United States v. Goldman ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39939
________________________
UNITED STATES
Appellee
v.
Paul J. GOLDMAN
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 20 January 2022
________________________
Military Judge: Charles G. Warren.
Sentence: Sentence adjudged on 11 March 2020 by GCM convened at
Barksdale Air Force Base, Louisiana. Sentence entered by military
judge on 21 May 2020: Bad-conduct discharge, confinement for 10
months, reduction to E-1, and a reprimand.
For Appellant: Major Jenna M. Arroyo, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Lieutenant
Colonel Dayle P. Percle, USAF; Major Abbigayle C. Hunter, USAF;
Mary Ellen Payne, Esquire.
Before JOHNSON, LEWIS, and ANNEXSTAD, Appellate Military
Judges.
Senior Judge LEWIS delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Goldman, No. ACM 39939
LEWIS, Senior Judge:
In accordance with Appellant’s pleas and pursuant to a plea agreement, a
general court-martial composed of a military judge found Appellant guilty of
two specifications of willfully disobeying a superior commissioned officer, one
specification of failure to obey a lawful general regulation, one specification of
wrongful use of marijuana, three specifications of assault consummated by a
battery, two specifications of assault consummated by a battery of a child, one
specification of obstruction of justice, one specification of wrongful extramari-
tal sexual conduct, one specification of child endangerment, and one specifica-
tion of drunk and disorderly conduct, in violation of Articles 90, 92, 112a, 128,
131b, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890,
892, 912a, 928, 931b, and 934.1,2
Some of Appellant’s offenses occurred prior to 1 January 2019 and Appel-
lant elected to be sentenced under the sentencing procedures that took effect
on 1 January 2019. See Rule for Courts-Martial (R.C.M.) 1002(d)(2) (address-
ing segmented sentencing for confinement and fines and concurrent or consec-
utive confinement terms). Consistent with the plea agreement, the military
judge sentenced Appellant to a bad-conduct discharge, a total of ten months of
confinement,3 reduction to the grade of E-1, and a reprimand.
Pursuant to the plea agreement, the convening authority agreed to dismiss
the following, with prejudice, after announcement of sentence: (1) Charge IV
and its two specifications, which alleged violations of Article 120, UCMJ, 10
U.S.C. § 920 (Manual for Courts-Martial, United States (2016 ed.)); and (2)
Charge V, Specification 4, which alleged a violation of Article 128, UCMJ, 10
U.S.C. § 928 (Manual for Courts-Martial, United States (2019 ed.) (2019
MCM)). Prior to adjourning the court-martial, the military judge granted the
Government’s motion to dismiss with prejudice Charge IV and its specifica-
tions and Charge V, Specification 4.
1 Unless otherwise noted, references to the UCMJ and the Rules for Courts-Martial
(R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.) (2019 MCM).
As Appellant’s convicted offenses spanned from 1 December 2015 to 6 September 2019,
references to the punitive articles of the UCMJ are to the 2019 MCM, Manual for
Courts-Martial, United States (2016 ed.), and Manual for Courts-Martial, United
States (2012 ed.).
2 Pursuant to the plea agreement, Appellant pleaded guilty, excepting certain words
from one of the three specifications of assault consummated by a battery, one of the
two specifications of assault consummated by a battery of a child, and the child endan-
germent specification.
3 The confinement terms ran concurrently and varied from a low of three months to a
high of ten months.
2
United States v. Goldman, No. ACM 39939
On 5 May 2020, after considering Appellant’s clemency submission and
consulting with the staff judge advocate, the convening authority took no ac-
tion on the findings or sentence. The convening authority granted Appellant’s
request to defer the adjudged reduction to the grade of E-1 from 14 days after
the sentence was announced until the date of the entry of judgment (EoJ). The
convening authority also deferred the automatic forfeitures of pay and allow-
ances from 14 days after announcement of sentence until the date of the EoJ.
The convening authority waived the automatic forfeitures for a period of six
months, or expiration of term of service, with the waiver commencing on the
date of the EoJ, and directed the forfeitures be paid to Appellant’s former
spouse, MP, for the benefit of Appellant’s dependent child, EG. Finally, the
convening authority provided the language for Appellant’s reprimand.
The military judge signed the EoJ on 21 May 2020. The EoJ does not state
that Charge IV and its two specifications and Charge V, Specification 4, were
dismissed with prejudice. Rather, it states they were “Withdrawn and Dis-
missed After Arraignment.”
Appellant raises three assignments of error: (1) whether the convening au-
thority’s failure to unambiguously dismiss certain charges and specifications
with prejudice constituted noncompliance with a material term of the plea
agreement; (2) whether Appellant is entitled to sentence relief because his rec-
ord of trial is incomplete; and (3) whether Appellant is entitled to appropriate
relief as the convening authority failed to take action on the sentence as re-
quired by law.4
We find that a remand to the Chief Trial Judge, Air Force Trial Judiciary,
is the appropriate response to resolve Appellant’s first assignment of error. See
United States v. Samples, No. ACM S32657, 2021 CCA LEXIS 463, at *5 (A.F.
Ct. Crim. App. 15 Sep. 2021) (unpub. op.) (finding a failure to state charged
offenses in an EoJ were dismissed with prejudice implies those charged of-
fenses were dismissed without prejudice).
During the remand, we authorize a detailed military judge to address the
errors and omissions documented in Appellant’s second and third assignments
4 We have reworded the assignments of error. We granted Appellant’s motion to file
issue (3) as a supplemental assignment of error.
3
United States v. Goldman, No. ACM 39939
of error. We also authorize correction of additional errors in the EoJ and cor-
rection of the record of trial due to an omission of the audio recording of one
session of the trial proceedings.5
I. BACKGROUND
The military judge convicted Appellant of 13 offenses across 5 charges. We
summarize the offenses generally and group certain offenses together.6 We de-
scribe most of the offenses in chronological order.
A. Assault Consummated by a Battery, Child Endangerment, and
Drunk and Disorderly Offenses
Appellant was convicted of assault consummated by a battery against three
adults and two children. He was also convicted of child endangerment of one of
the two children. Finally, Appellant was convicted of a drunk and disorderly
conduct offense that occurred the same night as three of the battery offenses.
The first battery offense occurred between April 2016 and December 2017.
During an argument, Appellant unlawfully pushed MP, his first wife, on the
chest with his hands. The push caused MP’s body to hit a wall putting a hole
in it. Later, MP took three photographs, which showed red marks on her body.
The child endangerment offense occurred while Appellant was still married
to MP. The victim of the offense was his then six-month-old daughter, EG. In
April 2017, MP was changing EG’s diaper while simultaneously arguing with
Appellant. Appellant threw a plush ostrich toy with plastic eyes at MP. The
toy was about half of the size of his daughter. During the providence inquiry,
Appellant described the throw as “hard and directly like a fastball.” Appellant
also described the throw as a “seven or an eight” on a scale of zero to ten, with
ten being the hardest he could throw it. The toy missed MP, hit a wall, and
struck objects on EG’s changing table before stopping within six inches of EG.
Appellant described why he believed his actions constituted culpable negli-
gence that might have resulted in foreseeable harm to EG and why he breached
his duty of care for her.
The second battery offense occurred in the summer of 2018. By this time,
MP and Appellant had divorced. EG, then 2 years old, was visiting Appellant
in San Antonio, Texas, under a custody arrangement. While driving, Appellant
unlawfully struck EG across the face with his hand causing her lip to bleed. At
5 Some of these issues were discovered in conducting our Article 66, UCMJ, 10 U.S.C.
§ 866, review.
6 The background is drawn from the stipulation of fact, Appellant’s providence inquiry,
and the testimony of sentencing witnesses.
4
United States v. Goldman, No. ACM 39939
the time Appellant struck her, EG was strapped in a car seat in the backseat.
Appellant used force against EG that went beyond any disciplinary purpose.
During the providence inquiry, Appellant described his level of force as “un-
reasonable and excessive.”
Appellant committed the third, fourth, and fifth battery offenses on 22 De-
cember 2018 while at a local San Antonio hotel. Two of the offenses were
against adults and one was against a child. On this evening, Appellant, his
second wife, MO, and her family were attending a holiday party at the hotel,
where they had also rented a room. MO’s family included MO’s mother, MO’s
sister, and MO’s one-year-old daughter. Once in the hotel room, Appellant was
told by MO and her family to go to sleep, as he was intoxicated from consuming
alcohol earlier that night. Appellant became agitated and tried to leave the
hotel room. MO’s mother and sister were between Appellant and the hotel
room’s door. First, Appellant pushed MO’s mother on her body with his arms
causing her to move. Second, Appellant pushed MO’s sister in a similar manner
with a similar result. Third, and finally, Appellant pushed MO’s mother a sec-
ond time, which caused her to fall into MO’s sister, who then fell into MO’s one-
year-old daughter. According to Appellant, none of the three sustained any in-
juries.
The drunk and disorderly conduct offense also occurred on the same night
as described above and while at the hotel. Due to his intoxication, Appellant
was “loud and obnoxious” and “disruptive and rude” which led to an adjacent
guest complaining to the hotel’s staff. The hotel staff called the San Antonio
police who responded to Appellant’s room. Despite the arrival of uniformed of-
ficers, Appellant continued to be loud and belligerent which led the police to
detain him in handcuffs inside his hotel room. Appellant stated during the
providence inquiry that his actions “lowered the image of the Air Force to sev-
eral civilians” including MO’s family and the police officers who responded.
B. Extramarital Sexual Conduct and Obstruction of Justice
In the first few months of 2019, while still married to MO,7 Appellant met
a woman on the dating application Tinder. Eventually, this woman allowed
Appellant to move into her residence. She knew he was in the military. Appel-
lant’s supervisor discussed these living arrangements with Appellant and
warned him to be careful, as he was still married. Despite the warning, Appel-
lant began a sexual relationship with the woman and engaged in sexual inter-
course with her on multiple occasions in a month. Others learned of this sexual
7 Appellant was also not legally separated from MO.
5
United States v. Goldman, No. ACM 39939
relationship, including MO and the woman’s estranged husband.8 In his prov-
idence inquiry, Appellant provided reasons why he believed his actions were
service discrediting and constituted wrongful extramarital sexual contact.
At the time of this sexual relationship, Appellant believed that he would
face a criminal investigation for the December 2018 incidents with MO’s family
at the San Antonio hotel. Appellant’s commander had also issued him a no-
contact order, which prohibited communication with MO. Appellant thought
the ensuing investigation would reveal, and ultimately encompass, his sexual
relationship with the woman he met on Tinder. Appellant then asked her to
lie, if questioned, and say she had not had sex with him. Appellant explained
in his providence inquiry why he believed his actions constituted obstruction
of justice.
C. Drug Offense
Appellant wrongfully used marijuana, once, in a vehicle with another Air-
man on Joint-Base San Antonio (JBSA)-Lackland. This offense occurred in the
late May to late June 2019 timeframe. Appellant’s wrongful use of marijuana
was discovered when his urine tested positive for tetrahydrocannabinol, the
active ingredient in marijuana. On 23 June 2019, Appellant’s commander re-
stricted him to the limits of JBSA-Lackland.
D. Disobedience Offenses
Appellant failed to obey a lawful general regulation, Air Force Instruction
31-101, Integrated Base Defense (5 Jul. 2017), by failing to register a privately
owned firearm that he stored in his base house on JBSA-Lackland. This offense
was discovered in November 2018 when security forces responded to Appel-
lant’s house after Appellant displayed “suicidal ideations.” These included Ap-
pellant placing the loaded firearm against his head with his finger on the trig-
ger. Eventually, Appellant changed his mind, placed the firearm on top of a
printer, and went to bed before being awoken by security forces.
Appellant disobeyed two different orders of his commander between 1 April
2019 and 6 September 2019. First, Appellant disobeyed the order restricting
him to JBSA-Lackland in August 2019 when he left the installation with his
brother who had recently graduated from Basic Military Training. Appellant
also violated the no contact order prohibiting him from contacting his second
wife, MO, on at least two occasions in April and May 2019. Appellant was or-
dered by his commander into pretrial confinement on 6 September 2019 and
so remained, at various locations, until he was sentenced.
8 Appellant told the military judge the woman was legally separated from her husband
and that the husband was a former military member.
6
United States v. Goldman, No. ACM 39939
II. DISCUSSION
A. Plea Agreement Noncompliance
The parties agree that the EoJ and Statement of Trial Results9 do not show
that the convening authority dismissed either Charge IV and its specifications
or Specification 4 of Charge V with prejudice. Initially, Appellant requested
our court take corrective action by dismissing the affected charge and specifi-
cations with prejudice. However, in Appellant’s reply brief, the requested rem-
edy is a corrected EoJ to show the dismissal with prejudice occurred and con-
sistent with what our court did in Samples. See, unpub. op. at *5–11.
The Government requests we exercise our R.C.M. 1112(c)(2) authority and
modify the EoJ ourselves. The Government states that other Courts of Crimi-
nal Appeals have exercised their authority to amend EoJs “with some regular-
ity.” Our court was granted discretion to correct EoJs by the President in the
2019 MCM. It is obvious from the cases cited in the Government’s answer that
other Courts of Criminal Appeals have exercised this discretion. We disagree
with the Government that this is the “most appropriate remedy” in this partic-
ular case. We agree with Appellant’s proposed resolution and see no reason to
depart from the remand approach this court took in Samples.
A plea agreement in the military justice system establishes a constitutional
contract between the accused and the convening authority. See United States
v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (citing United States v. Lundy, 63
M.J. 299, 301 (C.A.A.F. 2006)) (addressing a pretrial agreement). “In a crimi-
nal context, the [G]overnment is bound to keep its constitutional promises.”
Lundy, 63 M.J. at 301. “When an appellant contends that the [G]overnment
has not complied with a term of the agreement, the issue of noncompliance is
a mixed question of fact and law.” Smead, 68 M.J. at 59 (citing Lundy, 63 M.J.
at 301). Appellant has the burden to establish both materiality and noncom-
pliance. Lundy, 63 M.J. at 302. “In the event of noncompliance with a material
term, we consider whether the error is susceptible to remedy in the form of
specific performance or in the form of alternative relief agreeable to the appel-
lant.” Smead, 68 M.J. at 59 (citation omitted).
The parties agree that the dismissal with prejudice provision of the plea
agreement was material to Appellant’s plea of guilty and the EoJ does not re-
flect that the convening authority complied with that provision. We agree that
9 Appellant also correctly notes that the Statement of Trial Results failed to include
the command that convened this court-martial as required by R.C.M. 1101(a)(3). Ap-
pellant does not raise an assignment of error. We find there is no prejudice from this
minor omission. See United States v. Moody-Neukom, No. ACM S32594, 2019 CCA
LEXIS 521, at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019) (unpub. op.) (per curiam).
7
United States v. Goldman, No. ACM 39939
the provision was material as it provided Appellant protection from facing later
prosecution for the charged offenses, which the convening authority agreed to
dismiss with prejudice. We find the convening authority complied with the pro-
vision as the military judge dismissed the affected charge and specifications,
on the record. However, the EoJ, which the military judge signed, does not
reflect the convening authority’s compliance or demonstrate the actions the
military judge took on the record. Therefore, as the failure to state that offenses
were dismissed with prejudice implies that they were dismissed without prej-
udice, we find a remand appropriate to correct the EoJ. See Samples, unpub.
op. at *5.
B. Additional EoJ Errors
On remand, a detailed military judge may also modify the EoJ to correct
the following errors:
 The EoJ incorrectly states the convening authority deferred
“all of the adjudged” forfeitures. First, the military judge ad-
judged no forfeitures. Second, the convening authority’s de-
cision on action memorandum correctly omitted any refer-
ence to adjudged forfeitures when addressing the question of
deferral.
 The convening authority deferred Appellant’s reduction to
the grade of E-1 from 14 days after announcement of sen-
tence until the date of the EoJ. The EoJ omits the convening
authority’s decision on deferral of reduction in grade.10 In-
stead, the EoJ repeats a statement, which is partially incor-
rect, regarding deferral of forfeitures.
 The convening authority waived the automatic forfeitures of
all pay and allowances for a period of six months or release
“of” confinement, whichever is sooner, and directed the for-
feitures be paid to MP for the benefit of Appellant’s depend-
ent child. However, the EoJ only states that the “pay” was
directed to be paid to MP, rather than the “total pay and al-
lowances.”
 The reprimand in the EoJ misspells United States Air Force.
It is correctly spelled in the convening authority’s decision on
action memorandum.
10 Appellant identified this error, but did not assert prejudice from it. We find it appro-
priate to authorize the error be corrected on remand.
8
United States v. Goldman, No. ACM 39939
C. Record of Trial Completeness
Appellant makes three claims that the record of trial is incomplete. We ad-
dress an additional deficiency in the audio recordings of the trial proceedings
we identified during our Article 66, UCMJ, review.
First, Appellant claims that three appellate exhibits are incomplete—Ap-
pellate Exhibit XIV, pages 9–11, Appellate Exhibit XVII, pages 28–29, and Ap-
pellate Exhibit XVIII, pages 39–40—because the pages are blank except for the
page numbers annotated on the bottom. The Government asserts that nothing
is missing because these pages were intentionally left blank. If a detailed mil-
itary judge determines the Government is correct, then pages may be substi-
tuted in the record to identify that the affected pages were “intentionally left
blank.” If a detailed military judge determines Appellant is correct, then the
military judge may attempt to reconstruct the affected portions of the appellate
exhibits or indicate that such a process cannot be completed.
Second, Appellant asserts that the record of trial is missing email rulings
made by the military judge on 21 January 2020 on a defense motion to dismiss
for violations of Article 10, UCMJ, 10 U.S.C. § 810, and a defense motion for
appropriate relief to release Appellant from pretrial confinement. On 13 Sep-
tember 2021, we granted the Government’s motion to attach a declaration from
the assistant trial counsel in Appellant’s case and a six-page email containing
the military judge’s rulings on the two motions.11 On remand, a detailed mili-
tary judge may follow the process in R.C.M. 1112(d)(2) to correct the record of
trial to add the email rulings made by the trial judge as an appellate exhibit.
Third, Appellant claims that his copy of the record of trial did not include
the court reporter’s certification. We granted the Government’s unopposed mo-
tion to attach a copy of the court reporter’s certification. However, in perform-
ing our review of the original record of trial docketed with the court, we note
that it already contained the court reporter’s certification in volume 7. As Ap-
pellant and his counsel received the court reporter’s certification when this
court granted the motion to attach, this claim of error does not require correc-
tive action on remand. We find this claim of error warrants no further discus-
sion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
In conducting our Article 66, UCMJ, review, we could not locate one audio
recording of one session of open court in the record of trial. R.C.M. 1112(b)(2)
11 The motion to attach was unopposed. We understand we are permitted to supple-
ment the record when deciding issues that are raised by the materials in the record
but are not fully resolvable by those materials. See United States v. Jessie, 79 M.J. 437,
440–42 (C.A.A.F. 2020). Here the military judge stated his intent to rule on these two
motions “ASAP” but his email rulings were not marked as an appellate exhibit.
9
United States v. Goldman, No. ACM 39939
requires a “substantially verbatim recording of the court-martial proceedings
except sessions closed for deliberations or voting.” The missing recording would
cover the proceedings conducted on 15 January 2020 beginning at 1110 hours
and ending at 1200 hours. This recording would correspond to pages 1–39 of
the certified transcript. On remand, a detailed military judge may follow the
process in R.C.M. 1112(d)(2) to correct the record of trial to add the omitted
recording. If the military judge determines that the recording is present in the
record of trial, but was mislabeled, then the disc that contains the recordings
of open sessions of the court may be modified accordingly.12
D. Convening Authority’s Decision on Action
Regarding Appellant’s third assignment of error, consistent with our supe-
rior court’s decision in United States v. Brubaker-Escobar, ___ M.J. ___, No. 20-
0345, 2021 CAAF LEXIS 818, at *1–2 (C.A.A.F. 7 Sep. 2021) (per curiam), we
find the convening authority made a procedural error when she failed to take
action on the entire sentence, as Appellant was found guilty of at least one
offense that occurred prior to 1 January 2019 and the charges were referred
after 1 January 2019. Rather than test that procedural error for material prej-
udice to a substantial right of Appellant, we authorize a detailed military judge
on remand to resolve the procedural error. This course of action is appropriate,
as we have already determined a remand is necessary to resolve Appellant’s
first assignment of error.
III. CONCLUSION
The record of trial is REMANDED to the Chief Trial Judge, Air Force Trial
Judiciary, for correction of the entry of judgment as noted above. Article 66(g),
UCMJ, 10 U.S.C. § 866(g); R.C.M. 1111(c)(3).
A detailed military judge may correct the record of trial under R.C.M.
1112(d) to address (1) the blank pages in three appellate exhibits, (2) the two
email rulings made by the military judge that were not included in the record
of trial, and (3) the missing audio recording of one session of open court.
A detailed military judge may return the record of trial to the convening
authority or her successor to take action on the sentence.
A detailed military judge may conduct one or more Article 66(f)(3), UCMJ,
10 U.S.C. § 866(f)(3), proceedings using the procedural rules for post-trial Ar-
ticle 39(a), UCMJ, 10 U.S.C. § 839(a), sessions.
12 The file names of the recordings include a date and time, none of which correspond
to the date and time of the session of court that we cannot locate.
10
United States v. Goldman, No. ACM 39939
Thereafter, the record of trial will be returned to the court for completion
of appellate review under Article 66(d), UCMJ.
Appellate counsel for the Government will inform the court not later than
15 March 2022, in writing, of the status of compliance with the court’s decree
unless the record of trial has been returned to the court prior to that date.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
11