United States v. Wermuth ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39856 (f rev)
________________________
UNITED STATES
Appellee
v.
Michael J. WERMUTH
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 1 September 2022
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Military Judge: Wesley A. Braun; Dayle P. Percle (remand).
Sentence: Sentence adjudged on 12 November 2019 by GCM convened at
Dover Air Force Base, Delaware. Sentence entered by military judge on
30 December 2019 and re-entered on 7 September 2021: Dishonorable
discharge, confinement for 3 years, and reduction to E-1.
For Appellant: Major Amanda E. Dermady, USAF; Major Sara J. Hick-
mon, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Cortland T. Bobczynski, USAF;
Mary Ellen Payne, Esquire.
Before JOHNSON, KEY, and CADOTTE, Appellate Military Judges.
Chief Judge JOHNSON delivered the opinion of the court, in which Sen-
ior Judge KEY and Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
JOHNSON, Chief Judge:
United States v. Wermuth, No. ACM 39856 (f rev)
Appellant’s case is before this court for the third time. A general court-mar-
tial composed of a military judge alone found Appellant guilty, in accordance
with his pleas and pursuant to a pretrial agreement (PTA), of one specification
of possession of child pornography and one specification of distribution of child
pornography in violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934. 1 The military judge sentenced Appellant to a dishon-
orable discharge, confinement for four years, and reduction to the grade of E-
1. The convening authority signed a Decision on Action memorandum which
reduced Appellant’s term of confinement to three years in accordance with the
PTA, but took no other action on the sentence. Thereafter, the military judge
signed an entry of judgment (EoJ) stating the final sentence, as modified by
the convening authority’s action, as a dishonorable discharge, confinement for
three years, and reduction to the grade of E-1.
In his initial appeal to this court, Appellant raised four issues: (1) whether
the military judge erred when he admitted a stipulation of fact into evidence
that included victim impact statements as attachments; (2) whether the trial
counsel committed prosecutorial misconduct during sentencing argument; (3)
whether the convening authority erred by not taking action on the entire sen-
tence; and (4) whether Appellant is entitled to sentence relief due to his civilian
post-trial confinement conditions. 2 This court found error with respect to issue
(3) and remanded the record to the Chief Trial Judge, Air Force Trial Judiciary,
for corrective action with respect to the convening authority’s failure to take
action on the entire sentence. United States v. Wermuth, No. ACM 39856, 2021
CCA LEXIS 378, at *7–8 (A.F. Ct. Crim. App. 30 Jul. 2021) (unpub. op.); see
also United States v. Brubaker-Escobar, 81 M.J. 471, 472–75 (C.A.A.F. 2021)
(per curiam) (holding the convening authority’s failure to take action on the
entire sentence was a procedural error tested for material prejudice to a sub-
stantial right). We deferred consideration of the remaining issues until the rec-
ord returned to this court. Wermuth, unpub. op. at *3.
On 17 September 2021, the record was redocketed with this court, includ-
ing a new EoJ dated 7 September 2021 listing a corrected convening authority
Decision on Action memorandum as an attachment. On 16 November 2021,
Appellant submitted the record for review by this court without additional as-
signments of error. However, we found the corrected Decision on Action mem-
orandum had been erroneously omitted from the record. Accordingly, we again
1 References to the punitive articles of the UCMJ are to the Manual for Courts-Martial,
United States (2016 ed.). Unless otherwise noted, all other references to the UCMJ and
to the Rules for Courts-Martial (R.C.M.) and Military Rules of Evidence are to the
Manual for Courts-Martial, United States (2019 ed.).
2 Appellant personally raised issue (4) pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
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United States v. Wermuth, No. ACM 39856 (f rev)
returned the record to the Chief Trial Judge for corrective action. United States
v. Wermuth, No. ACM 39856 (f rev), 2022 CCA LEXIS 208 (A.F. Ct. Crim. App.
1 Apr. 2022) (order).
Appellant’s record of trial was again redocketed with the court on 22 April
2022. On 13 June 2022, Appellant again submitted the case for review without
raising additional assignments of error. Accordingly, we address the three re-
maining issues raised in Appellant’s initial appeal to this court. We find no
remaining error that materially prejudiced Appellant’s substantial rights, and
we affirm the findings and sentence.
I. BACKGROUND
Appellant was stationed at Dover Air Force Base (AFB), Delaware, begin-
ning in October 2016. Appellant was deployed overseas from July 2017 until
January 2018, afterwards returning to Dover AFB.
Appellant created two Dropbox3 accounts in June and December 2017
which he used to store and share images and videos of minors engaged in sex-
ually explicit conduct. Appellant used accounts on Tumblr 4 and Kik 5 to com-
municate with other users who were interested in child pornography in order
to seek, obtain, view, and exchange such material. Appellant would exchange
links to Dropbox accounts with other individuals, which would allow Appellant
to access child pornography in the other users’ Dropbox accounts and allow the
other users to access the child pornography in Appellant’s Dropbox accounts.
Appellant knew the other users were actually accessing his accounts because
they would subsequently comment to him on the material they viewed.
By June 2018, Appellant’s illicit activity had come to the attention of the
Air Force Office of Special Investigations (AFOSI). AFOSI agents interviewed
Appellant on 19 June 2018. During the interview Appellant admitted to the
conduct described above, made a written statement admitting to possessing
and distributing child pornography, and consented to a search of his apartment
for digital devices he used to possess and distribute child pornography. Accord-
ing to the stipulation of expected testimony of AFOSI Special Agent (SA) EB,
the primary case agent for AFOSI’s investigation of Appellant, Appellant’s
3 At his court-martial, Appellant described Dropbox as an online “file management
system” or “storage system” where electronic media such as “pictures, videos, [and]
movies” can be stored.
4 The stipulation of fact described Tumblr as “a microblogging and social networking
website” that “allows users to post multimedia and other content to a short-form blog,”
which can be made “private.”
5 The stipulation of fact describes Kik as “a free instant messaging mobile application.”
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United States v. Wermuth, No. ACM 39856 (f rev)
Dropbox accounts contained approximately 19,000 digital images and videos of
child pornography as of February 2019. Analysis performed by the National
Center for Missing and Exploited Children (NCMEC) identified 4,267 image
files and 570 video files from known child pornography series among the files
in Appellant’s Dropbox accounts.
II. DISCUSSION
A. Victim Statements Attached to Stipulation of Fact
1. Additional Background
Appellant’s PTA required him to enter into a “reasonable stipulation of
fact” with the Government. At Appellant’s court-martial, the Government in-
troduced Prosecution Exhibit 1, a stipulation of fact signed by Appellant, trial
defense counsel, and trial counsel, which had 17 attachments appended. The
stipulation provided, inter alia, that “the following facts are true and admissi-
ble for all purposes . . . relating to the charge and specifications,” that “all at-
tachments contained herein are admissible for any purpose,” and that Appel-
lant “waive[d] any objection to foundation, hearsay, and authentication, in ac-
cordance with the Military Rules of Evidence.”
During the court-martial, the military judge explained to Appellant that a
stipulation was an agreement that no one could be forced to enter. Appellant
told the military judge he agreed he was entering the stipulation “voluntarily”
and because he believed it was “in his best interest to do so.” The military judge
had Appellant review every paragraph of Prosecution Exhibit 1 and confirm
each was true and Appellant wished to admit each was true. In addition, the
military judge had Appellant review the attachments and confirm that every-
thing in Prosecution Exhibit 1, to include the attachments, was true and Ap-
pellant wished to admit it was true. Trial defense counsel then stated the De-
fense had no objection to Prosecution Exhibit 1 and the military judge admitted
it into evidence.
Attachment 13 to Prosecution Exhibit 1 was identified as an excerpt from
a “Child Identification Report” prepared by NCMEC, which identified thou-
sands of known files of child pornography Appellant possessed that were asso-
ciated with identifiable victims. These “series” of images or videos of known
child pornography were identified by particular names given to the various
series.
Attachments 14, 15, 16, and 17 are typed documents identified as “Victim
Impact Statements” related to four of the series identified in Attachment 13.
Attachments 14 and 16 are apparently single statements by two victims; At-
tachment 15 is a statement by the mother of two other victims; and Attachment
17 is a series of three statements by another victim. Each statement describes
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United States v. Wermuth, No. ACM 39856 (f rev)
negative emotional, social, employment, and other impacts the victims have
experienced due to their awareness of the existence and continued circulation
of the child pornography in which they are depicted. The statements were evi-
dently created with the intent that they would be used in legal proceedings
related to the child pornography, but none make specific reference to Appellant
or his offenses—in fact, all of the statements pre-date the charged time frame.
The stipulation of expected testimony of SA EB, which trial counsel read
on the record for the military judge, identified the “victim impact statements”
attached to the stipulation of fact as being “from the children and affected par-
ties depicted in the digital images and videos from [Appellant’s] child pornog-
raphy collection listed by series name.” The stipulation of fact and SA EB’s
stipulation of expected testimony both identified each of the attached state-
ments with a particular series name.
2. Law
“We review a military judge’s decision to admit evidence for an abuse of
discretion.” United States v. Norwood, 81 M.J. 12, 17 (C.A.A.F. 2021) (citation
omitted). “An abuse of discretion occurs when a military judge either errone-
ously applies the law or clearly errs in making his or her findings of fact.”
United States v. Donaldson, 58 M.J. 477, 482 (C.A.A.F. 2003) (citation omitted).
“The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be ‘arbitrary, fanciful, clearly
unreasonable,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J. 120,
130 (C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F.
1997); United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).
“Whether an accused has waived an issue is a question of law we review de
novo.” United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (citation omit-
ted). “Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.”
Id. (quoting United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). “[A]
valid waiver leaves no error to correct on appeal.” Id. (citations omitted). How-
ever, Article 66, UCMJ, 10 U.S.C. § 866, empowers a Court of Criminal Appeals
(CCA) to address a legal error in spite of waiver or forfeiture at trial. See United
States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018) (citations omitted).
Rule for Courts-Martial (R.C.M.) 1001(c)(1) provides that a “victim of an
offense of which the accused has been found guilty has the right to be reason-
ably heard at the presentencing proceeding relating to that offense.” See also
10 U.S.C. § 806b(a)(4)(B) (stating the victim of an offense under the UCMJ has
a right to be reasonably heard at a court-martial sentencing hearing). Such a
victim may elect to make either a sworn statement subject to cross-examina-
tion, or an unsworn statement—oral, written, or both—not subject to cross-
examination. R.C.M. 1001(c)(4), (5). “The right to make an unsworn statement
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solely belongs to the victim or the victim’s designee and cannot be transferred
to trial counsel.” United States v. Edwards, ___ M.J. ___, 2022 CAAF LEXIS
283, at *2 (C.A.A.F. 14 Apr. 2022) (citing United States v. Hamilton, 78 M.J.
335, 342 (C.A.A.F. 2018); United States v. Barker, 77 M.J. 377, 382 (C.A.A.F.
2018)) (interpreting R.C.M. 1001A (Manual for Courts-Martial, United States
(2016 ed.) (2016 MCM)).
R.C.M. 1001(b)(4) provides, inter alia, that during presentencing proceed-
ings the Government may introduce, as evidence in aggravation, “evidence of
financial, social, psychological, and medical impact on or cost to any person or
entity who was the victim of an offense committed by the accused . . . .” The
“revictimization . . . facet of child pornography is itself settled law . . . and why
child pornography is [ ] considered a continuing offense . . . .” Barker, 77 M.J.
at 384 (citations omitted).
Evidence that otherwise would be inadmissible under the Mili-
tary Rules of Evidence may sometimes be admitted at trial
through a stipulation, if the parties expressly agree, if there is
no overreaching on the part of the Government in obtaining the
agreement, and if the military judge finds no reason to reject the
stipulation “in the interest of justice.”
United States v. Clark, 53 M.J. 280, 281 (C.A.A.F. 2000) (quoting United States
v. Glazier, 26 M.J. 268, 270 (C.M.A. 1988)); see also Hamilton, 78 M.J. at 341
(quoting Clark, 52 M.J. at 281–82).
3. Analysis
Appellant contends the military judge plainly erred by admitting the stip-
ulation of fact with the victim impact statements appended as Attachments 14,
15, 16, and 17. He contends the attachments do not comport with R.C.M.
1001(c) because there was no indication the victims specifically requested to
have the statements introduced at Appellant’s court-martial, nor was there
any indication of how the victims were affected by Appellant’s specific offenses.
Appellant contends the statements were also inadmissible as evidence in ag-
gravation under R.C.M. 1001(b)(4) because they were written before Appellant
committed his offenses and do not indicate direct consequences of those of-
fenses. Appellant recognizes that, in general, evidence otherwise inadmissible
may be included in a stipulation of fact, but notes that there are limits to such
stipulations. He contends the record indicates the attachments were in fact
victim impact statements subject to R.C.M. 1001(c), citing their form and con-
tent and noting that they were referred to as “victim impact statements” in
Prosecution Exhibit 1 itself. Accordingly, he asserts that by attaching the
statements to Prosecution Exhibit 1, the Government improperly appropriated
the victims’ rights to present such statements. He compares this situation to
the holding in Clark, where the United States Court of Appeals for the Armed
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Forces (CAAF) explained that the inclusion of a reference to a polygraph result
in a stipulation of fact was plainly erroneous in light of Mil. R. Evid. 707’s pro-
hibition on such evidence. 53 M.J. at 282; see also United States v. Scheffer,
523 U.S. 303, 317 (1998) (upholding constitutionality of R.C.M. 707). But cf.
United States v. Kohlbeck, 78 M.J. 326, 331 (C.A.A.F. 2018) (holding “evidence
about the facts and circumstances about a polygraph examination procedure
offered to explain the reason or motivation for a confession” may be admissible
notwithstanding Mil. R. Evid. 707).
In response, the Government contends Appellant waived any objection to
Attachments 14, 15, 16, and 17; assuming Appellant’s objection was merely
forfeited rather than waived, the military judge did not plainly err by admit-
ting Prosecution Exhibit 1 with the attachments; and assuming error, any such
error did not have a substantial effect on the sentence. We agree with the Gov-
ernment that Appellant waived the objections he now asserts.
Waiver is the intentional relinquishment or abandonment of a known right.
The record is clear that Appellant knew he was not required to agree to the
stipulation of fact. It is also clear Appellant was aware the Defense could po-
tentially oppose any of the attachments to Prosecution Exhibit 1 on the basis
of foundation, authentication, or hearsay, but expressly declined to do so. Ap-
pellant and trial defense counsel repeatedly indicated they agreed that Prose-
cution Exhibit 1 and all of its attachments would be admitted into evidence,
without objection. Moreover, it is clear Appellant had a substantial incentive
to do so—a limitation on his maximum term of confinement that, in the event,
reduced his adjudged sentence to four years down to three years, where he
faced a maximum imposable term of 30 years. Furthermore, Appellant’s court-
martial took place on 12 November 2019, well after the CAAF clarified in
Barker and Hamilton the distinction between prosecution evidence in aggra-
vation and a victim’s independent and personal right to present a statement;
accordingly this is not a situation where the “failure to object was not waiver
given the unsettled nature of the law at the time of [the] court-martial.” United
States v. Schmidt, 82 M.J. 68, 73 (C.A.A.F. 2022).
We recognize that in Clark the CAAF did not apply waiver and reviewed
for plain error, in spite of the fact that the appellant agreed to the stipulation
and “made no objections at his court-martial and raised no issues on appeal.”
53 M.J. at 282. “Whether a particular right is waivable; whether the defendant
must participate personally in the waiver; whether certain procedures are re-
quired for waiver; and whether the defendant’s choice must be particularly in-
formed or voluntary, all depend on the right at stake.” United States v. Har-
crow, 66 M.J. 154, 156 (C.A.A.F. 2008) (quoting United States v. Olano, 507
U.S. 725, 733 (1993)). More recent precedents from our superior court—taking
a firmer line on the question of whether a statement of no objection constitutes
waiver—lead us to the inescapable conclusion that Appellant unambiguously
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waived any objection to the victim statements at issue here. See, e.g., United
States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020); United States v. Haynes, 79
M.J. 17, 19 (C.A.A.F. 2019); Ahern, 76 M.J. at 197; United States v. Campos,
67 M.J. 330, 332–33 (C.A.A.F. 2009). In this light, we find that Clark is best
understood as turning on the unique nature of Mil. R. Evid. 707’s prohibition
on evidence of polygraph examinations.
We further recognize our authority under Article 66(d), UCMJ, 10 U.S.C.
§ 866(d), to pierce an appellant’s waiver in order to correct a legal error. We
find no cause to do so here. Cases such as this one involving large amounts of
child pornography may pose distinct challenges for the Government in light of
the victim rights set forth in Article 6b, UCMJ. 6 However, without deciding
whether or not any error might have occurred in that respect, we note that the
Government may itself properly present evidence of adverse victim impact as
evidence in aggravation. See R.C.M. 1001(b)(4). Thus there is nothing per se
inappropriate about the Government offering such evidence, and an accused
may validly waive evidentiary objections to such evidence, as in this case. Ap-
pellant might have successfully opposed the introduction of such evidence, had
he chosen to do so; however, he knowingly and purposefully elected to forego
that opportunity in order to secure other benefits. Moreover, we find no evi-
dence the Government “overreached” in order to induce Appellant’s agreement
to the stipulation of fact, nor that the “interest of justice” otherwise requires
our intervention. Clark, 53 M.J. at 281.
Furthermore, we note Appellant was sentenced by a military judge. As in
Barker, “many of the themes and harms” described in the victim statements
“are well known to the law, and thus are presumed to have been known by the
military judge.” 77 M.J. at 384. Even if we were to assume error, this circum-
stance, coupled with the gravity and extent of Appellant’s offenses, lead us to
conclude the victim statements did not substantially influence the approved
sentence.
B. Trial Counsel Sentencing Argument
1. Additional Background
Prosecution Exhibit 1, the stipulation of fact, included portions of chat con-
versations Appellant engaged in with other Tumblr users related to child por-
nography and sexual interest in children. Prosecution Exhibit 1 also included
6 See Hamilton, 78 M.J. at 339–40 (“[T]he right to be reasonably heard requires that
the victims be contacted, given the choice to participate in a particular case, and, if
they choose to make a statement, offer the statement themselves, through counsel, or
through a ‘victim’s designee’ where appropriate.”) (citing R.C.M. 1001A(d)–(e) (2016
MCM); Barker, 77 M.J. at 382–83).
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United States v. Wermuth, No. ACM 39856 (f rev)
Appellant’s admission to AFOSI agents that he was sexually aroused by child
pornography.
During presentencing proceedings, Appellant provided oral and written un-
sworn statements. In each, Appellant told the military judge that he did not
“know exactly what drove [Appellant] to look at child pornography. But [Ap-
pellant] plan[ned] to seek out mental health counseling at whatever confine-
ment facility [he was] sent to. After [he] serve[d] out [his] sentence, [he]
plan[ned] to continue to pursue counseling so that this never happens again.”
Trial counsel’s sentencing argument included, inter alia, the following:
[Appellant] expressed that he wants rehabilitation -- to get help.
Your Honor, he’s known this investigation has [been] going on
for about a year-and-a-half, and we heard no evidence today that
he’s actually gotten help. And it’s clear, Your Honor, that he
doesn’t believe that he has an issue.
....
I’ll point your attention, again, to the Tumblr chats . . . . [Appel-
lant] was asked if he, if he had ever been with a child, meaning,
whether he’s ever had sex or molested a child. He responds,
“Sadly, no.” Later on, he was asked by another user how old he
likes them, meaning, children. He responds, “Six or seven,”
meaning years old.
Your Honor, a six or seven-year-old child has probably just fin-
ished second grade. They’re probably barely able to appreciate
the math homework they just got, probably be more worried
about T-ball or playing with their friends. What they shouldn’t
be worried about is someone taking advantage of them. Taking
advantage of their bodies. Having men forcefully penetrate them
while they’re begging them to stop. And they certainly have --
shouldn’t have to worry about people taking pictures and video-
taping it all, so they can relive it every day as people are distrib-
uting this all over the [I]nternet and more and more people see
it. And having -- they -- what they shouldn’t have to worry about
is having individuals, like, [Appellant] distribute them. In that
same conversation, Your Honor, he’s talking with another user
about finding a pedomother[7] to help him sexually exploit chil-
7 In context, the Tumblr chat attached to Prosecution Exhibit 1 that trial counsel re-
ferred to indicated the term “pedomother” referred to a woman who was willing to in-
volve her minor child in sexual abuse.
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dren. Calling that quote [“]Hot.[”] Later on, he talks about train-
ing children. He’s talking, Your Honor, about grooming children
to have sex with him.
So, Your Honor, not only do we have an individual actively seek-
ing child pornography, not only advertising to exchange child
pornography, not only actually distributing child pornography,
but he discusses, exactly, what he would do with a child if he
could. And not just with children who are strangers. In that
same con -- chat conversation he says, that he wished he had a
sister, and he’d never leave her room. He says that he has a
niece. And you heard some testimony about that today. And won-
dered if she would be into it. Meaning, having sex with him. Your
Honor, this is a real, potential victim out there that he knows is
walking and talking out there, that he’s talking about sexually
exploiting.
In the same chats, Your Honor, he asks an apparent female if
she’s really 16 [years old]. Leaning in with that -- confirming her
age. He’s talking directly to minors to solicit child pornography.
This is exactly why a three to five-year sentence is appropriate,
Your Honor. It serves as a, as a specific deterrent to this very
individual. An individual who has expressed in his own words
and through his own conduct what he would like to do with chil-
dren all the while maintaining and distributing thousands upon
thousands of files of child pornography.
Trial defense counsel did not object to these portions of trial counsel’s ar-
gument.
2. Law
When the defense objects to an improper argument at trial, we review the
issue de novo. Norwood, 81 M.J. at 19 (citing United States v. Voorhees, 79 M.J.
5, 9 (C.A.A.F. 2019)). If there is no objection at trial, on appeal the appellant
bears the burden to demonstrate plain error. Id. (citing Voorhees, 79 M.J. at 9).
When reviewing an allegedly improper argument for plain error, the appellate
court “must determine: (1) whether trial counsel’s arguments amounted to
clear, obvious error; and (2) if so, whether there was ‘a reasonable probability
that, but for the error, the outcome of the proceeding would have been differ-
ent.’” Voorhees, 79 M.J. at 9 (quoting United States v. Lopez, 76 M.J. 151, 154
(C.A.A.F. 2017)) (additional citations omitted).
“A prosecutorial comment must be examined in light of its context within
the entire court-martial.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F.
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United States v. Wermuth, No. ACM 39856 (f rev)
2005) (citation omitted). “Trial counsel is entitled ‘to argue the evidence of rec-
ord, as well as all reasonable inferences fairly derived from such evidence.’”
United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014) (quoting United States
v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). Trial counsel is prohibited from ar-
guing irrelevant matters, including facts not in evidence. United States v. Ty-
ler, 81 M.J. 108, 111 (C.A.A.F. 2021) (citation omitted). The CAAF “generally
has not permitted a trial counsel to comment on the failure of the defense to
produce evidence.” United States v. Taylor, 47 M.J. 322, 324 (C.A.A.F. 1997)
(citations omitted).
We need not determine whether a trial counsel’s comments were in fact
improper if we determine that the error, if any, did not materially prejudice
the appellant’s substantial rights. See United States v. Halpin, 71 M.J. 477,
479–80 (C.A.A.F. 2013). With respect to findings arguments, “[w]e weigh three
factors to determine whether trial counsel’s improper arguments were preju-
dicial: ‘(1) the severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the conviction.’”
United States v. Andrews, 77 M.J. 393, 402 (C.A.A.F. 2018) (quoting United
States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)). “Where improper argu-
ment occurs during the sentencing portion of the trial, we determine whether
or not we can be ‘confident that [the appellant] was sentenced on the basis of
the evidence alone.’” Frey, 73 M.J. at 248 (quoting Halpin, 71 M.J. at 480).
3. Analysis
On appeal, Appellant contends trial counsel’s argument was improper in
three respects: improperly commenting on the Defense’s sentencing case, par-
ticularly Appellant’s unsworn statement; arguing that Appellant’s punishment
should be increased based on uncharged misconduct; and arguing that Appel-
lant should be punished for crimes committed by others. We consider each as-
sertion in turn.
a. Comments on the Defense Case
Appellant contends trial counsel’s comment on Appellant’s desire for reha-
bilitation, as expressed in his unsworn statement, was improper for two rea-
sons. First, Appellant asserts his unsworn statement “is not evidence” and
therefore “cannot be the subject of argument.” Appellant is correct that his un-
sworn statement is not “evidence.” See United States v. Marsh, 70 M.J. 101,
104–05 (C.A.A.F. 2011) (citing United States v. Breese, 11 M.J. 17, 24 (C.M.A.
1981)). However, he is incorrect in that trial counsel may comment on an ac-
cused’s unsworn statement during sentencing argument. Id. at 105; see also
Tyler, 81 M.J. at 113 (holding unsworn victim impact statements, like unsworn
statements from the accused, may be subject to comment during argument).
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Second, Appellant asserts trial counsel’s statement that the court had
“heard no evidence” that Appellant had “actually gotten help” during the “year-
and-a-half” of investigation was improper because the Defense had no obliga-
tion to put on evidence. The implication of trial counsel’s comment was that
the Defense had failed to introduce such evidence. We agree this argument by
trial counsel was, at a minimum, poorly phrased. Trial counsel is generally not
permitted to comment on the failure of the defense to produce evidence. Taylor,
47 M.J. at 324 (C.A.A.F. 1997). Although Taylor and the cases cited therein
dealt specifically with evidence for findings, with regard to sentencing evidence
this court has noted: “Whenever trial counsel chooses to argue that an accused
has not ‘shown’ the sentencing authority something, counsel treads backwards
into a mine field in over-sized galoshes while wearing a blindfold.” United
States v. Feddersen, No. ACM 39072, 2017 CCA LEXIS 567, at *9 (A.F. Ct.
Crim. App. 21 Aug. 2017) (unpub. op.). In response, the Government cites
United States v. Edwards for the principle that trial counsel may comment on
an accused’s expression of remorse in an unsworn statement that “can be ar-
guably construed as being shallow, artificial, or contrived.” 35 M.J. 351, 355
(C.M.A. 1992) (citations omitted). However, this response misses the mark.
The concern is not that trial counsel commented on Appellant’s unsworn state-
ment, but that he did so by implying the Defense failed to introduce evidence
substantiating Appellant’s statement, rather than referring to “other evidence
in the record which gives rise to the inference that [the] accused [wa]s not re-
morseful.” Id.Nevertheless, we need not decide whether trial counsel’s comment about
the absence of evidence that Appellant had “actually gotten help” amounted to
plain or obvious error, because we find Appellant cannot demonstrate preju-
dice. See Halpin, 71 M.J. at 479–80. Although no specific corrective measures
were taken—trial defense counsel did not object—the remaining factors weigh
in favor of finding no prejudice to Appellant’s material rights. Significantly,
Appellant was sentenced by the military judge, who is “presumed to know the
law and to follow it absent clear evidence to the contrary,” and to “distinguish
between proper and improper sentencing arguments.” United States v. Erick-
son, 65 M.J. 221, 225 (C.A.A.F. 2007) (citation omitted). In addition, this par-
ticular reference to the absence of evidence that Appellant sought rehabilita-
tion was not severe. It was a brief comment rather than a recurring theme of
the argument. Moreover, the point itself was weak; we presume the military
judge understood the Defense was under no obligation to produce evidence, and
that there were valid reasons why Appellant might have deferred treatment
while the investigation was pending or, having obtained treatment, declined to
introduce such evidence in court. Trial counsel’s point was also muted by the
evidence that Appellant cooperated with the AFOSI investigation and pleaded
12
United States v. Wermuth, No. ACM 39856 (f rev)
guilty to the charged offenses, reflecting favorably on his rehabilitation poten-
tial. See Edwards, 35 M.J. at 355 (citing R.C.M. 1001(f)(1) (Manual for Courts-
Martial, United States (1984 ed.)). Furthermore, the properly admitted evi-
dence thoroughly supported the sentence imposed by the military judge. Fi-
nally, we note that in accordance with the PTA, the convening authority re-
duced Appellant’s confinement from four years to three years. Thus, in order
to materially prejudice Appellant’s substantial rights in terms of his sentence
to confinement, the alleged error would need to have caused the military judge
to increase Appellant’s term of confinement by more than one year. We are
certain this was not the case, and we are also certain this argument did not
induce the military judge to impose either the dishonorable discharge or the
reduction in grade. Accordingly, we are confident Appellant was not materially
prejudiced by the asserted error.
b. Comments on Uncharged Misconduct
Next, Appellant contends trial counsel “[e]ssentially . . . labeled [Appellant]
as a child predator” and argued he “would sexually abuse and exploit actual
children if he was not subjected to lengthy confinement.” Appellant contends
this was improper because Appellant was to be sentenced only for possessing
and distributing child pornography, not for any actual or attempted miscon-
duct with a child. Cf. Frey, 73 M.J. at 249 (“Trial counsel’s insinuation that
[a]ppellant was necessarily guilty of additional offenses and would be a serial
recidivist if not confined was both unsubstantiated and severe.”).
The Government responds that the Tumblr messages trial counsel refer-
enced in his argument are circumstances directly relating to Appellant’s dis-
tribution and possession of child pornography, and therefore proper aggravat-
ing circumstances under R.C.M. 1001(b) for trial counsel to comment on. The
Government further contends that, to the extent trial counsel referred to evi-
dence Appellant solicited a minor to provide him with child pornography or
other uncharged misconduct, such evidence was a proper matter in aggrava-
tion “because it directly related to the charged offense[s] as part of a continu-
ing” course of conduct, “to show the full impact of [A]ppellant’s crimes.” United
States v. Nourse, 55 M.J. 229, 232 (C.A.A.F. 2001). The Government cites this
court’s unpublished opinion in United States v. Lozano for the principle that
“[t]he prosecution may properly present the complete facts as matters in ag-
gravation, including the res gestae of the appellant’s crime, without surgically
removing those facts that paint the appellant in a negative light and could have
been separately charged but were not.” No. ACM S32043, 2013 CCA LEXIS
809, at *6 (A.F. Ct. Crim. App. 19 Sep. 2013) (unpub. op.).
We agree with the Government to the extent that the evidence of Appel-
lant’s Tumblr chats was properly admitted, and trial counsel could properly
13
United States v. Wermuth, No. ACM 39856 (f rev)
comment on them for certain purposes. 8 In sentencing argument, trial counsel
may properly comment on “the nature and circumstances of the offense” and
“the need for the sentence to . . . rehabilitate the accused.” R.C.M. 1002(f)(1),
(3)(F); see also R.C.M. 1001(h) (“Trial counsel may . . . refer to the sentencing
considerations set forth in R.C.M. 1002(f).”). To the extent Appellant’s Tumblr
chats reflected the circumstances under which he came to possess and distrib-
ute child pornography and the depth of his self-described sexual interest in
children, it was proper for trial counsel to comment on them to illustrate the
circumstances of Appellant’s offenses and in relation to Appellant’s potential
for rehabilitation. This was particularly so in light of defense evidence and Ap-
pellant’s unsworn statement attempting to portray Appellant’s positive reha-
bilitation potential.
However, it would not have been appropriate for trial counsel to suggest
Appellant should receive more punishment based on speculation that Appel-
lant had engaged or would engage in actual child sexual abuse. Appellant was
not convicted of such offenses. The Government did not introduce evidence as-
sociating the possession or distribution of child pornography with an increased
risk of committing such offenses. Moreover, contrary to the Government’s sug-
gestion, this is not a situation like Nourse involving actual evidence of a con-
tinuing course of closely related uncharged misconduct which illustrates the
“full impact” of the offenses for which Appellant was actually convicted and to
be sentenced. This portion of trial counsel’s argument suggested Appellant’s
comments indicated he was likely to sexually abuse children, unless deterred;
at a minimum, trial counsel’s argument brushed against the line of impermis-
sible argument.
However, as with Appellant’s previous contention, we need not decide
whether trial counsel’s argument amounted to plain or obvious error, because
we conclude Appellant cannot demonstrate prejudice. Our concern would be
much greater had Appellant been sentenced by court members. However, the
military judge who sentenced Appellant is presumed to know the law and dis-
tinguish between proper and improper arguments. Erickson, 65 M.J. at 225.
Trial counsel’s argument was not so inflammatory or blatantly improper as to
8 We note Prosecution Exhibit 1, the stipulation of fact, recited Appellant’s agreement
that the stipulation and its attachments were “admissible for any purpose and [Appel-
lant] waive[d] any objection to foundation, hearsay, and authentication, in accordance
with the Military Rules of Evidence.” We find implicit in this statement that Appellant
agreed to the use of Prosecution Exhibit 1 for any lawful purpose at the various stages
of his court-martial—e.g., motions, guilty plea inquiry, findings, or presentencing—
without the evidentiary requirements and restrictions normally applicable under the
Military Rules of Evidence. We do not find Appellant thereby waived any objection to
improper trial counsel argument based on Prosecution Exhibit 1.
14
United States v. Wermuth, No. ACM 39856 (f rev)
cause us to question these presumptions. Accordingly, we presume the military
judge understood and considered the evidence and trial counsel’s argument for
permissible purposes, and did not consider them for impermissible ones. There-
fore, we conclude this portion of trial counsel’s argument did not materially
prejudice Appellant’s substantial rights.
c. Comments on Misconduct by Others
Finally, Appellant contends trial counsel’s reference to men sexually abus-
ing 6- and 7-year-old children while the acts are photographed or recorded, and
to “people” distributing such material, improperly invited the military judge to
punish Appellant for crimes committed by others. He compares this case to
United States v. Jensen, where this court expressed concern that at certain
points “a reasonable factfinder could not discern if trial counsel was arguing
for a heightened sentence based on the facts underlying [a]ppellant’s posses-
sion and distribution of child pornography, a permissible argument, or whether
trial counsel impermissibly argued for a heightened sentence for crimes com-
mitted by others.” No. ACM 39573, 2020 CCA LEXIS 163, at *17 (A.F. Ct.
Crim. App. 19 May 2020) (unpub. op.). Appellant contends in the instant case
trial counsel similarly appeared to argue he was accountable for the actions of
producers of child pornography, as well as others besides himself who pos-
sessed and distributed such material.
We find this aspect of trial counsel’s argument was not plainly or obviously
erroneous. In context, trial counsel was describing the nature of child pornog-
raphy and how the actions of those who, like Appellant, possess and distribute
such material perpetuates the victimization—a matter the CAAF has de-
scribed as “settled law.” Barker, 77 M.J. at 384 (citation omitted). This was a
fair comment on the “nature and circumstances” of Appellant’s offenses,
R.C.M. 1102(f)(1), and not an invitation to punish Appellant for the actions of
others. In comparison, we find the argument described in Jensen more exten-
sively blurred the distinction between the appellant’s offenses and the actions
of others in justifying a specific sentence recommendation. Moreover, we note
that in Jensen the court declined to decide whether the argument amounted to
plain or obvious error, finding instead the appellant failed to demonstrate ma-
terial prejudice to a substantial right. Jensen, unpub. op. at *18.
Assuming arguendo trial counsel’s reference to the actions of others was
improper, we again find Appellant fails to demonstrate material prejudice. To
the extent trial counsel’s argument exceeded proper bounds, we conclude the
infraction was not severe, presume the military judge could distinguish proper
and improper sentencing argument, and find the sentence imposed was fully
supported by the evidence. See Frey, 73 M.J. at 249; Erickson, 65 M.J. at 225.
15
United States v. Wermuth, No. ACM 39856 (f rev)
C. Post-Trial Confinement Conditions
1. Additional Background
Prior to deliberating on the sentence, the military judge confirmed with
trial defense counsel that they had advised Appellant of his post-trial and ap-
pellate rights. Appellant confirmed that was so. Trial defense counsel provided
the court an 11-page document entitled “Post-Trial and Appellate Rights Ad-
visement,” signed by Appellant and one of his trial defense counsel and marked
as an appellate exhibit. One section of this document addressed Appellant’s
right to seek relief for cruel or unusual punishment in violation of the Eighth
Amendment 9 and Article 55, UCMJ, 10 U.S.C. § 855. This section included the
following advice:
In order to get relief for the poor conditions of your confinement,
you ordinarily must exhaust every administrative means avail-
able to attempt to correct the issue. This includes (1) submitting
a complaint to the confinement facility (preferably in writing);
(2) requesting relief through clemency (if known at that time);
and (3) filing a complaint with the commander who ordered your
confinement under Article 138, UCMJ[, 10 U.S.C. § 938].[ ] By
letting your trial defense counsel or your appellate counsel know
of the issue as soon as possible, they can assist you with all of
these procedures. If you have trouble reaching your attorney be-
cause of the conditions of your confinement, be sure to submit a
complaint to the confinement facility promptly, repeatedly, and
in writing (if possible).
Appellant was sentenced and entered confinement on 12 November 2019.
Appellant elected not to submit clemency matters to the convening authority.
The staff judge advocate prepared a written recommendation (SJAR) for the
convening authority dated 10 December 2019. Copies of the SJAR were served
on Appellant and on trial defense counsel on 13 December 2019; Appellant and
trial defense counsel both indicated in writing they would not submit a re-
sponse to the SJAR. The convening authority issued his initial decision on ac-
tion on 30 December 2019.
On appeal, Appellant moved to attach a declaration he signed dated 19
March 2021; this court granted the motion. The declaration describes the con-
ditions of Appellant’s confinement in a civilian facility in Delaware from 12
November 2019 until he was transferred to a military facility in late January
2020. According to the declaration, Appellant shared a five-foot by ten-foot cell
with two other confinees, which required one of the confinees to sleep on a mat
9 U.S. CONST. amend. VIII.
16
United States v. Wermuth, No. ACM 39856 (f rev)
on the floor rather than on a bunk. Appellant stated he personally slept on the
mat for two or three weeks. Appellant further asserted he spent most of his
time in his cell, “usually” spending two hours per day outside the cell for rec-
reation and one hour outside for meals. Appellant stated his first sergeant vis-
ited him twice at the facility, and he told his first sergeant about his confine-
ment conditions. However, Appellant acknowledges he did not file a grievance
with the confinement facility because he “did not think it would change any-
thing,” and he did not file an Article 138, UCMJ, complaint with his command
because he “did not know what that was or what [he] was required to do.”
In response, the Government moved to attach a declaration from BE, the
correctional treatment administrator for the confinement facility. BE disputed
Appellant’s claim regarding the size of his cell, asserting it was in fact 7 feet
by 13 feet. BE also asserted Appellant was allotted four hours per day of rec-
reation time, not including meal times, and was generally permitted to leave
his cell as needed to “use the bathroom.” BE agreed with Appellant that three
confinees were housed in Appellant’s cell for the majority of Appellant’s time
at the facility due to overcrowding. He further stated there was no record Ap-
pellant filed a complaint or grievance with the facility regarding any issue.
2. Law
We review de novo whether an appellant has been subjected to impermis-
sible conditions of confinement in violation of the Eighth Amendment or Article
55, UCMJ. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F. 2007) (citing
United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)).
“Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and
unusual punishment. In general, we apply the Supreme Court’s interpretation
of the Eighth Amendment to claims raised under Article 55, UCMJ, except
where legislative intent to provide greater protections under Article 55, UCMJ,
is apparent.” United States v. Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015),
aff’d, 75 M.J. 264 (C.A.A.F. 2016) (citations omitted). To demonstrate a viola-
tion of the Eighth Amendment, an appellant must show:
(1) an objectively, sufficiently serious act or omission resulting
in the denial of necessities; (2) a culpable state of mind on the
part of prison officials amounting to deliberate indifference to
[his] health and safety; and (3) that he “has exhausted the pris-
oner-grievance system . . . and that he has petitioned for relief
under Article 138, UCMJ, 10 USC § 938 [2000].”
United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (omission and second
alteration in original) (internal citations omitted).
17
United States v. Wermuth, No. ACM 39856 (f rev)
As a general rule, a CCA reviewing a case referred to it “cannot consider
matters outside the ‘entire record,’” defined as the “record of trial,” “allied pa-
pers,” and “briefs and arguments that government and defense counsel (and
the appellant personally) might present regarding matters in the record of trial
and ‘allied papers.’” United States v. Jessie, 79 M.J. 437, 440–41 (C.A.A.F.
2020) (citing R.C.M. 1103(b)(2) and (3) (2016 MCM); United States v. Healy, 26
M.J. 394, 396 (C.M.A. 1988); United States v. Fagnan, 30 C.M.R. 192, 194
(C.M.A. 1961)). In Jessie, the CAAF recognized that its decisions since Fagnan
indicated two exceptions to this general rule. Id. at 442–43. First, “some prec-
edents have allowed the CCAs to supplement the record” with affidavits or
hearings “when deciding issues that are raised by materials in the record.”
Jessie, 79 M.J. at 442. Second, CAAF precedents also “allowed appellants to
raise and present evidence of claims of cruel and unusual punishment and vi-
olations of Article 55, UCMJ, even though there was nothing in the record re-
garding those claims.” Id. at 444.
3. Analysis
Appellant personally contends the conditions of his civilian post-trial con-
finement described in his declaration—specifically the requirement that he
sleep on the floor and the confinee-to-square-footage ratio—contravened Air
Force confinement standards and amounted to cruel and unusual punishment
under the Eighth Amendment and Article 55, UCMJ. See Air Force Manual
31-115, Department of the Air Force Corrections System, ¶ 4.1.1. (22 Dec. 2020).
Under Jessie, we may consider Appellant’s declaration with respect to the al-
leged violations of the Eighth Amendment and Article 55, UCMJ.
We note BE’s declaration contradicts Appellant’s declaration in certain re-
spects as described above. We find a post-trial evidentiary hearing is not re-
quired to resolve the discrepancies. See 10 U.S.C. § 866(f)(3); United States v.
Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Even if we resolved the differences in
Appellant’s favor, he would not be entitled to relief. See Ginn, 47 M.J. at 248.
In order to secure relief, Appellant bears the burden to satisfy all three
prongs of the test set forth in Lovett. Without deciding whether Appellant has
met his burden with respect to the first or second prongs, we find he has com-
prehensively failed to satisfy the third. Despite ample opportunity to do so, and
despite being specifically instructed on the requirement to seek administrative
relief, Appellant failed to file any grievance or complaint with the confinement
facility; declined to raise any concern with the convening authority either in
clemency or in response to the SJAR; and failed to file an Article 138, UCMJ,
complaint with his command. In rare cases, we have found cause to excuse
failure to exhaust such remedies. See, e.g., United States v. McGriff, No. ACM
39306, 2018 CCA LEXIS 567, at *20–23 (A.F. Ct. Crim. App. 11 Dec. 2018)
(unpub. op.); United States v. Meakin, No. ACM 38968, 2017 CCA LEXIS 476,
18
United States v. Wermuth, No. ACM 39856 (f rev)
at *35 (A.F. Ct. Crim. App. 14 Jul. 2017) (unpub. op.), aff’d, 78 M.J. 396(C.A.A.F. 2019); United States v. Alexander-Lee, No. ACM S31784, 2012 CCA
LEXIS 95, at *9–11 (A.F. Ct. Crim. App. 16 Mar. 2012) (unpub. op.). However,
Appellant offers no persuasive reason for not pursuing such measures. Accord-
ingly, Appellant has failed to demonstrate he is entitled to relief.
Appellant further contends that even if he cannot satisfy the Lovett criteria,
this court should grant relief under our authority pursuant to Article 66,
UCMJ, to review his sentence for appropriateness in light of legal deficiencies
in the conditions of his confinement. See United States v. Gay, 75 M.J. 264, 269
(C.A.A.F. 2016). However, in United States v. Willman, the CAAF explained
that although Jessie permits a CCA to review material from outside the “entire
record” with respect to alleged violations of the Eighth Amendment and Article
55, UCMJ, it may not do so with respect to sentence appropriateness review
more generally, “even when it had already considered that evidence to resolve
Appellant’s Eighth Amendment and Article 55, UCMJ, [ ] claims.” 81 M.J. 355,
361 (C.A.A.F. 2021). Moreover, apart from Appellant’s declaration, the condi-
tions of Appellant’s post-trial confinement were not otherwise “raised by ma-
terials in the record.” Jessie, 79 M.J. at 442. Accordingly, Appellant has failed
to demonstrate he is entitled to sentence appropriateness relief under Gay.
III. CONCLUSION
The approved findings and sentence as entered are correct in law and fact,
and no error materially prejudicial to the substantial rights of Appellant oc-
curred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accord-
ingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
19