United States v. Cadavona ( 2022 )


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  •              U NITED S TATES A IR F ORCE
    C OURT OF C RIMINAL APPEALS
    ________________________
    No. ACM 40129
    ________________________
    UNITED STATES
    Appellee
    v.
    Ian J.B. CADAVONA
    Senior Airman (E-4), U.S. Air Force, Appellant
    ________________________
    Appeal from the United States Air Force Trial Judiciary
    Decided 23 September 2022
    ________________________
    Military Judge: James R. Dorman
    Sentence: Sentence adjudged 25 March 2021 by GCM convened at
    Kadena Air Base, Japan. Sentence entered by military judge on 21 April
    2021: Bad-conduct discharge, confinement for 7 months, and reduction
    to E-1.
    For Appellant: Lieutenant Colonel Todd J. Fanniff, USAF; Major Stuart
    J. Anderson, USAF; Major Spencer R. Nelson, USAF.
    For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major John
    P. Patera, USAF; Captain Jocelyn Q. Wright, USAF; Mary Ellen Payne,
    Esquire.
    Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military
    Judges.
    Judge MEGINLEY delivered the opinion of the court, in which Senior
    Judge KEY 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    This is an unpublished opinion and, as such, does not serve as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. Cadavona, No. ACM 40129
    MEGINLEY, Judge:
    Contrary to his pleas, a general court-martial comprised of a military judge
    sitting alone convicted Appellant of one specification of indecent recording and
    one specification of indecent distribution of a recording, both in violation of
    Article 120c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920c; and
    one specification of obstruction of justice, in violation of Article 131b, UCMJ,
    10 U.S.C. § 931b.1 The court-martial sentenced Appellant to a bad-conduct dis-
    charge, confinement for seven months, and reduction to the grade of E-1.2 The
    convening authority took no action on the sentence.
    Appellant raises a single issue on appeal: whether trial counsel engaged in
    prosecutorial misconduct by making improper arguments during sentencing.
    Finding no error that has materially prejudiced the substantial rights of Ap-
    pellant, we affirm the findings and sentence.3
    I. BACKGROUND
    Appellant entered active duty service in December 2016 and was stationed
    at Kadena Air Base (AB), Japan, at the time of his offenses. The facts of this
    case begin between March and May of 2019, when Senior Airman (SrA) DT
    met GK, the victim in this case, and began a sexual relationship with her
    shortly thereafter.4 On 2 August 2019, SrA SD held a birthday party at his
    1 Unless otherwise noted, references to the UCMJ are to the Manual for Courts-Mar-
    tial, United States (2019 ed.). Appellant was found not guilty of two specifications of
    sexual assault, in violation of Article 120, UCMJ, 
    10 U.S.C. § 920
    , and an additional
    specification of obstruction of justice.
    2 For his offense of indecent recording, Appellant received four months’ confinement.
    For his offense of indecent distribution of a recording, Appellant received seven
    months’ confinement. For his offense of obstruction of justice, Appellant received two
    months’ confinement. Pursuant to the military judge’s sentence, all of these periods of
    confinement were concurrent with each other.
    3 During its review of the record of trial, the court noticed, based on trial defense coun-
    sel’s clemency submission, that clemency documents from Appellant might be missing.
    Accordingly, on 28 July 2022, this court ordered the Government to show good cause
    why the record of trial should not be remanded for completion and correction of the
    record. On 18 August 2022, the Government responded to the order, and concurrently
    filed a motion to attach an affidavit from trial defense counsel. In the affidavit, trial
    defense counsel stated she submitted a clemency request on behalf of her client, but
    that Appellant did not submit a separate memorandum for consideration by the con-
    vening authority. Appellant did not oppose the motion to attach. Having reviewed the
    record of trial and the Government’s response on this issue, we consider this matter
    resolved.
    4 GK was an active duty service member at this time.
    2
    United States v. Cadavona, No. ACM 40129
    dorm; GK, SrA DT, and Appellant were among the attendees and each con-
    sumed a large amount of alcohol during the course of the night. Prior to 2 Au-
    gust 2019, GK had never met Appellant. SrA DT testified that he and Appel-
    lant were co-workers and that he did not have an extensive personal relation-
    ship with Appellant, in that they did not “really hang out much.”
    As the night wore on, the party shifted to SrA DT’s dorm room. Eventually
    everyone left SrA DT’s room except for SrA DT, GK, and Appellant. Earlier,
    Appellant had asked SrA DT if he could stay the night at his room because
    Appellant had been drinking; SrA DT had agreed. At some point, GK sat next
    to SrA DT and Appellant on the couch. During her testimony, GK testified she
    remembered “talking a little” with SrA DT, and “laying down on the couch so
    [her] head was in [SrA DT]’s lap.” GK testified Appellant was at the end of the
    couch and she “guess[ed]” her legs were over Appellant. GK then pulled SrA
    DT’s head down and kissed him. However, GK remembered Appellant kept
    trying to touch her vagina and that she kept “pushing his hands away.” GK
    testified that she eventually got up and went to her dorm room across the hall
    with SrA DT, where they had consensual sex.
    The next morning, SrA DT woke up and saw Appellant “looking at his
    phone, kind of stressed out, kind of like uneasy.” SrA DT asked him what was
    wrong, and Appellant told SrA DT, “I think we f[**]ked up last night.” SrA DT
    testified Appellant told him they had sent messages and videos on a Snapchat
    group chat called Alcoholics Anonymous, of which they were members, of their
    encounter with GK the night before; and that they had posted videos of Appel-
    lant “performing [oral] sex and digital penetration on [GK],” among other vid-
    eos and pictures.5 Appellant also told SrA DT that the night before when
    SrA DT was with GK, Appellant had answered a video call. Appellant and SrA
    DT decided to leave the group chat, and Appellant told SrA DT to delete any-
    thing he might have on his phone. GK was not a member of the group chat.6
    That same morning, GK “started getting messages from different people,
    just saying that [they] needed to talk,” including SrA CF, whom she did not
    know. GK also had a conversation with Appellant and SrA DT, during which
    SrA DT told her that Appellant “accidentally answered a FaceTime call and
    5 Snapchat is a social media application.
    6 SrA CF, a witness for the Government, described the Snapchat group chat as follows:
    So basically like for the groups, anybody can send pictures or messages.
    Usually, the pictures disappear the first time you look at them. You
    can replay them if you don’t exit out of that specific chat. However,
    once you leave the chat, they’re not re-playable. The messages usually
    they’ll stay if it’s a group chat, just depends on if you change the right
    setting.
    3
    United States v. Cadavona, No. ACM 40129
    that . . . [GK was] kind of exposed in it.” GK did not really know what SrA DT
    meant by this. GK ultimately spoke with several Airmen about what hap-
    pened. One of the Airmen, SrA AW, asked GK what she knew about the videos;
    when GK’s response “didn’t match up to” what had occurred, SrA AW then
    “told [GK] the actual truth and that there were videos from a group chat.” GK
    testified she did not recall any details about a recording of any sexual acts, did
    not consent to any such recording, and did not consent to recordings being sent
    to the group chat.
    By most accounts, the group chat contained 20 to 25 individuals who were
    active duty members, many of whom did not know or only vaguely knew GK.
    The Government called nine witnesses who were a part of the group chat that
    received the videos sent by Appellant. Almost every one of those witnesses tes-
    tified they received either a video from Appellant of him digitally penetrating
    GK or a video sent from SrA DT of Appellant performing oral sex on GK.
    During the Defense’s case in chief, Special Agent TA testified that the Air
    Force Office of Special Investigations (AFOSI) obtained the cell phones of Ap-
    pellant, SrA DT, and others—approximately 25 people in total. A number of
    those phones were sent to a forensic laboratory for review. No screenshots, pic-
    tures, or videos related to the events of 2 and 3 August 2019 were found. The
    search included the use of Cellebrite, a computer program that has the capacity
    to recover deleted files. AFOSI also subpoenaed Snapchat for information re-
    lating to the investigation, but received nothing related to the events of 2 to 3
    August 2019. Special Agent TA testified he believed “there [wasn’t] anything
    to be obtained.”
    II. DISCUSSION
    Appellant contends trial counsel’s argument was improper because he
    made arguments that were not reasonable inferences from the facts, and that
    trial counsel argued alleged victim impact too attenuated to be attributed to
    Appellant. We are not persuaded by Appellant’s arguments and find no relief
    is warranted.
    A. Additional Background
    In presentencing, GK provided an unsworn victim impact statement to the
    court. GK told the military judge, inter alia, “What happened to me hurt when
    it happened and it still hurts today.” GK described Appellant as “a stranger”
    and described what it was like “to wake up and hear from others how they had
    seen [her] exposed and vulnerable.” GK “had to hear from them how this
    stranger took a video of [her] and sent it out and how they watched it.” GK told
    4
    United States v. Cadavona, No. ACM 40129
    the military judge she would “never forget that feeling.” GK also described be-
    ing “distracted and worried” at work, and how hard it was to “cope with” Ap-
    pellant’s actions.
    Trial counsel’s sentencing argument focused in part on the “spread” of Ap-
    pellant’s actions. Trial counsel began his argument by stating that “all [GK]
    wanted to do was serve her country. . . . What she didn’t ask for . . . was to be
    sitting in this court room [sic] as a victim. What she didn’t ask for is to be
    recorded in her most vulnerable state.” Trial counsel continued:
    [GK] didn’t ask for a number of strangers to be looking at the
    areas of her body that she should control who should see or who
    shouldn’t see. She didn’t ask to be made fun of, she didn’t ask to
    be humiliated, and she certainly didn’t ask to be sitting in this
    court room [sic] embarrassed and ashamed and contemplating
    whether or not she wants to continue to serve with her brothers
    and sisters of the armed forces.
    Shortly thereafter, trial counsel compared Appellant’s crimes to a “virus”
    and “how that virus affects [GK] every single day for the rest of her life.” Trial
    counsel stated once Appellant distributed the recording, he became “Patient
    Zero.” Trial counsel argued:
    Your Honor, not just using your knowledge and ways of the
    world as it applies to Air Force members in PCSing,[7] but you
    know based on the various witnesses who testified and the vari-
    ous places where they’re now PCS’d in the world -- that like a
    virus, [A]irmen spread across the world from PCS to PCS. And
    those 20 to 25 [A]irmen have already spread throughout Asia,
    carrying the knowledge of them viewing [GK]’s private areas
    when she didn’t want them to. You know that this virus has
    spread to Europe, where these [A]irmen take that knowledge,
    take that memory with them of seeing [GK] in her most vulner-
    able states. And you know that it’s also spread to various Air
    Forces bases in the United States. And just like the virus that
    we are all so familiar with today, this virus -- this video record-
    ing -- has been a global pandemic in the eyes of [GK] because
    there’s no getting away from it, there’s no vaccine for it, she just
    has to live with it every day, day to day, for the rest of her life.
    Trial counsel further commented on behavioral changes experienced by GK
    as GK described in her statement, arguing this impact was “in direct relation
    also to the idea that this video recording has spread throughout the world.”
    7 PCS is an abbreviation for “permanent change of station.”
    5
    United States v. Cadavona, No. ACM 40129
    Trial counsel asserted, “There will never be another day where [GK] goes into
    a room in the Air Force somewhere -- whether it’s a [dining facility], whether
    it’s a new PCS station, whether it’s her work place -- and wonders to herself,
    has anyone in this room saw [sic] me?” Trial counsel asked the military judge
    to sentence Appellant to two-and-a-half years of confinement and a dishonora-
    ble discharge, with the terms of confinement for each specification to run con-
    currently with each other.
    Trial defense counsel did not object during trial counsel’s sentencing argu-
    ment. Appellant now argues that trial counsel erred by arguing that the videos
    would spread throughout the Air Force, when there was no evidence of such,
    and that Appellant was materially prejudiced by trial counsel’s improper ar-
    guments. Appellant notes there was no evidence that the recordings were on
    anyone’s phone, that there was no evidence that copies were made of the re-
    cordings, and that there were no “new people in the locations cited by trial
    counsel [who] will or could ever see these recordings.” Appellant further states
    that even if trial counsel “intended to argue that GK would suffer the results
    of knowledge of the videos, rather than the videos themselves spreading,” such
    argument would also be error—because, as Appellant claims, GK “did not ex-
    press any concern about the fact that people who had seen [the videos] would,
    at some, point PCS, and no such concern can be reasonably inferred from her
    statement either.”
    The Government argues that “trial counsel never argued that any indecent
    recording of GK was retained and spread across the world. Instead, trial coun-
    sel argued that active duty servicemembers who had seen the video would
    carry that knowledge with them wherever they go after Kadena AB.” (Empha-
    sis added).
    B. Law
    The issue of “[i]mproper argument is a question of law that we review de
    novo.” United States v. Marsh, 
    70 M.J. 101
    , 104 (C.A.A.F. 2011) (citation omit-
    ted). However, if the defense does not object to a sentencing argument by trial
    counsel, we review the issue for plain error. 
    Id.
     (citing United States v. Erick-
    son, 
    65 M.J. 221
    , 223 (C.A.A.F. 2007)). To establish plain error, an appellant
    “must prove the existence of error, that the error was plain or obvious, and that
    the error resulted in material prejudice to a substantial right.” 
    Id.
     at 106 (citing
    Erickson, 65 M.J. at 223). Because “all three prongs must be satisfied in order
    to find plain error, the failure to establish any one of the prongs is fatal to a
    plain error claim.” United States v. Bungert, 
    62 M.J. 346
    , 348 (C.A.A.F. 2006).
    “The legal test for improper argument is whether the argument was erro-
    neous and whether it materially prejudiced the substantial rights of the ac-
    cused.” United States v. Frey, 
    73 M.J. 245
    , 248 (C.A.A.F. 2014) (quoting United
    6
    United States v. Cadavona, No. ACM 40129
    States v. Baer, 
    53 M.J. 235
    , 237 (C.A.A.F. 2000)). Three factors guide our de-
    termination of the prejudicial effect of improper argument: “(1) the severity of
    the misconduct, (2) the measures adopted to cure the misconduct, and (3) the
    weight of the evidence supporting the conviction[s].” United States v. Sewell,
    
    76 M.J. 14
    , 18 (C.A.A.F. 2017) (alteration in original) (quoting United States v.
    Fletcher, 
    62 M.J. 175
    , 184 (C.A.A.F. 2005)). “In applying the Fletcher factors in
    the context of an allegedly improper sentencing argument, we consider
    whether trial counsel’s comments, taken as a whole, were so damaging that we
    cannot be confident that the appellant was sentenced on the basis of the evi-
    dence alone.” United States v. Halpin, 
    71 M.J. 477
    , 480 (C.A.A.F. 2013) (alter-
    ation, internal quotation marks, and citation omitted).
    “Trial counsel is entitled to argue the evidence of record, as well as all rea-
    sonable inferences fairly derived from such evidence.” Frey, 73 M.J. at 248 (in-
    ternal quotation marks and citation omitted). Additionally, “either party may
    comment on properly admitted unsworn victim statements” during presentenc-
    ing argument. United States v. Tyler, 
    81 M.J. 108
    , 113 (C.A.A.F. 2021). “During
    sentencing argument, the trial counsel is at liberty to strike hard, but not foul,
    blows.” Halpin, 71 M.J. at 479 (internal quotation marks and citation omitted).
    “[T]he argument by a trial counsel must be viewed within the context of the
    entire court-martial.” Baer, 53 M.J. at 238. “The focus of our inquiry should not
    be on words in isolation, but on the argument as viewed in context.” Id. (inter-
    nal quotation marks and citations omitted).
    We assume when analyzing allegations of improper sentencing argument
    in a judge-alone forum that a military judge “is able to distinguish between
    proper and improper sentencing arguments.” Erickson, 65 M.J. at 225.
    C. Analysis
    Because there was no objection during trial counsel’s argument, we analyze
    this issue under a plain error standard of review. After closely examining trial
    counsel’s argument, we find Appellant has failed to establish error, let alone
    plain or obvious error, in those arguments. Many of the Airmen who received
    the videos had departed Kadena AB by the time of Appellant’s trial. At the
    time of trial, one Airman was stationed at Aviano AB, Italy, another Airman
    was stationed at Keesler Air Force Base, Mississippi, and another Airman was
    stationed at F.E. Warren Air Force Base, Wyoming. It is clear to this court that
    trial counsel was articulating that those Airmen who watched the videos in-
    volving GK would take the knowledge and memory of what they viewed with
    them—not necessarily the actual videos—when they left Kadena AB.
    It is accurate that GK did not specifically express any concern about the
    fact that people who had seen the videos would at some point have a PCS.
    However, GK stated, inter alia, that she had difficulty coping with Appellant’s
    7
    United States v. Cadavona, No. ACM 40129
    crimes; that they “affected how [she] view[ed] [her] future in the Air Force;”
    that “others . . . had seen [her] exposed and vulnerable;” that she felt “isolated
    and alone;” and that she would have to live with Appellant’s actions for the
    rest of her life. As our military society is a transitory one, with most service-
    members incurring multiple permanent and temporary duty assignments in a
    career, trial counsel’s argument was not inaccurate; the points he was articu-
    lating were based on the evidence and reasonable inferences. Assuming GK
    were to stay in the Air Force, she would always run into the possibility that
    someone would recognize her from the videos Appellant and SrA DT made and
    distributed. Compounding this matter, GK did not have a clear picture of who
    all had seen the videos since she was not a part of the group chat and did not
    know everyone in the group chat. In other words, reasonable inferences could
    be made from GK’s statements that she would always be exposed and vulner-
    able to a continuing impact of Appellant’s crimes, no matter where she went.
    We therefore conclude Appellant has not demonstrated any error in trial coun-
    sel’s argument, let alone plain or obvious error.
    However, even if we were to assume that Appellant could demonstrate
    plain or obvious error, he has failed to demonstrate any material prejudice or
    that the error substantially influenced his adjudged sentence. See United
    States v. Barker, 
    77 M.J. 377
    , 384 (C.A.A.F. 2018). The first Fletcher factor
    considers the severity of the misconduct. 62 M.J. at 184. On this matter, we
    note that the “lack of a defense objection is some measure of the minimal im-
    pact of a prosecutor’s improper comment.” See United States v. Gilley, 
    56 M.J. 113
    , 123 (C.A.A.F. 2001) (internal quotation marks and citation omitted). We
    would find that the comments were minor and relatively insignificant.
    Regarding the second Fletcher factor as to the curative measures taken, no
    curative instruction was necessary because it was a judge-alone forum, and
    military judges are presumed to know and follow the law, absent clear evidence
    to the contrary. See United States v. Mason, 
    45 M.J. 483
    , 484 (C.A.A.F. 1997)
    (citation omitted). Additionally, Appellant has presented no evidence that the
    military judge in this case was unable to distinguish between proper and im-
    proper sentencing argument. As to the third Fletcher factor, the weight of the
    evidence supporting the sentence, we find this factor weighs in the Govern-
    ment’s favor. The evidence in this case was strong and virtually uncontested,
    coming from numerous witnesses about what they received and viewed. We
    find the facts and circumstances provide substantial justification to support
    the sentence, irrespective of trial counsel’s unconventional and eccentric argu-
    ment. We conclude that the weight of the evidence supports the adjudged sen-
    tence.
    In conclusion, we find that Appellant has failed to meet his burden to
    demonstrate plain error, and after considering trial counsel’s comments as a
    8
    United States v. Cadavona, No. ACM 40129
    whole, we are confident that Appellant was sentenced based on the evidence
    alone. See Halpin, 71 M.J. at 480.
    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 the sentence are AFFIRMED.
    FOR THE COURT
    CAROL K. JOYCE
    Clerk of the Court
    9
    

Document Info

Docket Number: 40129

Filed Date: 9/23/2022

Precedential Status: Non-Precedential

Modified Date: 5/29/2024