United States v. Hepperman ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40065
________________________
UNITED STATES
Appellee
v.
Nathaniel R. HEPPERMANN
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 28 September 2022
________________________
Military Judge: Brett A. Landry.
Sentence: Sentence adjudged on 3 December 2020 by GCM convened at
Cannon Air Force Base, New Mexico. Sentence entered by military judge
on 22 December 2020: Dishonorable discharge, confinement for 18
months, forfeiture of all pay and allowances, reduction to E-1, and a
reprimand.
For Appellant: Captain David L. Bosner, USAF; Philip D. Cave, Esquire.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Joshua
M. Austin, USAF; Major John P. Patera, USAF; Mary Ellen Payne, Es-
quire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Judge RICHARDSON delivered the opinion of the court, in which Senior
Judge POSCH and Judge CADOTTE joined.
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PUBLISHED OPINION OF THE COURT
________________________
RICHARDSON, Judge:
United States v. Heppermann, No. ACM 40065
A general court-martial composed of a military judge sitting alone found
Appellant guilty, contrary to his pleas, of one specification each of solicitation
to distribute and solicitation to produce child pornography, in violation of Ar-
ticle 82, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 882; and one
specification of sexual abuse of a child by communicating indecent language,
in violation of Article 120b, UCMJ, 10 U.S.C. § 920b.1 Appellant was sentenced
to a dishonorable discharge, confinement for 18 months, forfeiture of all pay
and allowances, reduction to the grade of E-1, and a reprimand. The convening
authority took no action on the adjudged sentence.
Appellant raises the following issues on appeal: (1) whether the findings of
guilt for both solicitation specifications are legally and factually sufficient be-
cause (a) the person being solicited was not subject to the UCMJ, and (b) the
Government failed to prove extra language it added to the specifications; and
(2) whether the military judge abused his discretion in denying a defense mo-
tion to dismiss the charges and specifications for a violation of Rule for Courts-
Martial (R.C.M.) 707.2 We find no prejudicial error to a substantial right of
Appellant, and we affirm the findings and sentence.
I. BACKGROUND
Appellant met MT on a dating website when Appellant was 19 years old.
MT was 12 years old but told Appellant she was 13 years old. They communi-
cated primarily through Snapchat, a social media platform. Their conversa-
tions quickly became sexual. Around 29 March 2019, Appellant asked MT to
send him videos of her breasts and vagina. The next month, Appellant asked
MT to sodomize herself with a hairbrush and show him. Later, while MT was
with a friend, Appellant asked MT to insert her finger into her vagina while
her friend recorded it for him. Throughout their mostly sexually themed con-
versations, Appellant and MT referred to Appellant as “Daddy.”
Both MT’s mother and KV, MT’s mother’s cousin, saw the messages on
MT’s phone on 3 June 2019. KV messaged Appellant using MT’s phone, then
called to confront him, saying she was MT’s mother. Appellant lied about his
age, with whom he lived, and his military status. After KV asked to speak to
his supervisor, Appellant, who was on duty, handed his phone to a noncommis-
sioned officer (NCO), Staff Sergeant (SSgt) AD, who in turn listened to the
1 Unless otherwise noted, all references in this opinion to the UCMJ and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.)
(MCM).
2 Appellant advises in his brief that he seeks to challenge the military judge’s ruling
only with respect to R.C.M. 707, and not also the Fifth and Sixth Amendments to the
United States Constitution, U.S. CONST. amend. V, VI, as he did at trial.
2
United States v. Heppermann, No. ACM 40065
complaint from KV. After SSgt AD told KV he could not punish the Appellant,
he passed Appellant’s phone to RS, an NCO senior to SSgt AD. Appellant was
present while the NCOs spoke to KV on Appellant’s phone.
At trial, the Government called MT, KV, and SSgt AD. It also called Air
Force Office of Special Investigations (AFOSI) agents to detail their investiga-
tive steps. These steps included interviewing MT, MT’s mother, and KV; seiz-
ing MT’s two phones; and seizing Appellant’s electronic devices, including a
phone. The digital forensic expert who analyzed the seized phones also testi-
fied. He stated that MT had approximately 790 Snapchat messages between
her and Appellant saved on her phone.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at
trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (cit-
ing United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)), rev. denied,
___ M.J.___, No. 22-0111, 2022 CAAF LEXIS 278 (C.A.A.F. 12 Apr. 2022).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “[I]n resolving questions of legal
sufficiency, we are bound to draw every reasonable inference from the evidence
of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001) (citations omitted). The evidence supporting a conviction can
be direct or circumstantial. See United States v. Long, 81 M.J. 362, 368
(C.A.A.F. 2021) (citing R.C.M. 918(c)) (additional citation omitted). “[A] ra-
tional factfinder[ ] could use his ‘experience with people and events in weighing
the probabilities’ to infer beyond a reasonable doubt” that an element was
proven. Id. at 369 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
“The term reasonable doubt . . . does not mean that the evidence must be free
from conflict.” United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App.
2017) (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d,
77 M.J. 289 (C.A.A.F. 2018). The “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) (internal quotation marks and citation omitted).
3
United States v. Heppermann, No. ACM 40065
“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 rea-
sonable doubt.” Rodela, 82 M.J. at 525 (alterations, internal quotation marks,
and citation omitted). “In conducting this unique appellate role, we take ‘a
fresh, impartial look at the evidence,’ applying ‘neither a presumption of inno-
cence nor a presumption of guilt’ to ‘make [our] own independent determina-
tion as to whether the evidence constitutes proof of each required element be-
yond a reasonable doubt.’” Wheeler, 76 M.J. at 568 (alteration in original) (quot-
ing Washington, 57 M.J. at 399).
We review an issue of statutory construction de novo. United States v. Wil-
son, 76 M.J. 4, 6 (C.A.A.F. 2017). “It is a general rule of statutory construc-
tion that if a statute is clear and unambiguous—that is, susceptible to only one
interpretation—we use its plain meaning and apply it as written.” United
States v. Schmidt, 82 M.J. 68, 73 (C.A.A.F. 2022) (Sparks, J., announcing the
judgment of the court) (citing United States v. Kohlbek, 78 M.J. 326, 331
(C.A.A.F. 2019)). “We may also resort to case law to resolve any ambiguity, alt-
hough fundamentally case law must comport with the statute, not vice versa.”
Id. (alteration, internal quotation marks, and citation omitted).
The text of the UCMJ article proscribing solicitation states: “Any person
subject to this chapter who solicits or advises another to commit an offense
under this chapter (other than an offense specified in subsection (b))[3] shall be
punished as a court-martial may direct.” Article 82(a), UCMJ, 10 U.S.C.
§ 882(a) (emphasis added).
The President promulgated the maximum punishment for Article 82(a),
UCMJ, as follows:
Any person subject to the UCMJ who is found guilty of soliciting
or advising another person to commit an offense not specified in
Article 82(b) that, if committed by one subject to the UCMJ,
would be punishable under the UCMJ, shall be subject to the
following maximum punishment: dishonorable discharge, forfei-
ture of all pay and allowances, and confinement for 10 years, or
the maximum punishment of the underlying offense, whichever
is lesser.
Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV, ¶ 6.d.(3)
(emphasis added).
3 Article 82(b), UCMJ, 10 U.S.C. § 882(b), proscribes the solicitation of desertion, mu-
tiny, sedition, and misbehavior before the enemy.
4
United States v. Heppermann, No. ACM 40065
The President promulgated elements for the offense of solicitation under
Article 82, UCMJ, as follows:
(1) That the accused solicited or advised a certain person or per-
sons to commit a certain offense under the UCMJ; and
(2) That the accused did so with the intent that the offense actu-
ally be committed.
MCM, pt. IV, ¶ 6.b.(1)–(2). The first two elements for the offense of solicitation
under Article 134, UCMJ, Manual for Courts-Martial (2016 ed.) (2016 MCM),
pt. IV, ¶ 105.b.(1)–(2), were nearly identical to the present offense of solicita-
tion under Article 82, UCMJ.4 “[W]e are not bound by the President’s interpre-
tation of the elements of substantive offenses.” Wilson, 76 M.J. at 6 (citing
United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998)). However, the Presi-
dent’s interpretations of offenses are persuasive authority. See United States
v. Forrester, 76 M.J. 389, 396 (C.A.A.F. 2017) (citation omitted).
The elements of solicitation to distribute child pornography, as alleged in
Specification 1 of Charge I, include that: (1) Appellant wrongfully solicited MT
to commit the offense of distribution of child pornography, an offense under the
UCMJ; and (2) Appellant did so with the intent that the distribution of child
pornography actually be committed. See MCM, pt. IV, ¶ 6.b.(1)–(2). As drafted,
the specification also alleged that: (3) Appellant’s solicitation was of a nature
to bring discredit upon the armed forces.5 Similarly, the elements of solicitation
to produce child pornography, as alleged in Specification 2 of Charge I, include
that: (1) Appellant wrongfully solicited MT to commit the offense of production
of child pornography, an offense under the UCMJ; and (2) Appellant did so
with the intent that the production of child pornography actually be commit-
ted, see id.; with the additional language that (3) Appellant’s solicitation was
of a nature to bring discredit upon the armed forces.
The elements of the offenses of distribution of child pornography and pro-
duction of child pornography, in violation of Article 134, UCMJ, 10 U.S.C.
§ 934, are similar: (1) the accused knowingly and wrongfully produced, or dis-
tributed to another, child pornography; and (2) under the circumstances, the
4 The significant difference is a clarification that the crime solicited does not include
one of the four offenses named in Article 82(b), UCMJ, of the 2019 MCM. The third
and last element included the terminal elements of Article 134, UCMJ, which were not
carried into Article 82(a), UCMJ.
5 In its answer to Appellant’s assignments of error, the Government acknowledges that
this was an element of the offenses “due to the charge as crafted in this case.” There-
fore, we assume without deciding that the Government was required to prove the al-
leged language, even though not required by the UCMJ.
5
United States v. Heppermann, No. ACM 40065
accused’s conduct was (a) to the prejudice of good order and discipline in the
armed forces, and or (b) was of a nature to bring discredit to the armed forces.
MCM, pt. IV, ¶ 95.b.(3)–(4).
The offense allegedly solicited must have been one that could possibly be
committed by the solicited person. See United States v. Sutton, 68 M.J. 455,
459 (C.A.A.F. 2010) (finding that a child lifting her shirt to expose her breasts
upon the appellant’s request “could not constitute the criminal offense of inde-
cent liberties with a child by [that child],” as alleged). ‘“Child pornography’
means material that contains either an obscene visual depiction of a minor
engaging in sexually explicit conduct or a visual depiction of an actual minor
engaging in sexually explicit conduct.” MCM, pt. IV, ¶ 95.c.(4). The term “sex-
ually explicit conduct” includes, inter alia, actual or simulated sodomy, mas-
turbation, and “lascivious exhibition of the genitals or pubic area of any per-
son.” MCM, pt. IV, ¶ 95.c.(10). ‘“Distributing’ means delivering to the actual or
constructive possession of another.” MCM, pt. IV, ¶ 95.c.(6). ‘“Producing’
means creating or manufacturing.” MCM, pt. IV, ¶ 95.c.(9). Conduct of a na-
ture to bring discredit upon the armed forces is conduct which “has a tendency
to bring the service into disrepute or [ ] tends to lower it in public esteem.”
MCM, pt. IV, ¶ 91.c.(3).
Until recently, solicitation was an enumerated offense under Article 134,
UCMJ.6 The offense of solicitation under Article 134, UCMJ (2016 MCM), re-
quired as an element that the accused’s conduct be to the prejudice of good
order and discipline or of a nature to bring discredit upon the armed forces. See
2016 MCM, pt. IV, ¶ 105.b.(3). Regarding that offense, “[i]n our court, it is set-
tled law that ‘the solicitation of another person to commit an offense which, if
committed by one subject to the UCMJ, would be punishable under the UCMJ,
is an offense cognizable under Article 134[, UCMJ].’” United States v. Lozicki,
No. ACM 39643, 2020 CCA LEXIS 469, at *28 n.14 (A.F. Ct. Crim. App. 28
Dec. 2020) (unpub. op.) (alteration in original) (quoting United States v. Knarr,
80 M.J. 522, 530 n.6 (A.F. Ct. Crim. App. 2020), rev. denied, 80 M.J. 348(C.A.A.F. 2020)), rev. denied, 81 M.J. 236 (2021). The court in Lozicki consid-
ered the offense of solicitation to produce child pornography in violation of Ar-
ticle 134, UCMJ (2016 MCM). Id. at *1. The court in Knarr considered the
offense of solicitation to distribute child pornography in violation of Article 134,
UCMJ (2016 MCM). Knarr, 80 M.J. at 526.
2. Analysis
6 See MCM, App. 17, at A17-1 ¶ 6 (explaining how solicitation under Article 134,
UCMJ, in the previous version of the Manual for Courts-Martial now is incorporated
in Article 82(a), UCMJ).
6
United States v. Heppermann, No. ACM 40065
a. Scope of Article 82, UCMJ
The question presented here is whether the person being solicited must be
subject to the UCMJ to sustain a conviction under Article 82(a), UCMJ. We
focus our review on the direct legislative and executive language, as well as
case law.7
Appellant recognizes that, as interpreted by case law, the offense of solici-
tation when it was enumerated by the President under Article 134, UCMJ, did
not require the person solicited to be subject to the UCMJ. Appellant argues
that the offense of solicitation now under Article 82, UCMJ, does carry that
requirement:
In Article 82, UCMJ, Congress chose specifically the words to
delineate that criminal solicitations are those that solicit “of-
fenses under the UCMJ.” 2019 MCM, Pt. IV, para. 6(b)(1). To the
extent old case law provides a rule to the contrary, those cases
are not viable in line with the plain text of the statute Congress
recently created.
Appellant infers the President had a similar understanding. Appellant argues
the President could have written the first element of Article 82(a), UCMJ, to
include “soliciting or advising someone to commit any act under the code that
would be a violation of the UCMJ if the solicited or advised entity was subject
to this chapter,” but did not. Appellant concludes: “Because Congress and the
President crafted language indicating the solicitation must be one to ‘commit
an offense under the UCMJ,’ that is what is factually and legally required.”
Appellant also addresses the language in the MCM outlining the maximum
punishment for one found guilty of “soliciting or advising another person to
commit an offense . . . that, if committed by one subject to the UCMJ, would be
punishable under the UCMJ.” MCM, pt. IV, ¶ 6.d.(3). Appellant claims this
language is “commentary” and “discussion” by “the drafters” of the MCM; he
does not attribute it to the President. Regardless, he argues Congress could
have put that language in the statute, and it did not. He argues Congress
crafted Article 82, UCMJ, to “criminalize [ ] soliciting or advising military
members to commit offenses under the UCMJ,” and “likely did not seek to deter
future criminal activity of all Americans with the [UCMJ].” (Footnote omitted.)
7 Appellant has not cited any express legislative history. Indeed, the legislative history
reveals an intent merely to consolidate the general solicitation offense under Article
134 into Article 82 as part of a larger reorganization of the punitive articles of the
UCMJ. See S. REP. NO. 114-255, at 613 §§ 5301, 5303 (2016); H.R. REP. NO. 114-537,
at 612 §§ 6901, 6903 (2016).
7
United States v. Heppermann, No. ACM 40065
Appellant has not convinced this court that the offense of solicitation under
Article 82(a), UCMJ, requires that the person solicited be subject to the UCMJ.
First, looking at the plain language, Article 82(a) requires that a person subject
to the UCMJ solicit “another to commit an offense” under the UCMJ—not so-
licit another person subject to the UCMJ to commit an offense under the UCMJ.
Second, Appellant cites no authority—and we find none—that Congress in-
tended to change the offense of solicitation previously enumerated under Arti-
cle 134, UCMJ, to add such a requirement.8 Next, assuming that the statute’s
language is ambiguous, we find convincing the rationale of the case law ad-
dressing this issue in the context of solicitation before it was codified in Article
82, UCMJ. 9 The essence of the offense of solicitation is the invitation to engage
in criminal conduct. See, e.g., United States v. Davis, 39 M.J. 1110, 1112
(A.F.C.M.R. 1994); United States v. Gonzales, 19 M.J. 951, 952 (A.F.C.M.R.
1985); United States v. Hanner, No. ACM S28497, 1993 CMR LEXIS 61, at *5
(A.F.C.M.R. 28 Jan. 1993) (unpub. op.). Appellant did just that—he asked an-
other person to engage in acts that our laws have deemed to be criminal con-
duct.
Finally, we are persuaded by the President’s language addressing the max-
imum punishment authorized for a violation of Article 82(a), UCMJ, which
plainly anticipates the person being solicited may or may not be subject to the
UCMJ.10 We hold that the solicitation of another person to commit an offense
that, if committed by one subject to the UCMJ, would be punishable under the
UCMJ, is an offense cognizable under Article 82(a), UCMJ.
b. “Of a nature to bring discredit”
The solicitation offenses in this case were charged under Article 82(a),
UCMJ, but included an element used in Clause 2 of Article 134, UCMJ: that
the conduct “was of a nature to bring discredit upon the armed forces.” See
8 “Service courts have routinely rejected” arguments that the person solicited must be
subject to the UCMJ. United States v. Wiley, No. 201600120, 2017 CCA LEXIS 538, at
*41 (N.M. Ct. Crim. App. 10 Aug. 2017) (unpub. op.). In its reorganization and consol-
idation of solicitation offenses into Article 82(a), UCMJ, Congress could have indicated
it was changing the offense in response to how the courts have interpreted this lan-
guage for decades, but it did not. See United States v. Blanks, 77 M.J. 239, 242
(C.A.A.F. 2018) (noting that Congress can amend a statute to depart from judicial in-
terpretations, and that its failure to do so enhances the precedential force of those
interpretations).
9 Our approach is not novel. See United States v. Mitchell, 15 M.J. 214, 217 (C.M.A.
1983) (“There is no logical distinction to be made between Articles 82 and 134 in terms
of the specific intent required to prove the crime of solicitation.”).
10 The President’s interpretation of substantive offenses in Part IV of the MCM is per-
suasive but not binding authority. See Forrester, 76 M.J. at 395–96 (citations omitted).
8
United States v. Heppermann, No. ACM 40065
MCM, pt. IV, ¶ 91.b.(2). Appellant argues that case law relating to proof of that
element should not apply to the specifications in his case, charged under Arti-
cle 82(a), UCMJ. Specifically, he argues we should not apply United States v.
Phillips, 70 M.J. 161 (C.A.A.F. 2011).
In Phillips, the United States Court of Appeals for the Armed Forces
(CAAF) found that for an offense charged in violation of Clause 2 of Article 134,
UCMJ, “proof of the conduct itself may be sufficient for a rational trier of fact
to conclude beyond a reasonable doubt that, under all the circumstances, it was
of a nature to bring discredit upon the armed forces.” Id. at 163. Appellant
claims that, in this case charged in violation of Article 82, UCMJ, the factfinder
could not just infer from the facts and circumstances surrounding the offense
that the Clause 2 language was met beyond a reasonable doubt, but had to be
presented with direct evidence. Moreover, Appellant claims the only evidence
presented on this issue in his case was that Appellant’s conduct did not bring
discredit upon the armed forces.
Appellant points to this exchange during cross-examination between trial
defense counsel and KV:
Q. Ma’am, let me just ask you, you have a respect for the mili-
tary, right?
A. Yes.
Q. You respect the Air Force.
A. Absolutely.
Q. And this incident doesn’t make you respect the military and
the Air Force any less, right?
A. Can you rephrase that? Sorry. What do you mean?
Q. So, knowing about these messages doesn’t make you respect
the military any less?
A. Oh, no. I have the same respect for the military.[11]
11 Earlier, during direct examination, trial counsel asked KV what “emotional reaction”
she had to reading the messages between Appellant and MT. She replied, “Yeah, I’m
disgusted.” Trial defense counsel objected based on relevance. Trial counsel asserted
the question was for effect on the listener; she did not assert the question was to prove
the service-discrediting nature of the solicitations. The military judge sustained the
objection. While this excluded evidence would have been relevant to whether Appel-
lant’s conduct was of a nature to bring discredit, we do not consider it in performing
our review of this case. See United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F. 2006)
(noting the Courts of Criminal Appeals may not consider evidence excluded at trial in
performing their appellate review function under Article 66, UCMJ).
9
United States v. Heppermann, No. ACM 40065
“Whether any given conduct [is service discrediting] is a question for the
trier of fact to determine, based upon all the facts and circumstances; it cannot
be conclusively presumed from any particular course of action.” Phillips, 70
M.J. at 165. “[T]he degree to which others became aware of the accused’s con-
duct may bear upon whether the conduct is service discrediting,” but actual
public knowledge is not a prerequisite. Id. at 166. “The trier of fact must deter-
mine beyond a reasonable doubt that the conduct alleged actually occurred and
must also evaluate the nature of the conduct and determine beyond a reason-
able doubt that [the appellant]’s conduct would tend to bring the service into
disrepute if it were known.” Id. (citing United States v. Saunders, 59 M.J. 1, 11
(C.A.A.F. 2003)).
The military judge was presented with KV’s views, but he was not required
to accept them. See United States v. Birdsall, 47 M.J. 404, 410 (C.A.A.F. 1998)
(recognizing the function of a jury is to weigh evidence and determine credibil-
ity). We note KV’s testimony on this point was left unexplored; she was not
asked why her respect for the military at the time of Appellant’s court-martial
was not affected by “this incident.” Moreover, as the factfinder, the military
judge could consider other evidence in determining whether Appellant’s con-
duct tended to discredit the service, including the content of the messages
alone. See United States v. Anderson, 60 M.J. 548, 555 (A.F. Ct. Crim. App.
2004) (finding, after its review of graphic images of child pornography, that
they “remove any reasonable doubt that they are . . . of a nature to bring con-
siderable discredit upon the armed forces”); see also United States v. Richard,
___ M.J. ___, No. 22-0091, 2022 CAAF LEXIS 637, at *10–11, 15 (C.A.A.F.
7 Sep. 2022) (in a case involving Article 134, UCMJ, finding evidence that only
tends to prejudice good order and discipline is not sufficient proof of that ele-
ment, and suggesting it may be sufficient proof of conduct of a nature to bring
discredit upon the armed forces). We find the military judge had a sufficient
basis from the evidence introduced at trial to determine beyond a reasonable
doubt that Appellant’s conduct was of a nature to bring discredit upon the
armed forces.
We conclude that a rational factfinder could have found beyond a reasona-
ble doubt all the elements12 of Appellant’s convicted offenses, including their
12 We find some support for an argument that the Clause 2 language was not an essen-
tial element of the solicitation offenses the Government needed to prove beyond a rea-
sonable doubt. “An allegation in the specification which is unnecessary to prove the
offense and does not contradict any material allegation can generally be disregarded
as surplusage.” United States v. Duke, 37 C.M.R. 80, 84 (C.M.A. 1966) (citations omit-
ted); see also United States v. Miller, 471 U.S. 130, 136 (1985) (“A part of the indictment
unnecessary to and independent of the allegations of the offense proved may normally
10
United States v. Heppermann, No. ACM 40065
service-discrediting nature. Furthermore, after weighing all the evidence in
the record of trial and having made allowances for not having personally ob-
served the witnesses, we are convinced of Appellant’s guilt beyond a reasonable
doubt. Therefore, we find Appellant’s convictions both legally and factually suf-
ficient.
B. Speedy Trial Pursuant to R.C.M. 707
1. Additional Facts
On 6 June 2019, Appellant’s commander restricted him to base and from
certain places on base where he was more likely to encounter children. On
4 October 2019, without providing Appellant advance notice, the Government
requested the convening authority exclude time under R.C.M. 707 for the pe-
riod 25 June 2019 to 4 October 2019—101 days. During this period, AFOSI
agents sent seized electronic devices for analysis, and the analyses were either
completed or in progress. On 7 October 2019—day 123 of Appellant’s re-
striction to limits—the convening authority approved the request. Appellant
was released from the restriction on 6 December 2019, after 183 days. Charges
were preferred against Appellant on 21 April 2020.
Before trial, Appellant filed a motion to dismiss the charges and specifica-
tions as a remedy for violation of Appellant’s rights to a speedy trial. Appellant
alleged the Government violated his rights afforded by R.C.M. 707, and that
this violation implicated Appellant’s Fifth and Sixth Amendment13 rights, re-
quiring dismissal with prejudice. Additionally or alternatively, Appellant ar-
gued that if the trial court found no constitutional violation, his requested rem-
edy for the R.C.M. 707 violation was dismissal without prejudice. The trial
judge denied Appellant’s motion. He found that
The crux of the [D]efense’s argument alleges an R.C.M. 707 vio-
lation dating from the accused’s restriction to Cannon [Air Force
Base]. Specifically, the [D]efense takes issue with a previous ex-
clusion of time granted by the [special court-martial convening
authority] (from 25 Jun[e 20]19 – 4 Oct[ober 20]19) in regard to
the calculation of days under R.C.M. 707(a) dating from the im-
position of pretrial restraint against the accused on 6 Jun[e
20]19. As is made clear by R.C.M. 707(b)(3)(B), this argument is
be treated as a ‘useless averment’ that ‘may be ignored.’” (quoting Ford v. United
States, 273 U.S. 593, 602 (1927))); cf. United States v. English, 79 M.J. 116, 120
(C.A.A.F. 2019) (finding the Government was required to prove facts that it alleged
which “narrowed the scope of the charged offense,” specifically the type of force used
in the assault).
13 U.S. CONST. amend. V, VI.
11
United States v. Heppermann, No. ACM 40065
moot in regard to calculation of the current R.C.M. 707(a) clock.
The [c]ourt finds that a significant period elapsed between the
accused’s release from pre-trial restraint on 6 December 2019
and preferral of charges on 21 April 2020. This had the legal ef-
fect of beginning a new R.C.M. 707(a) clock beginning on the
date of preferral of charges. Since only 72 days elapsed on the
R.C.M. 707 clock that ran from 21 April 2020 until the accused
was arraigned, there is no speedy trial violation under R.C.M.
707.
The military judge also found that even if the speedy trial clock was not
“reset,” “no relief [was] warranted” under the Sixth Amendment and no Gov-
ernment action in this case “would give rise to a Fifth Amendment violation.”
In his analysis, the military judge found “the [G]overnment’s reasons for the
delay [from 25 June 2019 until arraignment] cannot be attributed to neglect or
a lack of due diligence in processing the case” and most of the days were
“largely attributable to delays resulting from difficulties accessing the forensic
digital evidence that would appear to make up the majority of the [G]overn-
ment’s case.”
2. Law
“Whether an appellant received a speedy trial is a question we review de
novo.” United States v. Fujiwara, 64 M.J. 695, 697 (A.F. Ct. Crim. App. 2007)
(citations omitted). “We give substantial deference to findings of fact made by
the military judge and will not overturn such findings unless they are clearly
erroneous.” Id. (citations omitted). A military accused may seek relief for al-
leged speedy trial violations under R.C.M. 707. See United States v. Tippit, 65
M.J. 69, 73 (C.A.A.F. 2007); Fujiwara, 64 M.J. at 697.
“The accused shall be brought to trial within 120 days after . . . [t]he impo-
sition of restraint under R.C.M. 304(a)(2)–(4).” R.C.M. 707(a)(2). The form of
restraint includes restriction in lieu of arrest, arrest, and confinement; it does
not include conditions on liberty. R.C.M. 304(a)(1)–(4). “Restriction in lieu of
arrest is the restraint of a person by oral or written orders directing the person
to remain within specified limits,” to include restriction to base. R.C.M.
304(a)(2). When “the accused is released from pretrial restraint for a signifi-
cant period, the 120-day time period under this rule shall begin on the earlier
of” the date of preferral of charges or the date of reimposition of pretrial re-
straint. R.C.M. 707(b)(3)(B)(i)–(ii).14
14 R.C.M. 707(b)(3)(B)(iii) contains another trigger—entry on active duty under R.C.M.
201—which is not relevant to our analysis in the present case.
12
United States v. Heppermann, No. ACM 40065
A violation of R.C.M. 707(a)(2) “will result in dismissal of the affected
charges.” R.C.M. 707(d). “Dismissal will be with or without prejudice to the
[G]overnment’s right to reinstitute court-martial proceedings against the ac-
cused for the same offense at a later date.” R.C.M. 707(d)(1).
R.C.M. 707 “does not preclude after-the-fact approval of a delay by a con-
vening authority that otherwise meets good-cause and reasonableness-in-
length standards.” United States v. Thompson, 46 M.J. 472, 475 (C.A.A.F.
1997). Also, R.C.M. 707 does not preclude the convening authority from ap-
proving an ex parte request for a delay; it is the non-binding Discussion that
recommends delays should not be granted ex parte. See R.C.M. 707(c)(1), Dis-
cussion. “The discussion does not elaborate on the nature of this [recommen-
dation], and [precedential] case law has not addressed the significance of this
discussion.”15 United States v. Richards, 2016 CCA LEXIS 285, *93–94 (A.F.
Ct. Crim. App. 2 May 2016) (unpub. op.). The Government in Thompson had
requested exclusion of time ex parte and post hoc; the CAAF addressed the lat-
ter and not the former. Thompson, 46 M.J. at 475.
3. Analysis
In his brief to this court, Appellant narrows the R.C.M. 707 issue to “the
183 days of restraint Appellant served between 6 June 2019 and 6 December
2019.” Appellant asks that we set aside and dismiss the charges without prej-
udice because Appellant was not released from his restrictions within 120 days,
and those days the convening authority excluded under R.C.M. 707(c) should
be counted because the Government obtained the exclusion ex parte and post
hoc. We find the military judge did not err in denying the Defense’s motion to
dismiss.
First, we consider and reject Appellant’s argument that the convening au-
thority’s excusal of time under R.C.M. 707 was an abuse of discretion. The con-
vening authority had a reasonable basis to exclude the requested 101 days. We
find the military judge’s findings of fact on this point are supported by the rec-
ord: that the delay “cannot be attributed to neglect or a lack of due diligence in
15 Over the years, service courts have commented on this issue in unpublished opin-
ions. See, e.g., United States v. Bodoh, ARMY 20150218, 2018 CCA LEXIS 81, at *19
(A. Ct. Crim. App. 16 Feb. 2018) (unpub. op.) (only the non-binding Discussion to
R.C.M. 707(c) recommends notice), aff’d in part and reversed in part on other grounds,
78 M.J. 231 (C.A.A.F. 2019); United States v. Torres, ARMY 20111168, 2014 CCA
LEXIS 180, at *13 (A. Ct. Crim. App. 19 Mar. 2014) (unpub. op.) (the Discussion to
R.C.M. 707(c) is non-binding); United States v. Williams, No. ACM 35122, 2004 CCA
LEXIS 49, at *8–9 (A.F. Ct. Crim. App. 20 Feb. 2004) (unpub. op.) (holding the notice
requirement is not contained in R.C.M. 707(c) and its Discussion is non-binding, and
therefore any procedural error was harmless).
13
United States v. Heppermann, No. ACM 40065
processing the case” and most of the days were “largely attributable to delays
resulting from difficulties accessing the forensic digital evidence” the Govern-
ment relied on to prove its case. Additionally, while arguably not the best prac-
tice, the convening authority is not required to first seek input from an accused
before excluding time, and may exclude time that already has passed. See
Thompson, 46 M.J. at 475.
Next, we address Appellant’s contention that because he was not released
from pretrial restrictions within 120 days of their imposition, charges that fi-
nally were preferred over four months after the restraint ended should be dis-
missed without prejudice. Appellant argues that “[t]he ‘significant period’ in
R.C.M. 707(b)(3)(B) is more plausibly read to reset speedy trial clocks when an
accused is released before the clock runs,” and that “[a]fter it has run, R.C.M.
707(d) applies and the case shall be dismissed”—adding “[t]he only question is
with or without prejudice.” Appellant cites no law squarely supporting these
propositions.
We understand Appellant’s argument to be that the “clock” is not simply
reset, but that the previous time on that clock is saved because it ran over 120
days, and that under R.C.M. 707, Appellant therefore is entitled to relief. We
find no legal support for this argument. To the contrary, R.C.M. 707 does not
require that “the period of any earlier restraint be added to the period after
[preferral] of charges when calculating the 120-day period, regardless of
whether a significant period of time elapses between the release from restraint
and the [preferral] of charges.” United States v. Ruffin, 48 M.J. 211, 213
(C.A.A.F. 1998) (citing United States v. Facey, 26 M.J. 421, 424 (C.M.A. 1988)).
The R.C.M. 707 120-day “clock” leading to arraignment starts at the earlier
of (1) imposition of pretrial restraint without a significant period of release
therefrom, (2) reimposition of pretrial restraint when a significant period
elapsed after an accused’s release therefrom, or (3) preferral of charges. See
Ruffin, 48 M.J. at 212. In Ruffin, the appellant was released from pretrial re-
straint one day before charges were preferred, and no additional restraint was
imposed. Id. at 213. The CAAF found that (1) and (2) did not apply, and specif-
ically that the time between the appellant’s release from restraint and his ar-
raignment was a “significant period” under R.C.M. 707.16 Id. Similarly, in this
case (1) and (2) do not apply; Appellant was released from pretrial restraint
and restraint was not reimposed. The R.C.M. 707 speedy-trial clock began on
the date of preferral of charges against Appellant. See Facey, 26 M.J. at 424(finding that “since no new restraint was imposed” after release from restraint,
16 The meaning of “significant period” under R.C.M. 707 was not between release from
restraint and preferral of charges (one day), but between release from restraint and
arraignment (over five months). Ruffin, 48 M.J. at 212.
14
United States v. Heppermann, No. ACM 40065
“the new 120-day period would commence when the charges were preferred”).
The military judge did not err in finding that the applicable speedy-trial clock
began at preferral of charges and a significant period lapsed after Appellant’s
release from pretrial restraint. We find that Appellant is not entitled to relief
under R.C.M. 707.
III. CONCLUSION
The findings and sentence entered are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).17 Accordingly, the findings
and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
17 “Though not raised as a separate assignment of error,” Appellant asserts that the
Statement of Trial Results and the entry of judgment “list Specification Codes at-
tendant to Article 134, UCMJ,” and not Article 82, UCMJ. Appellant articulates no
error, but asserts correction is warranted. We take no action to correct these alleged
errors. See United States v. Baratta, 77 M.J. 691, 695 (N.M. Ct. Crim. App. 2018).
15