts as a deprivation of the right to jury trial and of other treasured
constitutional protections.” 354 U.S. 1, 21 (1957). The Court noted the mili-
tary’s jurisdiction was always intended “to be only a narrow exception to the
normal and preferred method of trial in courts of law.” Id. (emphasis added).
Yet, the majority of the offenses committed by servicemembers are common
law offenses and not military-specific offenses. Perhaps because the military
often prosecutes non-military-specific offenses, the military justice system has
evolved to incorporate many of the protections and safeguards of our civilian
court counterparts.
The “judicial” nature of our system, see Ortiz, 138 S. Ct. at 2174–76, makes
it difficult for Congress to demonstrate what particular need or objective it is
trying to accomplish in the denial of this “fundamental right.” Given the sig-
nificant changes our military justice system has undergone over the last 15
years, and the amount of scrutiny we have received, some might say the only
reason to maintain the current system of nonunanimous verdicts is to make it
easier for the Government to secure convictions. Yet, are we concerned with
convictions or justice?
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United States v. Westcott, No. ACM 39936
In Solorio, the Supreme Court held that the military could try a service-
member for a criminal offense even if the offense lacked a “service connection.”
483 U.S. at 436. In his dissent, Justice Marshall stated:
Unless Congress acts to avoid the consequences of this case,
every member of our Armed Forces, whose active duty members
number in the millions, can now be subjected to court-martial
jurisdiction -- without grand jury indictment or trial by jury --
for any offense, from tax fraud to passing a bad check, regardless
of its lack of relation to “military discipline, morale and fit-
ness.” Today’s decision deprives our military personnel of proce-
dural protections that are constitutionally mandated in trials for
purely civilian offenses. The Court’s action today reflects con-
tempt, both for the members of our Armed Forces and for the
constitutional safeguards intended to protect us all.
Id. at 467 (Marshall, J., dissenting) (citation omitted).
Justice Marshall’s words have proven partly true. Fortunately, military
members have been afforded numerous “procedural protections that are con-
stitutionally mandated in trials for purely civilian offenses.” See id. Although
each servicemember takes an oath to support and defend the Constitution, a
fundamental constitutional right is denied to those who are accused of a crime
in our system. I have no doubt that some reading this opinion will be concerned
about the consequences of imposing a unanimous verdict requirement for
courts-marial; however, as Justice Gorsuch noted in Ramos: “Every judge must
learn to live with the fact he or she will make some mistakes; it comes with the
territory. But it is something else entirely to perpetuate something we all know
to be wrong only because we fear the consequences of being right.” 140 S. Ct.
at 1408. The consequence of being right will not dilute or hamper or impede
military justice; it will strengthen the integrity and fairness of our judicial sys-
tem. I respectfully dissent.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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