United States v. Braum ( 2024 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40434
________________________
UNITED STATES
Appellee
v.
Zachary R. BRAUM
Captain (O-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 10 October 2024 1
________________________
Military Judge: Mark F. Rosenow (pretrial); Shad R. Kidd (trial).
Sentence: Sentence adjudged 28 October 2022 by GCM convened at
McConnell Air Force Base, Kansas. Sentence entered by military judge
on 6 December 2022: Dismissal, confinement for 9 years, forfeiture of
all pay and allowances, and a reprimand.
For Appellant: Scott R. Hockenberry, Esquire (argued); Major Jenna M.
Arroyo, USAF; Captain Samantha M. Castanien, USAF; Brian A. Pris-
tera, Esquire.
For Appellee: Major Jocelyn Q. Wright, USAF (argued); Colonel Mat-
thew D. Talcott, USAF; Lieutenant Colonel J. Pete Ferrell, USAF; Lieu-
tenant Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before ANNEXSTAD, DOUGLAS, and MASON, Appellate Military
Judges.
Judge MASON delivered the opinion of the court, in which Senior Judge
ANNEXSTAD and Judge DOUGLAS joined.
________________________
1 The court heard oral argument in this case on 2 July 2024.
United States v. Braum, No. ACM 40434
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MASON, Judge:
A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of three specifications of rape, three specifications of sex-
ual assault, and one specification of abusive sexual contact; three specifications
of domestic violence; and one specification of reckless operation of an aircraft,
in violation of Articles 120, 128, and 113, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 920, 928, 913.2,3 The military judge sentenced Appellant
to a dismissal, confinement for nine years, forfeiture of all pay and allowances,
and a reprimand. Appellant requested deferment of the automatic forfeitures
for a period of four months. The convening authority denied Appellant’s defer-
ment request and took no action on the findings or sentence.
Appellant raises nine issues on appeal which we have reworded and reor-
dered: (1) whether the military judge erred by denying a defense motion to
compel disclosure of contents of BE’s phone or dismiss all charges and specifi-
cations with prejudice; (2) whether Appellant’s convictions are factually suffi-
cient; (3) whether it was plain error for trial counsel to ask a witness whether
the witness felt the victim had misled her about a collateral matter after the
victim was cross-examined and denied lying about the collateral matter; (4)
whether the military judge’s instructions regarding prior inconsistent state-
ments were erroneous; (5) whether trial defense counsel were ineffective when
they failed to recognize the proper uses of prior statements; (6) whether Appel-
lant’s conviction for rape in Specification 1 of Charge I is ambiguous; (7)
whether trial counsel’s findings argument amounted to prosecutorial miscon-
duct; (8) whether Appellant’s sentence that includes consecutive confinement
terms is unlawful; and (9) whether Appellant was denied his right to a unani-
mous verdict.4 Additionally, we consider another issue, (10) whether Appellant
is entitled to relief for delays in post-trial processing in accordance with United
2 Unless otherwise noted, all references in this opinion to the UCMJ, Military Rules of
Evidence (Mil. R. Evid.), and Rules for Courts-Martial are to the Manual for Courts-
Martial, United States (2019 ed.).
3 Appellant was acquitted of two specifications of sexual assault and two specifications
of domestic violence. The language “on divers occasions” was excepted by the military
judge pursuant to R.C.M. 917 for one of the sexual assault convictions. The members
found Appellant guilty by excepting the language “on divers occasions” for one of the
domestic violence convictions.
4 Appellant raises issue (9) pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
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United States v. Braum, No. ACM 40434
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), or in the alternative, United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).
We have carefully considered Appellant’s allegations of error as to issues
(3), (5), and (9) above and find they do not require discussion or relief. See
United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Regarding issue (4),
we find that Appellant waived this issue. United States v. Davis, 79 M.J. 329,
332 (C.A.A.F. 2020). As to the remaining issues, we find no error materially
prejudicial to Appellant’s substantial rights and affirm the findings and sen-
tence.
I. BACKGROUND5
Appellant met a woman, BE, around Thanksgiving 2019 through an online
dating application. They began dating and their relationship quickly pro-
gressed. BE described the early stages of their sexual relationship as “sweet
and romantic.”
In mid-April 2020, Appellant was piloting a small aircraft with BE seated
next to him as a passenger. Appellant wanted to join the “Mile High Club,”
which was described as an informal group of individuals who have engaged in
sexual intercourse while flying. During one flight, the two engaged in sexual
intercourse.6 Later, Appellant bragged about finally joining the Mile High Club
and presented BE with a Mile High Club pin. On a subsequent occasion, Ap-
pellant forced his penis to penetrate BE’s mouth while the two were on the
small aircraft. BE attempted to resist but eventually stopped because she felt
that there was a danger of crashing the airplane. In his flight logbook, Appel-
lant used stars to mark the dates and times when he and BE engaged in sexual
acts while flying. BE identified those entries during her testimony.
On 16 May 2020, Appellant and BE were at a friend’s house, visiting and
drinking alcohol. Appellant asked BE if she would be willing to “spice up [their]
life in the bedroom.” Later that evening, while they were at Appellant’s house,
Appellant engaged in sexual intercourse with BE. The intercourse began con-
sensually. However, unbeknownst to BE, Appellant retrieved a bullwhip.7
While penetrating her, Appellant wrapped the bullwhip around BE’s neck sev-
eral times and applied pressure causing her to pass out. BE eventually
5The following background is drawn primarily from BE’s trial testimony, supple-
mented by other evidence from the record of trial.
6 BE testified that this intercourse was nonconsensual. The members acquitted appel-
lant of the offense encompassing this conduct.
7 BE subsequently learned that Appellant kept a box under his bed with certain items
that he occasionally used during sex. She was not allowed to see what was in the box.
3
United States v. Braum, No. ACM 40434
regained consciousness and noticed semen on the inner part of her thigh and
her vagina. The next day, Appellant commented that the bullwhip was “awe-
some,” winked at BE, and walked away. In her testimony, BE explained she
did not respond because she was scared. BE did not consent to Appellant stran-
gling her with the bullwhip or continuing to penetrate her while she was
passed out.
Around 20 May 2020, Appellant and BE engaged in sexual intercourse. It
began consensually. Without discussion or permission, Appellant put a ball gag
over her head and in her mouth. BE did not fight it because she thought that
“it will get over faster” if she did not. She could breathe with the ball gag on as
it had holes in it. A few days later, about 25 May 2020, while having sexual
intercourse, Appellant again put the ball gag on BE. This time was different.
BE attempted to breathe through the holes in the ball gag, but was unable to
breathe. Appellant started pinching her nose and holding it closed. BE strug-
gled, moving her head side-to-side, but Appellant held her nose and appeared
to become more excited by her struggle. When Appellant finished having sex-
ual intercourse with BE, he removed the ball gag. He asked BE, “[D]id you
notice anything different this time?” BE said that she could not breathe. Ap-
pellant chuckled and said, “[Y]eah, I put Q-tips in here and I cut the ends off.”
The broken cotton swabs blocked the breathing holes. BE told Appellant that
it was scary, to which Appellant replied, “You’ll be fine.”
Despite these incidents, BE remained with Appellant because she thought
he was charming and sweet beyond these occurrences. Also, BE, a single
mother, appreciated having Appellant as a father figure for her two children.
BE perceived that when Appellant drank alcohol, he was a different person.
In the course of their relationship, the topic of breast augmentation arose
in their conversations. They decided that BE would get a breast augmentation
and scheduled the surgery for 24 June 2020. After the surgery and upon her
return home, Appellant was responsible for helping BE recover. In the days
following the surgery, Appellant sexually assaulted BE on multiple instances
in a variety of different ways: orally, vaginally, and anally with his penis, fin-
ger and an enema injector.8 BE was physically unable to resist because she was
in post-surgical recovery. In one instance, Appellant unexpectedly placed a
plastic bag over BE’s head and began suffocating her. After he removed the
bag, he immediately penetrated her mouth with his penis.
8 BE’s testimony provided details of the individual instances including how Appellant’s
penetration induced her vomiting, which was met with Appellant backhanding her to
the face and saying later, “that was hot.”
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United States v. Braum, No. ACM 40434
Following the days of sexual and physical assault and abuse, BE had de-
cided that she needed to escape. She noted that Appellant had an upcoming
deployment. Her plan was to leave with her children and cut off communica-
tions with him when he left, and at that point, she would never have to see him
again.
Before the scheduled deployment, on 12 July 2020 Appellant and BE at-
tended a family gathering. While there, Appellant was sprayed by a skunk.
Appellant showered and attempted to remove the smell before going to bed. He
and BE agreed that he would sleep in another room because he could not get
rid of the skunk smell. Before Appellant went to the other room, he wanted a
goodnight kiss from BE. BE reluctantly gave him a quick kiss. This was not
enough for Appellant. He snatched BE’s phone away from her and pushed her
causing her to hit her shin on the bed frame. Hearing the commotion, BE’s
eight-year-old daughter came to the room. She began screaming and crying.
She told Appellant to stop hurting her mother. Appellant said it was BE’s fault
but that he still loved her (the daughter). The daughter said, “[I]f you love me,
you will stop hurting my mom.” The daughter ran downstairs and called BE’s
mother, who lived close by. Meanwhile Appellant started filling a bag with
items. During the exchange, Appellant said to BE, “[D]on’t call 911, you’ll ruin
my career,” and returned BE’s phone. Within a few minutes, BE’s mother and
BE’s brother arrived at the home. BE’s mother took BE’s daughter out of the
home. BE’s brother supervised as Appellant filled the bag and left the home.
The next day, BE talked to a family friend who worked for a local civilian
law enforcement agency about what happened. An investigation ensued.
II. DISCUSSION
A. Defense Motion to Dismiss or Compel Disclosure or Production
Appellant alleges the military judge erred by denying his motion to dismiss
or, in the alternative, ordering production or disclosure to trial defense counsel
the full extraction of BE’s cell phone.
1. Additional Background
Following BE’s report to civilian law enforcement, the agency contacted the
Air Force Office of Special Investigations (OSI). OSI became the lead agency
for the investigation. OSI received information regarding BE’s prior interview
with the civilian law enforcement agency. On 29 July 2020, the two agencies
conducted a joint interview of BE. BE referenced her phone multiple times in
answering questions. They asked BE if she would consent to provide infor-
mation from her phone. BE consented to the investigators downloading loca-
tion-related information. They explained to BE that the entire contents of the
phone would be downloaded but that the search would be limited to the
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United States v. Braum, No. ACM 40434
location-related information, in accordance with BE’s consent. Investigators
downloaded information from BE’s phone and returned the phone to her. The
information downloaded was placed on a flash drive that the civilian law en-
forcement agency kept as evidence.
Pretrial, the Defense repeatedly requested disclosure of BE’s cellphone ex-
traction. Trial counsel responded to these requests. Prior to 1 June 2022, trial
counsel was apparently not aware BE’s cell phone data had been extracted. On
1 June 2022, trial counsel advised trial defense counsel that the extraction con-
tained more than location data, but BE’s consent was limited to location data
and thus the Government’s review of the extraction was limited to location
data. In response to the defense request, but limiting the response consistent
with BE’s consent parameters, trial counsel disclosed thousands of pages of
location data to trial defense counsel.
Trial defense counsel moved to dismiss all charges and specifications with
prejudice alleging discovery violations by trial counsel. Alternatively, trial de-
fense counsel requested that the military judge order disclosure of the full con-
tents of BE’s cell phone or, if the military judge found that the contents were
not in the custody and control of the Government, production of the evidence
pursuant to Rule for Courts-Martial (R.C.M.) 703. The military judge found
that the Government was negligent in not knowing about the cell phone data
and informing the Defense of its existence. After having received evidence and
hearing arguments on the motion, the military judge determined that the
granted continuance of four months remedied the neglect and denied the mo-
tion to dismiss. The military judge also denied the motion to compel disclosure
or production.
2. Law
In reviewing discovery matters, we conduct a two-step analysis: “first, we
determine whether the information or evidence at issue was subject to disclo-
sure or discovery; second, if there was nondisclosure of such information, we
test the effect of that nondisclosure on the appellant’s trial.” United States v.
Coleman, 72 M.J. 184, 187 (C.A.A.F. 2013) (quoting United States v. Roberts,
59 M.J. 323, 325 (C.A.A.F. 2004)). The Government shall, after service of
charges, upon a defense request, permit inspection of items “relevant to de-
fense preparation.” R.C.M. 701(a)(2)(B)(i). Roberts is instructive on how to re-
view a military judge’s discovery decision:
An appellate court reviews a military judge’s decision on a re-
quest for discovery for abuse of discretion. United States v. Mor-
ris, 52 M.J. 193, 198 (C.A.A.F. 1999). A military judge abuses his
discretion when his findings of fact are clearly erroneous, when
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United States v. Braum, No. ACM 40434
he is incorrect about the applicable law, or when he improperly
applies the law.
59 M.J. at 326.
“[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87 (1963). “A military accused also has the
right to obtain favorable evidence under Article 46, UCMJ, 10 U.S.C. § 846(2006), as implemented by R.C.M. 701–703.” Coleman, 72 M.J. at 186–87 (foot-
notes omitted). Accordingly, “Article 46[, UCMJ,] and its implementing rules
provide greater statutory discovery rights” to a military accused than those
afforded by the Constitution. Id. at 187 (citations omitted); see also Roberts, 59
M.J. at 327 (analyzing the “the broad nature of discovery rights granted the
military accused under Article 46,” UCMJ).
Article 46(a), UCMJ, states, “the trial counsel, the defense counsel, and the
court-martial shall have equal opportunity to obtain witnesses and other evi-
dence. . . .” (Emphasis added).
“Trial counsel must exercise due diligence in discovering [favorable evi-
dence] not only in his possession but also in the possession . . . of other ‘military
authorities’ and make them available for inspection.” United States v. Jackson,
59 M.J. 330, 334 (C.A.A.F. 2004) (alterations in original) (quoting United States
v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993)). “[T]he parameters of the review
that must be undertaken outside the prosecutor’s own files will depend in any
particular case on the relationship of the other governmental entity to the pros-
ecution and the nature of the defense discovery request.” United States v. Wil-
liams, 50 M.J. 436, 441 (C.A.A.F. 1999). The scope of this due-diligence require-
ment is generally limited to:
(1) the files of law enforcement authorities that have partici-
pated in the investigation of the subject matter of the charged
offenses; (2) investigative files in a related case maintained by
an entity closely aligned with the prosecution; and (3) other files,
as designated in a defense discovery request, that involved a spe-
cific type of information within a specified entity.
Id. (internal quotation marks and citations omitted).
Where the defense makes a “specific [discovery] request for the undisclosed
information . . . [,] we apply the heightened constitutional harmless beyond a
reasonable doubt standard.” Coleman, 72 M.J. at 187 (citations omitted).
In addition to the discovery rights described above, R.C.M. 703 provides
that “[e]ach party is entitled to the production of evidence which is relevant
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United States v. Braum, No. ACM 40434
and necessary.” R.C.M. 703(e)(1); United States v. Rodriguez, 60 M.J. 239, 246
(C.A.A.F. 2004). Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence” and “is of conse-
quence in determining the action.” Mil. R. Evid. 401. “Relevant evidence is nec-
essary when it is not cumulative and when it would contribute to a party’s
presentation of the case in some positive way on a matter in issue.” Rodriguez,
60 M.J. at 246 (internal quotation marks and citation omitted). The moving
party is required, as a threshold matter, “to show that the requested material
existed.” Id.
3. Analysis
a. Dismissal
The military judge did not abuse his discretion in denying the defense Mo-
tion to Dismiss with Prejudice all charges and specifications. As the military
judge correctly noted, dismissal is a drastic remedy that is not appropriate
where alternative remedies exist that can render an error harmless. United
States v. Stellato, 74 M.J. 473, 488 (C.A.A.F. 2015) (citation omitted). Regard-
ing trial counsel’s failure to timely disclose the location data to trial defense
counsel, the military judge granted a continuance for the length of time re-
quested in the joint motion. He correctly concluded that the trial defense coun-
sel failed to show prejudice in light of this continuance because they had “the
same amount of time [as the trial counsel] to review the evidence, adjust its
strategy if necessary, and perform additional investigation if necessary.” He
also found that the Defense failed to substantiate their claim that their defense
was “irrevocably damaged.” Rather, the military judge discussed the matters
before the court regarding specific witnesses and counsel availability and
found that “the [D]efense has failed to demonstrate that the continuance al-
ready granted does not suffice to remedy any prejudice caused by the [G]overn-
ment’s negligence.”
Regarding the nondisclosure of the other contents of the extraction of BE’s
cell phone, for the reasons discussed below, the nondisclosure, if erroneous, did
not result in any prejudice. Therefore, dismissal would not have been an ap-
propriate remedy.
b. Disclosure or Production
The military judge found that disclosure of the entirety of the extraction of
BE’s phone was not required. In doing so, he concluded that only the location
data, which BE consented to provide, was in the “‘legal’ possession, custody, or
control” of the Government, noting that while such requirement was not stated
in R.C.M. 701(a)(2)(A), it was “necessarily implied.” Appellant argues that the
military judge erred by concluding that there was a distinction in trial coun-
sel’s obligations to disclose items in the possession, custody, or control of the
8
United States v. Braum, No. ACM 40434
Government versus items in the “legal” possession, custody, or control of the
Government under the discovery rules. We need not decide whether a trial
counsel has an obligation to disclose in one instance and not the other to resolve
Appellant’s claim of error. We can presume error and resolve the matter by
evaluating prejudice.
Here, the nondisclosure of the contents of BE’s phone was harmless beyond
a reasonable doubt. Trial defense counsel sought and argued that they were
entitled to the entirety of the extraction of BE’s phone. However, they already
had the text message conversation between BE and Appellant. This conversa-
tion included pictures included in the text message conversations about which
they were seeking additional disclosure or production. The military judge
noted that the Defense was already in possession of the text messages between
BE and Appellant. At trial, BE was cross-examined with those 91 pages of text
message exchanges, including the pictures. The military judge recognized,
The [D]efense already has the evidence that BE had the pictures,
sent them to [Appellant], and sent the messages to [Appellant].
Evidence that BE sent the pictures carries with it the logical in-
ference, as the [D]efense suggests, that she had them on her
phone, from which it can be argued that they were sent to her or
sought out and downloaded by her.
Furthermore, the military judge found,
[t]he [D]efense failed to demonstrate (1) that the evidence sought
of how the pictures allegedly sent from BE got onto BE’s phone
exists [on the full extraction], (2) that any such evidence is nec-
essary, particularly in light of the evidence already available to
the [D]efense, or (3) that the possibility of the existence of such
evidence which might be of any assistance to the [D]efense war-
rants the production of the [full extraction of the phone].
In other words, in addition to the disclosed location data, the Defense al-
ready had the evidence that was likely to be found on the phone that would be
helpful to them in the form of the pictures and the 91 pages of text message
exchanges. That there was any additional helpful information to the Defense
on the remaining portions of the extraction was highly speculative. Our review
of the record leaves us convinced that the nondisclosure of the full extraction
of the phone sought by the Defense, if it was erroneous, was harmless beyond
a reasonable doubt.
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United States v. Braum, No. ACM 40434
B. Factual Sufficiency
1. Law
We review issues of factual sufficiency de novo. United States v. Washing-
ton, 57 M.J. 394, 399 (C.A.A.F. 2002).
“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,’ [this] court is ‘convinced of the [appellant]’s guilt beyond a rea-
sonable doubt.’” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this
unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying
‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our]
own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.’” United States v. Wheeler,
76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting
Washington, 57 M.J. at 399). This court’s review of the factual sufficiency of
evidence for findings is limited to the evidence admitted at trial. United States
v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (citations omitted); United States v.
Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (citation omitted).
2. Analysis
Appellant challenges the factual sufficiency of each of his convictions.9 He
essentially argues that BE’s testimony could not be believed beyond a reason-
able doubt because it was uncorroborated, inconsistent, and undercut by a wit-
ness who opined that BE was untruthful.
Appellant argues first that the “crucial points of BE’s allegations were un-
corroborated.” It is unremarkable that conclusive evidence related to the spe-
cific elements of some of the offenses outside of BE’s testimony was not pre-
sented. In cases involving physical or sexual assault where only two people are
typically present, it is often the case that such evidence is unavailable. How-
ever, to say that BE’s testimony was uncorroborated is inaccurate. The Gov-
ernment presented evidence that the mechanisms used to complete offenses
(e.g., bullwhip and ball gag) were found exactly where BE said they could be
found and admitted pictures of those items. The Government presented evi-
dence that supported pertinent parts of BE’s testimony, specifically, a picture
of the Mile High Club pin Appellant gave to BE as well as the logbook marked
with stars on applicable dates, which matched the dates BE provided as the
9 Appellant does not assert the military judge incorrectly instructed on the elements of
each of the specifications at issue. As Appellant’s challenge to the factual sufficiency of
his convictions centers on BE’s credibility, we address those arguments without iden-
tifying each element of each offense of which Appellant was convicted.
10
United States v. Braum, No. ACM 40434
offense dates. The Government presented a picture of the bruising to BE’s shin
after being pushed into the bedframe. Additionally, the Government presented
testimony from BE’s mother, brother, and daughter who corroborated the 12
July 2020 incident. The evidence presented sufficiently corroborated BE’s tes-
timony to support a finding that the convictions were factually sufficient.
Appellant next argues that BE’s testimony was inconsistent. Trial defense
counsel was fully permitted to explore potential inconsistencies with BE on
cross-examination at trial. BE provided reasonable explanations for the incon-
sistencies raised. Review of BE’s testimony in full, and the examination related
to inconsistencies in particular, does not raise reasonable doubt in our minds
as to Appellant’s guilt of the offenses.
Finally, Appellant points to BE’s former friend’s testimony that BE was
untruthful. The members were also presented with testimony from this wit-
ness that at some point BE blocked the witness on social media, making the
witness feel cast aside, and that the witness did not like that. The members
were presented with this testimony and were able to assess the witness’s cred-
ibility. This testimony alone or in conjunction with the remainder of the evi-
dence in this case does not raise a reasonable doubt in our minds as to Appel-
lant’s guilt of the offenses.
After weighing the evidence in the record of trial and making allowances
for not having personally observed the witnesses, we are convinced of Appel-
lant’s guilt beyond a reasonable doubt. Reed, 54 M.J. at 41.
C. Ambiguous Conviction
1. Law
We review de novo whether a verdict is ambiguous such that it precludes
us from performing a factual sufficiency review. United States v. Ross, 68 M.J.
415, 417 (C.A.A.F. 2010) (citation omitted).
A Court of Criminal Appeals (CCA), in the course of its review process, can-
not conduct “a factual sufficiency review of an [appellant’s] conviction when
‘the findings of guilty and not guilty do not disclose the conduct upon which
each of them [were] based.”’ United States v. Trew, 68 M.J. 364, 366 (C.A.A.F.
2010) (quoting United States v. Walters, 58 M.J. 391, 397 (C.A.A.F. 2003)).
“With minor exceptions for capital cases, a ‘court-martial panel, like a ci-
vilian jury, returns a general verdict and does not specify how the law applies
to the facts, nor does the panel otherwise explain the reasons for its decision to
convict or acquit.’” United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007)
(quoting United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997)).
“A factfinder may enter a general verdict of guilt even when the charge
could have been committed by two or more means, as long as the evidence
11
United States v. Braum, No. ACM 40434
supports at least one of the means beyond a reasonable doubt.” Id. (citing
United States v. Griffin, 502 U.S. 46, 49–51 (1991)) (additional citation omit-
ted).
“It makes no difference how many members chose one act or the other, one
theory of liability or the other. The only condition is that there be evidence
sufficient to justify a finding of guilty on any theory of liability submitted to
the members.” United States v. Rodriguez, 66 M.J. 201, 205 (C.A.A.F. 2008)
(quoting Brown, 65 M.J. at 359).
2. Analysis
Appellant argues that we cannot conduct our review of his conviction for
rape by using unlawful force on divers occasions between 17 May 2020 and 25
May 2020 because he was charged and acquitted of sexual assault by commit-
ting a sexual act on divers occasions between 17 April 2020 and 4 July 2020.
Appellant argues that he could not be guilty of the elements of the rape as
alleged in Specification 1 of Charge I without also being guilty of each and
every element of Specification 4 of Charge I. We disagree.
Review of the record makes it clear that the factual basis for the rape spec-
ification at issue was Appellant’s conduct related to his use of the bullwhip and
ball gag. BE’s testimony closely matched the charged timeframe, indicating
that the bullwhip incident happened on the evening of 16 May 2020 (into the
early morning hours of 17 May 2020), that the first ball gag incident occurred
about 20 May 2020 and the second about 25 May 2020. Further, trial counsel
made it known to the members that this conduct was the basis for this rape
specification.10
This clarity is emphasized by the fact that trial defense counsel did not
request or move for a bill of particulars, request more specific findings instruc-
tions related to this issue, or object to trial counsel’s findings argument assert-
ing that they were not on notice of which conduct substantiated this offense.
The conviction for Specification 1 of Charge I is not ambiguous and we are fully
able to complete our review of this conviction.
D. Trial Counsel Argument
Appellant alleges that trial counsel made several improper arguments and
as a result, requests the court to set aside the findings and sentence. His brief
raises five categories of allegations of improper argument, including:
10 In his findings argument, trial counsel said, “The rape referred to those times were
[sic] forcefully using the whip, forcefully using the ball gag. Now we[’]re just talking
about times of penetration of her vulva where she didn’t consent, and those are specif-
ically referring to the flying incidents.”
12
United States v. Braum, No. ACM 40434
comments on Appellant’s exercise of his rights; burden shifting; expressing
personal opinions, vouching, and bolstering; going beyond the evidence of rec-
ord; and injecting improper considerations.
Trial defense counsel did not object to any portion of the trial counsel’s ar-
guments or request any additional instructions in light of any of the arguments
presented.
1. Law
“Prosecutorial misconduct can be generally defined as action or inaction by
a prosecutor in violation of some legal norm or standard, e.g., a constitutional
provision, a statute, a Manual rule, or an applicable professional ethics canon.”
United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citations omitted). A pros-
ecutor’s interest “in a criminal prosecution is not that [the Government] shall
win a case, but that justice shall be done.” United States v. Fletcher, 62 M.J.
175, 179 (C.A.A.F. 2005) (quoting Berger v. United States, 295 U.S. 78, 88
(1935)).
We review prosecutorial misconduct and improper argument de novo.
United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation omitted). When
no objection is made at trial, we review for plain error. United States v. An-
drews, 77 M.J. 393, 398 (C.A.A.F. 2018) (footnote and citation omitted). “Plain
error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the
error results in material prejudice to a substantial right of the accused.” Id. at
401 (quoting Fletcher, 62 M.J. at 179).
“[A]rgument by a trial counsel must be viewed within the context of the
entire court-martial. The focus of [the] inquiry should not be on words in isola-
tion, but on the argument as ‘viewed in context.’” United States v. Baer, 53 M.J.
235, 238 (C.A.A.F. 2000) (quoting United States v. Young, 470 U.S. 1, 16 (1985))
(additional citations omitted). In performing our review, “it is improper to ‘sur-
gically carve’ out a portion of the argument with no regard to its context.” Id.Appellate judges must exercise care in determining whether a
trial counsel’s statement is improper or has improper connota-
tions. The [United States] Supreme Court has emphasized that
“a court should not lightly infer that a prosecutor intends an am-
biguous remark to have its most damaging meaning or that a
jury, sitting through lengthy exhortation, will draw that mean-
ing from the plethora of less damaging interpretations.”
United States v. Palacios Cueto, 82 M.J. 323, 333 (C.A.A.F. 2022) (quoting Don-
nelly v. DeChristoforo, 416 U.S. 637, 647, (1974)). Thus, “[a] statement that
might appear improper if viewed in isolation may not be improper when viewed
in context.” Id. (citing Donnelly, 416 U.S. at 645).
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United States v. Braum, No. ACM 40434
If we find a prosecutor’s argument “amounted to clear, obvious error,” we
then determine “whether there was a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” Voorhees, 79
M.J. at 9 (internal quotation marks and citations omitted). “For constitutional
errors, rather than the probability that the outcome would have been different,
courts must be confident that there was no reasonable probability that the er-
ror might have contributed to the conviction.” United States v. Tovarchavez, 78
M.J. 458, 462 n.5 (C.A.A.F. 2019) (citing Chapman v. California, 386 U.S. 18,
24 (1967)). That is, “where a forfeited constitutional error was clear or obvious,
‘material prejudice’ is assessed using the ‘harmless beyond a reasonable doubt’
standard set out in Chapman.” Id. at 460 (quoting United States v. Jones, 78
M.J. 37, 45 (C.A.A.F. 2018)). In analyzing prejudice from a prosecutor’s im-
proper argument, we consider: “(1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the weight of the evidence
supporting the conviction.” Andrews, 77 M.J. at 402 (quoting Fletcher, 62 M.J.
at 184).
“Absent evidence to the contrary, [we] may presume that members follow a
military judge’s instructions.” United States v. Taylor, 53 M.J. 195, 198
(C.A.A.F. 2000) (citations omitted).
“[T]he lack of a defense objection is ‘some measure of the minimal impact
of a prosecutor’s improper comment.’” United States v. Gilley, 56 M.J. 113, 123
(C.A.A.F. 2001) (quoting United States v. Carpenter, 51 M.J. 393, 397 (C.A.A.F.
1999)).
In a plain error analysis, the most straightforward way of resolving an alle-
gation of prosecutorial misconduct may be to do so based on prejudice. Palacios
Cueto, 82 M.J. at 335.
2. Analysis
Appellant urges us to find that trial counsel’s arguments were, in part,
comments on Appellant’s constitutional rights. He points first to trial counsel’s
use of the word “uncontroverted” when referring to Appellant’s sexual prefer-
ences as well as trial counsel’s arguments regarding BE’s refusal to turn over
her cell phone. Specifically, trial counsel stated,
He is a man who has some dark and frankly violent sexual ap-
petites. BDSM. He likes BDSM. That’s clear -- it’s uncontro-
verted. OSI told you about how they went into his home. Right?
They find the whips, the ball gags, the harnesses -- everything.
Clearly Captain Braum likes BDSM.
Appellant relies on our decision in United States v. Carter, No. ACM 35027,
2003 CCA LEXIS 257 (A.F. Ct. Crim. App. 17 Oct. 2003) (unpub. op.), where
we held that the trial counsel’s repeated characterization of the evidence as
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United States v. Braum, No. ACM 40434
“uncontradicted” and “uncontroverted” was an improper comment upon Appel-
lant’s exercise of his right to remain silent. This case is significantly distin-
guishable from Carter. Here, trial counsel’s singular use of the word “uncon-
troverted” was not a comment—directly, indirectly, or by innuendo—on the
fact that Appellant did not testify. BE’s testimony as well as the seizure by
investigators of items associated with this type of sexual activity provided a
factual basis for trial counsel’s argument. Furthermore, forms of evidence be-
sides Appellant’s testimony could have rebutted Government’s characteriza-
tion of his sexual proclivities. For example, testimony from Appellant’s previ-
ous partners, any other findings related to these interests (e.g., web searches,
purchase histories from Appellant’s accounts) could have been presented by
the Government or the Defense to undermine or support these assertions.
Thus, we find trial counsel’s comment on the state of the evidence in this par-
ticular case was not improper.11
Appellant next points to trial counsel’s rebuttal argument inviting the trial
defense counsel to “please explain in the host of lies that you claim there to be,
why is she lying about what happened to her?” He argues that such an argu-
ment shifts the burden to the Defense to disprove his guilt. We are mindful
that we must view argument by counsel “within the context of the entire court-
martial. The focus of [the] inquiry should not be on words in isolation, but on
the argument as ‘viewed in context.’” Baer, 53 M.J. at 238. First, this comment
asserts a deficiency in trial defense counsel’s argument in that BE did not have
a motive to lie. This comment urges the trial defense counsel to explain this
motive, if any, to the members. Second, this comment was made in rebuttal
minutes after trial defense counsel presented closing argument wherein he ac-
cused BE of lying, deceiving, and misleading trial counsel, the Defense, and
the members. These assertions were made no fewer than 15 times. The record
plainly demonstrates that trial counsel’s rebuttal comment here was in direct
response to trial defense counsel’s argument that BE was lying. This was not
a burden shift. It was a response to the highly emphasized theory that BE “lied
to [the court members]. She lied to the prosecutors. She lied to [trial defense
counsel] and she lied to law enforcement.” We hold that trial counsel’s invita-
tion to trial defense counsel to refer to evidence in the record to substantiate
11 We emphasize that the mere use of the words “uncontradicted” and “uncontroverted”
do not raise per se error. However, we note that trial counsel who choose to utter them
wade into dangerous waters.
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his repeated (and mostly improper) assertions that BE was lying was a fair
response.12
Beyond allegations that trial counsel improperly commented on Appellant’s
constitutional rights, Appellant alleges that trial counsel expressed his per-
sonal opinion, vouched, and bolstered BE’s testimony; went beyond the evi-
dence of record; and injected improper considerations. The first category of
comments relates to trial counsel stating in different variations that BE was
telling the truth. Our superior court has made clear that trial counsel asser-
tions in this way are obvious error. Voorhees, 79 M.J. at 12.
The next category of comments relates to trial counsel’s arguments essen-
tially providing “expert-like” commentary about victimology in domestic vio-
lence cases, dynamics of “BDSM” sexual relationships, and alcoholism. The in-
ferences trial counsel seems to make are not reasonably raised by the evidence
and were, therefore, error.
Appellant also points to trial counsel comments that inject improper con-
siderations. Trial counsel argued in relation to the reckless operation of an air-
craft offense, “This is not the kind of flying that can be approved of by the Air
Force. A pilot in the Air Force. That is reckless operation.” (Emphasis added).
This argument is obvious error.13
Appellant alleges impropriety in trial counsel’s rebuttal argument, “And so
again members I ask that you do the right thing in finding [Appellant] account-
able and finding him guilty of all charges and specifications.” (Emphasis
added.)
We note that trial defense counsel had argued earlier in his closing argu-
ment,
[Y]ou’re going to become -- looking at all the other evidence that
makes you have that uncomfortable feeling, and you’re going to
want to do the right thing. That’s human nature you’re going to
want to do the right thing. But that burden is for you, so tomor-
row when you wake up, you don’t have to think, “Did I get it
right?”
12 It is clear and obvious error for a counsel (trial or defense) to assert that a witness
is telling the truth or is lying. Voorhees, 79 M.J. at 10. Counsel may discuss the evi-
dence and emphasize what the evidence supports, but their personal opinions on the
veracity of a witness have no proper place in a court-martial proceeding.
13 During oral argument before this court, government appellate counsel conceded er-
ror with regards to this comment.
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United States v. Braum, No. ACM 40434
Trial counsel’s comment about doing “the right thing” seems to be in response
to this argument by trial defense counsel and was not improper.
Appellant points to other comments by trial counsel. We need not address
each of those individually. We presume, without deciding, that each of the re-
maining alleged improper statements were clear and obvious error and sub-
sume those statements in our analysis below regarding whether the argument
in its entirety resulted in prejudice to Appellant. As we do not find that trial
counsel’s comments pertain to Appellant’s constitutional rights, we need not
determine prejudice using the constitutional review standard of harmless be-
yond a reasonable doubt. Tovarchavez, 78 M.J. at 460. Rather, we apply the
plain error prejudice analysis to determine “whether there was a reasonable
probability that, but for the error, the outcome of the proceeding would have
been different.” Voorhees, 79 M.J. at 9 (internal quotations marks and citations
omitted). To do so, we evaluate “(1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the weight of the evidence
supporting the conviction.” Andrews, 77 M.J. at 402 (quoting Fletcher, 62 M.J.
at 184). We find that there is not a reasonable probability that, but for the
errors, the outcome of the proceeding would have been different.
The severity of the trial counsel misconduct was moderate. In making this
determination, we note multiple erroneous assertions but also recognize that
this case is not comparable to trial counsel’s argument in Voorhees. The prose-
cutor in Voorhees made “a spectacle of himself” relaying and bolstering the gov-
ernment’s case by touting his personal position and achievements. 79 M.J. at
13–14. This case does not involve such theatrics. While trial counsel’s asser-
tions that BE was telling the truth was improper, a review of this record illus-
trates that from the trial defense counsel’s opening statement through the com-
pletion of counsel’s closing arguments, the defense counsel’s advocacy centered
on assertions of BE’s veracity. Trial counsel argued that BE was telling the
truth and trial defense counsel argued that she was lying. Again, such asser-
tions by trial counsel were improper, but are not viewed in a vacuum ignoring
trial defense counsel’s simultaneous impropriety. The additional erroneous
comments were unpersuasive and seemingly unimpactful commentary, none
warranting objection and many not even prompting a defense response by way
of counter-argument.
There were no specific measures adopted to cure trial counsel’s improper
arguments. The military judge did instruct the members that each counsel’s
argument is not evidence and that it was the members’ responsibility to judge
the credibility of the witnesses. Trial defense counsel did not object to the ar-
guments. The record does not reflect whether this was a tactical decision to not
object in order to enable his continued expression of the theory that BE was
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United States v. Braum, No. ACM 40434
lying. Nevertheless, the lack of a defense objection is some measure of the min-
imal impact of a prosecutor’s improper comments. Gilley, 56 M.J. at 123.
As discussed above regarding the factual sufficiency challenges, the weight
of the evidence well supported the convictions. We also are compelled to recog-
nize that this officer-member panel, comprised of one O-6, two O-5s, two O-4s
and two O-3s, returned mixed findings in this case. This fact is particularly
germane to this prejudice analysis in that the members were obviously not led
down the primrose path set forth by the O-3 trial counsel or the O-4 trial de-
fense counsel in this case. The arguments were very lengthy, repetitive, and
not particularly persuasive from either side. Our review of the record leads us
to believe that the members endured counsel arguments, rather than having
been aided or persuaded by them. We are convinced that the members decided
this case based on the evidence alone, not by trial counsel’s (or trial defense
counsel’s) improper arguments. See United States v. Young, 470 U.S. 1, 17–18
(1985). Therefore, Appellant was not prejudiced by trial counsel’s erroneous
arguments.
E. Lawfulness of Consecutive Confinement Terms
1. Law
R.C.M. 1002 sets forth the guidance for determination of a sentence. When
an accused is sentenced by a military judge at a general or special court-mar-
tial, the military judge “shall determine an appropriate term of confinement
. . . for each specification for which the accused was found guilty.” R.C.M.
1002(d)(2)(A). The appropriate amount of confinement is determined for each
specification separately. R.C.M. 1002(d)(2)(A), Discussion. The appropriate
amount of confinement is left to the “discretion of the military judge subject to
these rules.” Id.“If a sentence includes more than one term of confinement, the military
judge shall determine whether the terms of confinement will run concurrently
or consecutively.” R.C.M. 1002(d)(2)(B).
The terms of confinement for two or more specifications shall run
concurrently—
(i) when each specification involves the same victim and the
same act or transaction;
(ii) when provided for in a plea agreement;
(iii) when the accused is found guilty of two or more specifica-
tions and the military judge finds that the charges and specifi-
cations are unreasonably multiplied; or
(iv) when otherwise appropriate under subsection (f) . . . .
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United States v. Braum, No. ACM 40434
Id. “A military judge may exercise broad discretion in determining whether
terms of confinement will run concurrently or consecutively consistent with
R.C.M. 1002(f).” R.C.M. 1002(d)(2)(B), Discussion.
“In sentencing an accused under this rule, the court-martial shall impose
punishment that is sufficient, but not greater than necessary, to promote jus-
tice and to maintain good order and discipline in the armed forces, taking into
consideration [several factors].” R.C.M. 1002(f).
2. Analysis
Appellant challenges the military judge’s sentence adjudging confinement
to run consecutively for Specifications 3, 6, and 9 of Charge I. In Specification
3, Appellant was convicted of raping BE by penetrating her mouth with his
penis using unlawful force on divers occasions between 17 April 2020 and 10
July 2020. In Specification 6, Appellant was convicted of committing a sexual
act on BE by penetrating her anus with an enema injector without her consent
on divers occasions on 5 July 2020. In Specification 9, Appellant was convicted
of abusive sexual contact on BE by causing his penis to touch her breasts with-
out her consent on divers occasions between 25 June 2020 and 10 July 2020.
We review a military judge’s determination that a specification’s confine-
ment term should run concurrently or consecutively to another specification
for abuse of discretion. See R.C.M. 1002(d)(2)(B), Discussion. The abuse of dis-
cretion standard is strict and involves “more than a mere difference of opinion.”
United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000). “The challenged
action must be arbitrary, fanciful, clearly unreasonable or clearly erroneous.”
Id. (internal quotation marks omitted) (quoting United States v. Miller, 46 M.J.
63, 65 (C.A.A.F. 1997)).
Whether an act or transaction is “the same” is a factual determination.
Here, the military judge’s determination that these acts or transactions were
not entirely the same is not clearly erroneous. Both parties acknowledge that
on some of the instances, there may have been some overlap between these
three specifications. They also acknowledge that there were incidents that did
not overlap. For example, regarding Specification 3, there were incidents
where Appellant committed this offense that were not within the same trans-
action as the acts committed in Specification 9. Appellant essentially argues
that because there may have been some overlap in the transactions between
some of the instances charged in the specifications, then the specifications
should have been treated as if all the transactions were “the same” pursuant
to R.C.M. 1002(d)(2)(B)(i). We decline to adopt this interpretation of this pro-
vision
A more appropriate way to read this provision is to merely give effect to the
plain language, “when each specification involves the same victim and the
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United States v. Braum, No. ACM 40434
same act or transaction.” R.C.M. 1002(d)(2)(B)(i).14 The presence of the lan-
guage “on divers occasions” may, when all of the occasions do not coincide with
other transactions encompassed in other specifications, remove the obligation
to adjudge concurrent confinement terms for these specifications.15
The military judge in Appellant’s case exercised his broad discretion to de-
termine whether terms of confinement will run concurrently or consecutively.
The military judge evaluated the evidence and adjudged that several of the
confinement terms would run concurrently, and several would run consecu-
tively. This determination was not arbitrary, fanciful, clearly unreasonable, or
clearly erroneous and thus, not an abuse of discretion.
F. Timely Appellate Review
1. Additional Background
The military judge sentenced Appellant on 28 October 2022. Appellant’s
record of trial was docketed with this court on 13 March 2023. Over the Gov-
ernment’s objection, this court granted Appellant’s nine requests for enlarge-
ment of time to file his assignments of error brief. Appellant’s brief was filed
on 9 February 2024, 333 days after the case was docketed with the court. On
16 May 2024, the Government filed their answer to Appellant’s brief. On 22
May 2024, Appellant filed his reply brief and requested to present oral argu-
ment. We granted the request and heard oral argument on 2 July 2024.
2. Law
This court recognizes “convicted servicemembers have a due process right
to timely review and appeal of [their] courts-martial convictions.” United
States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). A pre-
sumption of unreasonable delay also arises when appellate review is not com-
pleted, and a decision not rendered within 18 months of a case being docketed.
Id. at 142. If there is a presumptive or an otherwise facially unreasonable de-
lay, we examine the matter under the four non-exclusive factors set forth in
Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the
14 See also United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007) (holding in the absence
of a statutory definition, the plain language of a statute will control unless it is ambig-
uous or leads to an absurd result).
15 It is important to note that interpretation of the R.C.M. in this manner does not
erase a military judge’s ability to determine that a sentence should be adjudged utiliz-
ing concurrent confinement terms. It still permits him or her to do so after evaluating
the factors set forth in R.C.M. 1002(f). Rather, it is consistent with this Rule’s express
intent that a military judge should have “broad discretion in determining whether
terms of confinement will run concurrently or consecutively consistent with R.C.M.
1002(f).” R.C.M. 1002(d)(2)(B), Discussion.
20
United States v. Braum, No. ACM 40434
reasons for the delay; (3) the appellant’s assertion of the right to timely review
and appeal; and (4) prejudice.” Id. at 135 (citing Barker, 407 U.S. at 530) (ad-
ditional citations omitted). “No single factor is required for finding a due pro-
cess violation and the absence of a given factor will not prevent such a finding.”
Id. at 136 (citing Barker, 407 U.S. at 533). However, where an appellant has
not shown prejudice from the delay, there is no due process violation unless
the delay is so egregious as to “adversely affect the public’s perception of the
fairness and integrity of the military justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006).
3. Analysis
Decision in Appellant’s case was not rendered within 18 months from date
of docketing. However, Appellant has not raised any issue with this court con-
cerning the post-trial processing of his case and likewise has not claimed any
prejudice as a result of the delay.
In Moreno, the United States Court of Appeals for the Armed Forces iden-
tified three types of cognizable prejudice for purposes of an appellant’s due pro-
cess right to timely post-trial review: (1) oppressive incarceration; (2) anxiety
and concern; and (3) impairment of an appellant’s grounds for appeal. Moreno,
63 M.J. at 138–39 (citations omitted). As to the first type of prejudice, where
Appellant does not prevail on the substantive grounds of his appeal, there is
no oppressive incarceration. Id. at 139. Similarly, looking at the third type of
prejudice, where Appellant’s substantive appeal fails, his grounds for appeal is
not impaired. Id. at 140. Finally, with regards to the second type of prejudice,
anxiety and concern, “the appropriate test for the military justice system is to
require an appellant to show particularized anxiety or concern that is distin-
guishable from the normal anxiety experienced by prisoners awaiting an ap-
pellate decision.” Id. Appellant has made no showing of such particularized
anxiety or concern with respect to the delay in question, and we perceive none
in his case.
Finally, recognizing our authority under Article 66(d), UCMJ, 10 U.S.C.
§ 866(d), we have also considered whether relief for excessive post-trial delay
is appropriate in this case even in the absence of a due process violation. See
United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After considering the
factors enumerated in United States v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim.
App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude no such relief is
appropriate.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of the Appellant occurred.
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United States v. Braum, No. ACM 40434
Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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