United States v. Bunton ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Malik C. BUNTON
Corporal (E-4), U.S. Marine Corps
Appellant
No. 202100001
_________________________
Decided: 30 June 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Jeffrey V. Muñoz (arraignment and motions)
John P. Norman (motions and trial)
Sentence adjudged 12 September 2020 by a general court-martial con-
vened at Marine Corps Air Ground Combat Center Twentynine Palms,
California, consisting of members with enlisted representation. Sen-
tence in the Entry of Judgment: reduction to E-1, confinement for two
years, forfeiture of all pay and allowances, and a dishonorable dis-
charge.
For Appellant:
Lieutenant Commander Megan P. Marinos, JAGC, USN
United States v. Bunton, NMCCA No. 202100001
Opinion of the Court
For Appellee:
Lieutenant Megan E. Martino, JAGC, USN
Major Kerry E. Friedewald, USMC
Chief Judge MONAHAN delivered the opinion of the Court, in which
Senior Judge STEPHENS and Judge DEERWESTER joined.
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
MONAHAN, Chief Judge:
Appellant was convicted of sexual assault and abusive sexual contact [com-
mitted against Ms. Foxtrot1], conspiracy to commit extortion [committed
against a different female victim], failure to go to his appointed place of duty,
and false official statement in violation of Articles 120, 81, 86, and 107 Uniform
Code of Military Justice [UCMJ].2
Appellant asserts eight assignments of error [AOEs], which we renumber
as follows: (1) the military judge erred when he denied Appellant’s civilian de-
fense counsel’s [CDC’s] continuance requests, effectively denying Appellant his
right to counsel of his choice; (2) the taint of systematic exclusion of junior en-
listed Marines as potential panel members was not alleviated when two Cor-
porals junior in date of rank to accused were added to the list of potential mem-
bers; (3) the military judge’s finding instructions to the members that they
could convict with a non-unanimous vote violated Appellant’s rights under the
Sixth Amendment to the Constitution of the United States in light of Ramos v.
Louisiana;3 (4) after conducting an in camera review of Ms. Foxtrot’s medical
and Physical Evaluation Board records, the military judge erred by withhold-
1All names used in this opinion, except those of the judges, appellate counsel, and
Appellant are pseudonyms.
2 10 U.S.C. §§ 920, 881, 886, and 907.
3 140 S. Ct. 1390 (2020). We have reviewed this assigned error and find it to be
without merit. United States v. Matias, 25 MJ 356, 363 (C.M.A. 1987); United States
v. Causey, __ 80 MJ ___, No. 202000228, 2022 CCA LEXIS 176 (N-M. Ct. Crim. App.
March 23, 2022).
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Opinion of the Court
ing documents from the Defense that contained information related to her pre-
scription pain medication; (5) this Court violated Appellant’s appellate due pro-
cess rights by denying his request to review sealed materials; (6) the military
judge erred when he denied Appellant’s motion to compel the testimony of a
forensic psychiatrist as a witness on his behalf at trial; (7) Appellant’s trial
defense counsel [TDC] were ineffective in failing to move to suppress Appel-
lant’s statements to the Naval Criminal Investigative Service [NCIS] concern-
ing the alleged sexual assault and abusive sexual contact of Ms. Foxtrot; and
(8) Appellant’s conviction for false official statement is factually insufficient.
We find merit in Appellant’s sixth AOE, set aside his convictions for sexual
assault and abusive sexual contact as well as the sentence, affirm his remain-
ing convictions, and authorize a rehearing.4
I. BACKGROUND
A. Ms. Foxtrot Accuses Appellant of Sexual Assault and Abusive Sex-
ual Contact
Ms. Susan Foxtrot, a Marine Corporal [Cpl] (E-4) at the time of the events
in question, had been assigned to the Installation Personnel Administration
Center [IPAC] at Marine Corps Air Ground Combat Center Twentynine Palms,
California [MCAGCC]. She and other members of her command travelled to
San Diego, California, during the weekend of 15-17 March 2019 to celebrate
St. Patrick’s Day and to say farewell to Sergeant [Sgt] (E-5) Gina Victor, who
was preparing to transfer to a new duty station. Ms. Foxtrot drove to San Diego
by herself. However, Ms. Foxtrot shared a hotel room, containing two beds,
with Appellant and Sgt Victor for the weekend.
On Friday evening, Appellant, Sgt Victor, and Ms. Foxtrot went out drink-
ing with other members of the command at bars in San Diego. When they re-
turned to the room later that evening, Appellant slept in one bed, and Ms. Fox-
trot and Sgt Victor slept in the other.
On Saturday, Ms. Foxtrot and Sgt Victor spent the day shopping and sight-
seeing and returned to the hotel room where they met up with Appellant. At
the room, the three Marines ordered a pizza and got ready to go out for the
evening. Ms. Foxtrot and Sgt Victor drank “a few”5 beers before they left the
hotel. Appellant, Ms. Foxtrot, and Sgt Victor then went out to bars and clubs
where they met up with additional members of their command. In addition to
4 Although rendered moot by our resolution of AOE VI, we review AOEs IV, V, and
VII for reasons of judicial economy.
5 R. at 1490.
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Opinion of the Court
the beers she drank before leaving the hotel, Ms. Foxtrot drank a number of
other alcoholic drinks, including vodka mixed with caffeinated energy drinks,
throughout the night. Although the exact number of drinks she consumed is
unknown, her alcohol consumption that evening resulted in her getting intox-
icated, but not extremely so. She had her last drink at about 0200 on Sunday.
Eventually, Ms. Foxtrot decided to leave the group and attempted to meet
up with Sgt Fish, with whom she was pursuing a romantic relationship. After
her efforts did not work out, she gave up and returned to the hotel by herself.
However, Ms. Foxtrot did not have a key for the room, which meant that she
could not access the elevator or the room itself. Frustrated, Ms. Foxtrot un-
successfully attempted to call and text Sgt Victor, and then contacted Appel-
lant via Snapchat. Appellant’s advice on how Ms. Foxtrot could gain a key from
the front desk proved to be unhelpful, and she waited in the lobby until the
front desk employee eventually agreed to give her a key that gave her access
to use the elevator. After pounding on the door to the room, Sgt Victor even-
tually let her in sometime between 0300 and 0500.6 Once inside, Ms. Foxtrot
spoke briefly with Sgt Victor, changed her clothes, and went to sleep in the
room’s empty bed – the one unoccupied by Sgt Victor, who had returned to
sleep.
Ms. Foxtrot testified that she had no memory of when Appellant returned
to the room,7 when he got into bed with her, or when he engaged in sexual
activity with her while they were both lying in bed. Rather, her first memory
was waking up in the morning with him next to her in bed with his arm around
her and spooning her. Confused about why he was doing that, Ms. Foxtrot
rolled over, pushed him away and asked him what he was doing. In response,
Appellant giggled and said “What?” which she understood as him indicating
that he was not doing anything wrong.8
A short while later, Ms. Foxtrot got out of bed and checked her cell phone.
There, she found Snapchat messages from Appellant in which he told her that
he had “rubbed on” her the night before, as well as commenting on how big he
thought her breasts were, the fact that he had “fingered” her, and how “wet”
6 Ms. Foxtrot’s and Sgt Victor’s testimony diverged with regard to what time Sgt
Victor awoke to banging on the door and let Ms. Foxtrot into the room. Ms. Foxtrot
testified that it was “almost [0500]” but Sgt Victor testified that it was between 0300-
0400. R. 1499, 1607.
7 The evidence established that Appellant returned to the room shortly after 0500.
8 R. at 1549.
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she had been.9 When asked by trial counsel on direct examination how she felt
after she had read this she testified:
I was confused again. I don’t really believe it, and like, there’s
no way. I would’ve woken up as someone did this to me. I, kind
of, just ignored it. It was like weird and awkward, but I, like,
also don’t believe it, so I was trying not to pay any mind to it.10
Ms. Foxtrot went to the bathroom, called Sgt Fish, and had a conversation with
him. She then showered, got dressed, and shortly thereafter left the hotel be-
fore Appellant and Sgt Victor. Later that day, she drove back to her barracks
at Twentynine Palms.
The next day, Appellant messaged Ms. Foxtrot. Referring to her nipples
being pierced at the time, he said, “I didn’t know you had them done.”11 This
shocked her and led her to believe that maybe he had engaged in sexual activ-
ity with her as he said he had done in his previous messages to her. Later that
same day, he messaged her again and repeated the sexual activity that he had
engaged in with her, but this time was asking her, “Do you remember?”12 She
responded by telling Appellant that she did not remember, and, thus, did not
know why the sexual activity had happened. Ms. Foxtrot talked to her room-
mate about the situation, who opined that she had been sexually assaulted.
Subsequently, Ms. Foxtrot made a restricted report of sexual assault to her
staff sergeant who was also a uniformed victim advocate. After speaking with
her assigned victims legal counsel, she decided to go forward with an unre-
stricted report. Then, after being interviewed by NCIS agents, she agreed to
participate in a controlled text message with Appellant.
During that text conversation, Ms. Foxtrot directly asked Appellant what
he did to her and asserted that she did not know because she had been asleep.
Appellant acknowledged that he “fingered” her and touched her breasts after
he returned to the hotel around 0500.13 However, he maintained that the sex-
ual activity was consensual and expressly denied taking advantage of her while
she was sleeping. He explained, “I said…can I rub on you and you said yea [sic]
9 Id. at 1504.
10 Id.
11 Id. at 1506.
12 Id. at 1507.
13 Pros. Ex. 1 at 5.
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go ahead.”14 He also rejected Ms. Foxtrot’s response that he was lying and said,
“I wouldn’t just touch you without asking[.] [T]hat’s with any girl[.] That’s
some creeper s**t if I just started touching you lol[.]”15 Appellant also explained
why he had previously told Ms. Foxtrot “sorry”: “I said sorry because the next
day [because] you seemed like you never wanted me to do it[.] That’s why I said
sorry[.] I’m not lying tho[.] [sic]”16 When she persisted that he was lying and
asked him to tell her the truth, he replied, “I am telling you the truth[.] I didn’t
just start touching you[.]”17
At the end of the controlled text conversation, Appellant and Ms. Foxtrot
engaged in the following exchange regarding whether he was lying when he
had denied that she was sleeping when he engaged in sexual activity with her:
ACC: [Ms. Foxtrot,] how are you gonna tell me
I’m lying if you said you were sleeping lol
Ms. Foxtrot: Yeah I was sleeping so how could I have
said yes to you? I didn’t?
I know I was sleeping so I know I didn’t
say anything to you therefore you decided
to touch me without me saying yes
ACC: Okay
I don’t know what you want me to say or
do like I’m really not lying to you that’s
what’s making me just like it’s whatever.
Cause if the shoe was on the other foot I
wouldn’t be telling you that you are lying
when I truly don’t even know what [hap-
pened]
I’m just over it you don’t have to be cool
with me cause that situation is long and
gone. I’ll leave you alone and I just won’t
talk to you as you wish
Ms. Foxtrot: Then why did you ask on Snapchat if I re-
membered what you did to me?
14 Id. at 9.
15 Id.
16 Id. at 10.
17 Id. at 13.
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You asked cause you knew I was sleeping
You texted me in the morning telling me
that you fingered me cause you knew I
didn’t know what you did
ACC: I knew you were sleeping
But I’m wrong cause you said I could?
That’s why I asked if you remembered
cause I was gonna see if we could do
something else lol
But you got so mad so I was just like let
me leave it alone18
Four days after the controlled text conversation, Appellant was brought to
the NCIS office at Twentynine Palms, where he remained for over five hours.
While there, he was interrogated by Special Agent [SA] David Mike and an-
other agent. Throughout the interrogation, Appellant maintained that alt-
hough he did engage in sexual activity with Ms. Foxtrot, she had consented to
it.
B. Continuance Requests and Appellant’s Release of Civilian Defense
Counsel
Appellant’s trial was originally docketed for 12-15 May 2020 onboard
MCAGCC. In late-March 2020, the Government was in the process of securing
travel for multiple witnesses from international locations to California for trial.
March 2020 was also the advent of the COVID-19 global pandemic in the
United States. On 11 March 2020, the Department of Defense [DoD] promul-
gated travel restrictions and force health protection guidance directives which
strictly limited travel for all DoD personnel. Shortly thereafter, the Secretary
of Defense issued a stop-movement order for all domestic travel, PCS travel,
and leave beyond the local area which was in effect until 11 May 2020.
In response to these strictures, as well as additional stop movement guid-
ance from Headquarters Marine Corps, trial counsel and Appellant’s military
defense counsel filed a joint motion requesting a continuance of trial. In their
joint motion, the parties specifically highlighted the difficulty of executing in-
ternational travel for three Government and Defense witnesses, as well as the
18 Pros. Ex. 1 at 15-17.
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challenges in gathering the personnel required for court-martial into a con-
fined space.19 Accordingly, the military judge issued a written ruling continu-
ing Appellant’s trial to 18-20 June 2020.20
On 20 April 2020, the Secretary of Defense reissued and extended the stop-
movement order, which was then put into effect until 30 June 2020. Concur-
rently, MARADMIN 254/20 was released and directed stop-movement for do-
mestic and international travel until 30 June 2020, in order to limit the con-
tinuing spread of COVID-19. Trial counsel and Appellant’s military defense
counsel then filed a second joint motion requesting a continuance of trial to 3-
7 August 2020.21 In their motion, the parties again cited concerns about their
ability to facilitate Appellant’s court-martial in a manner compliant with the
regulations promulgated by the DoD. Specifically, the parties pointed to diffi-
culties effectuating witness travel to, and approval to come aboard, MCAGCC,
in addition to concerns over "maintaining eighteen individuals in a confined
space for an extended period of time.”22 The military judge granted the contin-
uance and reset the dates of trial to 3-7 August 2020.
On 16 July 2020, 18 days prior to the start of Appellant’s court-martial,
Appellant hired civilian counsel to represent him at his trial. On the same day,
CDC filed a notice of appearance with the court and a written motion for con-
tinuance of trial.23 In her motion, CDC requested that Appellant’s court-mar-
tial be continued to 26 October 2020, so that she may have time to prepare for
trial. In her continuance motion, CDC stated that she was unavailable the
week of 3-7 August 2020 due to other scheduled commitments and that she had
not yet been provided any discovery for the case. CDC argued that, “[t]o deny
the continuance would result in the accused being deprived his counsel of
choice.”24 The following day, CDC filed a declaration in support of the continu-
ance motion.25 In the declaration, CDC again emphasized that she had not yet
19 App. Ex. XXXV at 4-5.
20 Id. at 6.
21 App. Ex. LIX.
22 App. Ex. LIX at 4-5.
23 App. Ex. LXV.
24 App. Ex. LXV at 4.
25 App. Ex. LXVI.
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received any of the evidence in Appellant’s trial26 as well as provided the mili-
tary judge with an outline of her obligations including:
 27-31 July 2020, [the week prior to trial,] travel to Jacksonville, FL
 3-7 August 2020, [the week of trial,] travel to Jacksonville, FL
 5 August 2020, two clemency and parole appearances
 7-17 August 2020, a preplanned family vacation
 17-21 August 2020, a one day guilty plea in Fort Irwin, CA, an admin-
istrative separation board in San Diego, CA, motions due in a third
matter, and two appellate briefs due in a fourth case
 24-28 August 2020, an Article 39(a), UCMJ, motions hearing followed
by a trip to take her son to college until early September
 2 September 2020, a parole hearing
 8 September 2020, an administrative separation board
 14-18 September 2020, a contested general court-martial in another
case27
CDC argued that due to the foregoing schedule, she would be unable to prepare
for Appellant’s court-martial until late September. Appellant also filed a dec-
laration in support of the continuance motion, stating that he “retained the
services of civilian defense counsel . . . as soon as [his] family and [he] were
able to gather the financial funds” to retain her.28 Appellant stated that he was
aware that CDC was unavailable for trial from 3-7 August and was willing to
have his trial delayed so that CDC may represent him, along with all three of
his military defense counsel.
Victim’s Legal Counsel [VLC] for Ms. Foxtrot filed a response in opposition
to Appellant’s continuance request, arguing that Appellant had not met his
burden by a preponderance of the evidence to demonstrate that continuance
was warranted.29 VLC stated that a continuance of over two months, on top of
the prior three months of continuances due to COVID-19 restrictions, would
26 We note that the Government had previously provided discovery to Appellant’s
team of military defense counsel. At the time of filing, CDC had not yet received evi-
dence from either the Government or her defense counsel colleagues.
27 App. Ex. LXVI at 1-3.
28 App. Ex. LXIX at 1.
29 App. Ex. LXVII.
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prejudice her client by delaying the opportunity to move on with her life. VLC
further posited that CDC’s conflicts with Appellant’s trial dates were known at
the time he had retained her, and that Appellant should not be granted a con-
tinuance until October simply because he hired civilian counsel.
The Government also filed a response in opposition to Appellant’s continu-
ance request.30 The Government first echoed VLC, noting that both Appellant
and CDC were aware of the date of trial at the time they came to an agreement
on representation. The Government argued that there was no new evidence or
surprise that would necessitate additional time to prepare a defense. Again
citing to evolving guidance in response to COVID-19, the Government argued
that a continuance may negatively impact their ability to secure international
travel for witnesses. The Government additionally posited that an important
government witness would have reduced availability after 21 September 2022
due to operational requirements. Ultimately, the Government asked the court
to deny the continuance request in its entirety, and in the alternative, re-
quested the court to reschedule the trial to dates earlier than those requested
by the Defense, to include the weeks of 10 August, 17 August, 24 August, or 7
September.
After hearing argument on the continuance motion, the military judge
found that an insufficient opportunity to prepare for trial was a valid basis for
a continuance request under R.C.M. 906(b)(1) and that Appellant had sus-
tained his burden of proof by a preponderance of the evidence. After weighing
the factors set forth in United States v. Miller,31 the military judge granted a
35-day continuance and Appellant’s court-martial was rescheduled for 7-11
September 2020.
That same day, CDC filed a motion for reconsideration with the court. In
the motion, CDC reiterated the timeline of her representation and her sched-
uling conflicts, then raised a new argument: that the military judge erred in
only granting a partial continuance because prior criticism of military defense
counsel by the military judge required increased diligence on the part of CDC.
Specifically, CDC referred to two emails between the military judge and the
parties on 2 and 3 July 2020. In those emails, the military judge criticized fil-
ings by the military defense counsel and suggested that they acted “negli-
gently,” cautioned them that they were officers of the court and not to “com-
30 App. Ex. LXVII.
31 United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997).
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promise [their] license to practice law,” and suggested that counsel were “ei-
ther unaware of [R.C.M.] 707 or planting poison pills in the record.”32 Thus,
CDC argued the military judge’s chastisements of the military defense counsel
implicated Appellant’s right to competent counsel and required CDC to “review
all motions, responses, and court rulings to determine if they are factually and
legally sufficient, and to ensure all legal issues in this case have been ade-
quately raised by military counsel.”33
CDC further argued that this case was similar to United States v. Wiest,
where comments made by the military judge to military defense counsel in an
Article 39(a), UCMJ, session caused the appellant to fire his detailed counsel.34
There, the military judge granted a continuance to allow new military defense
counsel to prepare for the case, but during that time the appellant also hired
civilian defense counsel to represent him. The appellant’s new civilian defense
counsel was unavailable for trial during the scheduled dates. The Court of Ap-
peals for the Armed Forces [CAAF] found that the military judge abused his
discretion for failing to grant a second continuance to allow the appellant to
obtain a civilian lawyer.35
The Government did not file a response to CDC’s motion for reconsideration
and the military judge issued a written ruling without hearing further argu-
ment.36 In his ruling, the military judge reasoned that the Miller factors were
unchanged and that Wiest was clearly distinguishable from Appellant’s case
because, unlike in Wiest, the military judge’s comments to counsel were over
email and not made before the accused. The military judge also found no evi-
dence in the record to support an inference that there was a causal relationship
between the military judge’s castigations and Appellant’s decision to retain ci-
vilian counsel. He found that Appellant’s own declaration cut against this ar-
gument because Appellant stated that the timing of his decision to retain civil-
ian counsel was contingent upon gathering the funds necessary to do so and
that Appellant wished to be represented by CDC and his military defense coun-
sel. The military judge reasoned that the emails cited by CDC ignored the over
20 motions filed by military defense counsel in support of their client and em-
32 App. Ex. LXX at 12, 13.
33 App. Ex. LXX at 6.
34 59 M.J. 276 (C.A.A.F. 2004).
35 Id. at 276.
36 App. Ex. LXXI.
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phasized that Appellant’s military counsel had been “aggressively and affirm-
atively filing motions on behalf of their client’s defense.”37 Ultimately, the mil-
itary judge found the Appellant maintained confidence in his detailed military
defense counsel and that “the Defense has failed its burden by a preponderance
of the evidence to demonstrate that the Court should reconsider its . . . ruling
. . . wherein the Court granted a Defense continuance request, in part.”38
On 14 August 2020, CDC filed a second motion requesting a continuance of
Appellant’s trial to 19 October 2020.39 CDC noted that at the time of filing, she
had reviewed approximately 850 of the 1442 pages of discovery and 1 of 6 vid-
eos. CDC also pointed to several videos and electronic evidence contained in
the remaining pages, as well as over twenty motions, that she had not yet re-
viewed. Referencing her prior arguments, CDC also noted that her review had
led her to file “two motions for appropriate relief which were not filed by mili-
tary defense counsel” and noted that she had identified additional matters re-
quiring the filing of future motions.40 Further, CDC pointed to additional dis-
covery and production of witnesses being necessary. CDC argued that these
factors, coupled with her aforementioned obligations, necessitated a continu-
ance in order to effectuate competent representation. The Government filed a
response reiterating that a continuance until October would result in key wit-
nesses not being available for trial, would potentially cause further issues in
securing witness travel due to evolving COVID-19 guidance, and that Appel-
lant had not met his burden of proof by a preponderance of the evidence that a
further continuance was necessary.
The military judge41 denied the motion for a second continuance, and the
trial remained docketed for 7-11 September 2020. In his supplemental ruling,
the military judge highlighted that none of the motions mentioned by CDC
were ever filed with the court. Further, the military judge emphasized that at
no time had Appellant indicated that he no longer wished to be represented by
any of his military defense counsel. The military judge also noted that on 28
August 2020, the convening authority withdrew and dismissed 8 of the 13
charged specifications, simplifying the matters to be resolved at trial signifi-
cantly. Reviewing the Miller factors, the military judge determined that: (1)
37 Id. at 10
38 Id. at 11.
39 App. Ex. LXXII.
40 App. Ex. LXXII at 4.
41 Due to his impending retirement from active duty, Judge Muñoz was replaced
as the military judge in Appellant’s case by Judge Norman on 11 August 2020.
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there was no surprise that affected civilian counsel; (2) the nature of the evi-
dence involved in the case had not changed since arraignment; (3) Appellant’s
most recent continuance motion was not timely as nothing had substantively
changed since the court had ruled on Appellant’s prior continuance motions;
(4) making the Government rearrange travel once more while losing an expert
witness would be unreasonable; (5) the length of the requested continuance
was unreasonable given the substantial motions litigation that had already
been accomplished in the allotted time; (6) the Government would be preju-
diced by an additional continuance; (7) asking the court a third time to continue
the trial with no change in circumstances did not appear to be a good faith
request; (8) the Defense had not demonstrated reasonable diligence after a new
trial date was set in response to Appellant’s initial continuance request; (9)
there would be virtually no impact on the verdict if the continuance was denied;
and (10) Appellant and his counsel had prior notice of the trial dates at all
times.
After the military judge provided counsel with notice that he had denied
Appellant’s most recent continuance request, on 26 August 2020, CDC filed a
motion to be excused from further representation of Appellant.42 She stated in
the motion that Appellant wished to release her due to her inability to be pre-
pared for trial on 7 September 2020. Attached to the motion was the following
declaration by Appellant:
I hereby release you as my retained civilian counsel in my gen-
eral court-martial case scheduled for trial on 7 September 2020.
Based on the military judge’s denial of the continuance request
you filed on my behalf, and your inability to be present at trial
to provide effective representation of me, I do not desire to be
represented by you at this time. Due to your conflict in ade-
quately preparing for and representing me at trial, I release you
from further representation in my case.
If the military judge had granted the continuance until October
as you had requested on my behalf, I would not be in a position
to have to release you.43
42 App. Ex. LXXVII.
43 App. Ex. LXXVII at 5.
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On 28 August 2020, the military judge denied CDC’s motion to withdraw from
representing Appellant. The military judge supplemented his ruling at a hear-
ing on 7 September 2020. In his ruling, the military judge took issue with lan-
guage in Appellant’s letter purporting to release CDC, specifically that he was
“in a position to have to release” her.44 The military judge found that such lan-
guage indicated that Appellant’s release of CDC was neither voluntarily nor
freely given and stated that Appellant “can keep his CDC, whom the Court has
found has enough time and resources in this case to be adequately pre-
pared…[i]f the accused desires to freely and voluntarily released his
CDC…[that] would need to be discussed on the record with the military judge,
with all counsel present.”45
On 7 September 2020, during an Article 39(a), UCMJ, session, the mil-
itary judge emphasized that the language used by the accused in his initial
declaration on the matter indicated that his release of counsel was involuntary
and explained that Appellant could not be forced to release CDC.46 However,
shortly before the Article 39(a), UCMJ, session the Defense submitted a new
declaration from Appellant, dated 6 September 2020, releasing CDC from rep-
resentation.47 In this letter to CDC Appellant asserted:
I release you from my case as you have not adequately prepared
for trial and I do not wish to be represented by you at this time
since you are not ready to effectively represent me. My release
of you is voluntary. I am not being forced to release you as my
counsel.48
After ruling that Appellant’s initial attempt to release CDC was involun-
tary, and thus void, the military judge addressed the issue again in light of the
new release letter that had been submitted to the court. Specifically, he en-
gaged in a colloquy with Appellant, and began by thoroughly explaining the
issue to Appellant, who indicated that he completely understood the require-
ment that any release of counsel be voluntary. Appellant also expressed a com-
plete understanding of why the prior request to release CDC was denied.49 The
44 App. Ex. LXXIX at 1.
45 App. Ex. LXXIX at 2.
46 R. at 832.
47 App. Ex. CX.
48 Id.
49 R. at 902-908.
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military judge also explained to Appellant that, because he had already deter-
mined the prior request to release CDC was involuntary, Appellant would have
to explain what changed from the previous request and why his new declara-
tion releasing CDC was voluntary this time.50 During the following exchange,
the military judge also explained the consequences of a voluntary release of
CDC on any appeal:
MJ: Okay, now the third thing you need to be aware
of and be advised of is that if you make a purely
voluntary decision to release [CDC], that will
make the continuance issue moot on appeal, or
make it moot at this court at the trial level, and
it’ll make it moot on appeal, and that’s just a con-
sequence of your decision. That’s just one [thing]
that you need to know about. You need to be in-
formed of, be aware of, and make the decision
knowing that nonetheless, okay?
ACC: Yes, sir.
MJ: Because here’s the thing. If she’s taken off the
case by you, you’re the driving force behind that,
the voluntary decision is that you want her re-
leased, then her level of preparation is irrelevant
because you’ve decided that you don’t want her
on the case of the voluntary reason, okay? And if
her level of preparation is irrelevant because you
voluntarily decided to take her off the case, you
would be choosing to do that, nothing else will be
forcing that, and then that would be the end of it.
She just wouldn’t be counsel because of your
choice, and then any issue with respect to her be-
ing able to be prepared would be gone, Okay?
ACC: Yes, sir.
MJ: So this Court would find that the issue of the
continuance is moot at the trial level, and there’s
a high likelihood that that would get no appellate
review, should appellate review even be required
in your case, and you need to be aware of the con-
sequences if you make the decision.
50 R. at 908-09.
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Opinion of the Court
Do you understand that?
ACC: Yes, sir.
MJ: Do you have questions for me about any of those
issues. Especially that last one because it in-
volves a legal issue?
ACC: Not right now…No, sir.
MJ: Okay. Very well.
And just for the record, in my discussion so far
with the accused, he seems like a very intelligent
person. [He is] making great eye contact with
me, he’s nodding along as I’m speaking to
him…he seems very confident in this, and
doesn’t seem -- he seems to completely under-
stand what the Court is saying and doesn’t have
any questions.51
After a recess, the Article 39(a), UCMJ, session came back to order. Appel-
lant then indicated he conferred with his defense counsel during the recess on
the issue of recusal. Appellant also stated on the record that he wished to “vol-
untarily” release CDC because he felt that she was not “prepared enough” to
represent him.52
The military judge then orally provided Appellant a complete explanation
of his right to counsel.53 Appellant indicated that he understood his rights
and wished to be represented only by his military counsel and did not wish to
be represented by any other counsel. Appellant explained that he had enough
time with his military defense counsel to prepare for trial, that he was confi-
dent in the work of his military defense counsel, and that he did not feel that
CDC was prepared enough to represent him. The military judge then in-
quired into the voluntariness of Appellant’s release of counsel. Appellant
again clarified that CDC was not “going to be able to prepare for his trial as
[he] wanted her to” and that he did not feel like he had been involuntarily put
into that position.54 The military judge clarified that point as follows:
51 R. at 909-11.
52 R. at 912.
53 R. at 912-13.
54 R. at 916.
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Opinion of the Court
MJ: Do you feel like you’ve been forced into the posi-
tion?
ACC: No, sir.
MJ: Do you feel like you’re being compelled in any
way to make this decision?
ACC: No, sir.
MJ: Is this, in fact, a free and voluntary decision on
your part?
ACC: Yes, it is, sir.
MJ: Has anyone or anything forced or compelled you
in any way to release her?
ACC: No, sir.
MJ: Do you realize that you could keep her if you
wanted to?
ACC: I do realize that, sir.
MJ: Do you understand that the Court has found that
she could be of some benefit to you?
ACC: Yes, I do, sir.
MJ: We talked about this before, do you understand
that your voluntary release of her will likely
make your continuance motion unreviewable on
appeal, if there is one in this case?
ACC: Yes, I understand, sir.
MJ: Very clearly, do you want to proceed with just
your [three military defense counsel] represent-
ing you?
ACC: Yes, I do, sir.
MJ: Now, taking into account everything that we
talked about on this issue, do you still want to re-
lease [CDC]?
ACC: Yes, I do, sir.55
55 R. at 917-18.
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Opinion of the Court
Following the colloquy with the military judge, the military judge ruled
“that the accused, after being fully informed of and understanding his right to
counsel, has freely, expressly, and voluntarily requested the excusal of [CDC]
as his retained civilian defense counsel, and the Court will honor the accused’s
request; thus [CDC] is excused.”56
C. Members Selection
The Convening Authority for Appellant’s case was the Commanding Gen-
eral of the MCAGCC, located in Twentynine Palms, California. MCAGCC pri-
marily has one subordinate unit: Headquarters Battalion [HQBN]. Generally,
all of the Marines assigned as MCAGCC staff are members of HQBN even
though they might fall into different sections. The Convening Authority’s staff
judge advocate [SJA] delegated to his deputy [DSJA] the task of preparing a
member selection package for the Convening Authority’s consideration in Ap-
pellant’s court-martial.
With regard to the general process he used for preparing member selection
packages, the DSJA would solicit member’s questionnaires from the HQBN,
compile those questionnaires into a list, and the list and questionnaires would
be forwarded to the Convening Authority to assist with the selection of mem-
bers. In the instant case, the DSJA followed this same process. After obtaining
the current file of questionnaires from the HQBN, the DSJA reviewed the files
for obvious conflicts and removed from the list the investigating officer in Ap-
pellant’s case, the legal officer from HQBN, and several members of the Legal
Services Support Team at Twentynine Palms. The DSJA then asked the HQBN
adjutant to screen the remaining personnel on the list for unavailability due to
orders, leave, or liberty. The adjutant did so, and returned the list to the DSJA.
At this juncture, the DSJA realized that the list only contained staff non-
commissioned officers [SNCOs] (E-6 and above enlisted personnel) and officers,
so he placed a call to the adjutant. It was during this phone call that he first
learned of a HQBN policy whereby only SNCOs and officers were required to
complete a member’s questionnaire as part of their unit check-in procedures.
The collection of questionnaires in this manner was done as routine practice
and was not connected to any specific court-martial. The DSJA then asked the
56 R. at 918-19.
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Opinion of the Court
adjutant to provide questionnaires from “NCOs [Non-Commissioned Offic-
ers],57 specifically Corporals” or words to that effect.58 The DJSA knew that the
accused was a Corporal and wished to “give the Convening Authority a com-
plete range of potential members to consider in accordance with Article 25,
UCMJ.”59 The adjutant had two Corporals fill out the questionnaires and sent
them to the DSJA for inclusion in the package.
The final list of proposed potential members was composed of 48 nomina-
tions: two E-4s, nine E-6s, twelve E-7s, three E-8s, one E-9, one Warrant Of-
ficer [WO], three Chief Warrant Officer-2s [CWO-2s], one Chief Warrant Of-
ficer-3 [CWO-3], one O-1, five O-3s, seven O-4s, and three O-5s. This list of
names and accompanying questionnaires was provided to the Convening Au-
thority along with the SJA’s Article 25, UCMJ, advice memo and a memo pre-
pared for the Convening Authority with fifteen (15) blank spaces to be used by
him to select the members that he wanted to sit on Appellant’s court-martial.
The Convening Authority returned a handwritten list of names to the SJA who
placed those names on the final court-marital convening order, which ulti-
mately contained: three E-6s, four E-7s, one E-8, one E-9, one CWO-3, one O-
3, two O-4s, and two O-5s.
It was later discovered that the two Corporals who were provided to the
Convening Authority for consideration were junior by date of rank to Appel-
lant. The military judge found, and we agree, that there was no evidence that
Appellant’s date of rank vis-à-vis the two Corporals was ever discussed among
the SJA, DSJA, HQBN adjutant, or the Convening Authority, or that this dif-
ferential in the dates of rank played any role in the members selection process.
During pretrial litigation, Appellant challenged the member selection pro-
cess pursuant to Article 25, UCMJ,60 and requested that “a new panel be con-
stituted.”61 In his motion, Appellant argued that his court-martial was subject
to unlawful command influence because the member panel was improperly
stacked against him. Specifically, Appellant argued that the composition of the
panel was disproportionately senior in rank to him and that the Convening
Authority refused to consider E-4s, E-5s, O-1s, and O-2s as potential members
of the court-martial. The Government opposed Appellant’s motion, arguing
57 In the U.S. Marine Corps, Corporals (E-4s) and Sergeants (E-5s) are considered
NCOs.
58 R. at 953-54.
59 App. Ex. XCIX.
60 10 U.S.C. § 825.
61 App. Ex. XCVIII at 9.
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Opinion of the Court
that there was insufficient evidence to support the unlawful command influ-
ence allegation and that the Convening Authority followed a proper process for
member selection.
The military judge denied Appellant’s motion. Describing it as a “close call,”
the military judge found that the Defense had raised “some evidence” on the
issue of improper member selection, because the HQBN maintained a policy of
only having SNCOs and officers fill out questionnaires, the SJA’s office appar-
ently used those questionnaires as a means of putting together a pool of mem-
bers for the Convening Authority to select from, and no NCOs were ultimately
selected to sit on this panel.62 However, the military judge ultimately con-
cluded that Article 25, UCMJ, was not violated because there was no system-
atic inclusion or exclusion of potential members based on impermissible crite-
ria, there was nothing wrong with the final panel selected, there was no wrong-
ful intent present on the part of the HQBN, the staff judge advocates, or the
Convening Authority, and there was no evidence of bad faith or misconduct
related to selecting members for this case.
D. Military Judge’s and this Court’s In Camera Reviews of Ms. Fox-
trot’s Medical & Physical Evaluation Board Records
After enlisting in the Marine Corps, Ms. Foxtrot injured her ankle which
developed into a chronic injury for which she had surgery in 2018. She had
been prescribed various pain medications because the narcotic painkillers did
not work well for her. During a pretrial interview with the Government, she
asserted that she was not on pain medication at the time of the incident in-
volving Appellant.
During the pretrial phase of the court-martial the Defense requested,
among other things, Ms. Foxtrot’s medical and physical evaluation board
[PEB] records. When the Government refused to produce these records, the
Defense brought a motion to compel them. At oral argument, the Defense ar-
gued that it had reason to believe that Ms. Foxtrot was on prescription medi-
cations around the time of the charged sexual assault, and therefore it ought
to receive her medical records that showed what medications were actively pre-
scribed to her on the date of the incident. The military judge found it a “rele-
vant area of inquiry” if a “complaining witness . . . or any percipient witness,
was under the influence of any substance which had the potential to impair
their ability to observe the events that they say they observed, their ability to
62 App. Ex. CXXXV at 8.
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Opinion of the Court
accurately store those memories, their ability to recall those memories.”63 The
military judge concluded, “Those are all ripe areas for cross-examination. The
defense is certainly entitled to that information.”64 Consequentially, the mili-
tary judge ordered the Government to produce Ms. Foxtrot’s medical records
to the Defense.
With regard to Ms. Foxtrot’s PEB records, the Defense stressed to the mil-
itary judge that she went through the medical separation process before the
charged incident. Thus, they argued that there was potential information re-
lating to medications she was prescribed at the time of the alleged misconduct.
Ultimately, the military judge also ordered the Government to inform the court
and the Defense if such records existed. He further explained that if such rec-
ords did exist, he would consider conducting an in camera review of them to
determine what, if any, records should be disclosed to the parties.
Subsequently, the Defense moved the military judge to compel the produc-
tion of its expert consultant in the field of forensic psychiatry at trial as an
expert witness, U.S. Air Force Captain [Capt] (O-3) Dr. Juliet. [Discussed in
detail infra.] As part of that motion, the Defense explained to the military
judge that their expert consultant had advised the defense team on the impact
of alcohol on memory generally. Dr. Juliet had also informed TDC that he
needed to review Ms. Foxtrot’s medical records to determine how any medica-
tions she was taking at the time of the incident, may have affected her memory
or state of mind during the alleged offense, particularly considering the
amount of alcohol Ms. Foxtrot consumed that evening. However, in its response
to the Defense motion to compel the production of Dr. Juliet as an expert wit-
ness, the Government argued, that “while Ms. [Foxtrot] was prescribed medi-
cation, there is no evidence that she took the medication.”65 The Defense also
filed a motion to abate the proceedings due in part to the fact that the Govern-
ment had not yet turned over Ms. Foxtrot’s medical records to them.
During the Article 39(a) session at which the military judge heard argu-
ment on these motions, he modified his prior ruling that Ms. Foxtrot’s medical
records were to be turned over directly to the Defense. Specifically, he ordered
the Government turn over these records to the court for in camera review to
protect the privacy of Ms. Foxtrot. The military judge further stated that fol-
lowing the in camera review, he would disclose any relevant records to the De-
fense. Subsequently, when asked by the military judge, TDC indicated that
63 R. at 269.
64 Id.
65 App. Ex. LXI at 3.
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Opinion of the Court
there was no Defense objection to the military judge’s intention to conduct an
in camera review of the records.
After conducting the in camera review of 349 pages of Ms. Foxtrot’s medical
records and 28 pages of her PEB records, the military judge provided the par-
ties two redacted pages from her medical records. He also informed the parties
that “[t]he rest of the pages from the medical and the PEB records are not
responsive to the Defense motion and the non-responsive pages will be at-
tached to the record as [sealed] appellate exhibits.”66
The two pages from the records provided to the parties included infor-
mation that Ms. Foxtrot had an active prescription for Fluoxetine (Prozac) on
the date of the alleged offenses. The excerpt from the records disclosed to the
parties included information with regard to how often she was required to take
the Fluoxetine, the size of the prescribed dose, when the prescription was filled,
and the number of pills distributed. However, none of the records disclosed by
the military judge contained information pertaining to Ms. Foxtrot being on
pain medications.
On appeal, Appellant filed a motion with this Court to examine sealed ma-
terials in the record of trial, including Ms. Foxtrot’s medical and PEB records
that had been reviewed in camera and then sealed by the military judge. We
denied that motion for lack of good cause shown, but we authorized Appellant
to “refile to demonstrate good cause in accordance with R.C.M. 1113(b)(3).”67
Appellant filed a second motion to examine the sealed medical records and PEB
records. However, after conducting a review of these records, we came to es-
sentially the same conclusion as the military judge, that the only potentially
relevant information contained therein pertained to Ms. Foxtrot’s prescription
for Fluoxetine that was active at the time of the charged offenses. We also
noted that, although at various times Ms. Foxtrot had prescriptions for pain
medication, none of those prescriptions were active on the date of the charged
offenses involving her. Therefore, we denied Appellant’s renewed motion to ex-
amine the sealed materials at issue.
E. Military Judge Denies Defense Motion to Compel Funding for the
Production of the Defense Expert Witness in the Field of Forensic Psy-
chiatry
During pretrial litigation, Appellant filed a motion to compel expert assis-
tance in the field of forensic psychology. Specifically, he moved the military
66 App. Ex. LVIII at 1.
67 Order of 1 June 2021.
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Opinion of the Court
judge to compel funding to employ Dr. Sierra, a civilian forensic psychologist
in private practice, to consult on various matters including the effect of both
alcohol and prescription medication on Ms. Foxtrot’s ability to perceive and
recall the sexual interaction between them. The Defense submitted a written
declaration from Dr. Sierra, which provided in pertinent part:
From the science and literature in this area, we understand
that alcohol primarily interferes with the ability to form new
long-term memories and the ability to keep new information ac-
tive in memory for brief periods. As the amount of alcohol con-
sumed increases, so does the degree, and magnitude of the ob-
served and/or experienced memory impairments. Large amounts
of alcohol, particularly if consumed rapidly, can produce partial
(i.e. fragmentary) or complete (i.e. en bloc) blackouts, which are
periods of memory loss for events that transpired while a person
was consuming alcohol. The individual’s personal history of al-
cohol use, abuse or dependence and prior memory loss experi-
ence, plays a critical role.
Alcohol can have a dramatic impact on memory. Alcohol pri-
marily disrupts the ability to form new long-term memories; it
causes less disruption of recall of previously established long-
term memories or of the ability to keep new information active
in short-term memory for few seconds or more. At low doses
(which would not be relevant in this case), the impairment[s]
produced by alcohol are often subtle, though they are detectable
in controlled conditions. As the amount of alcohol consumed in-
creases, so does the magnitude of the memory impairments.
Large quantities of alcohol (which would be relevant in this
case), particularly if consume[d] rapidly, may produce a black-
out, an interval of time for which the intoxicated person cannot
recall key details of events, or even entire events. Finally, that
alcohol if combined with medication, particularly pain medica-
tion, could drastically affect an individual’s ability to recall de-
tails of events.68
68 App. Ex. XII at 42.
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Opinion of the Court
In her declaration, Dr. Sierra also opined that, in her experience with crim-
inal trials, to include general courts-martial, jurors do not “readily possess suf-
ficient understanding of the science behind human memory to accurately apply
their knowledge, in their deliberations.”69
The Government opposed the Defense motion to compel expert assistance,
arguing that Appellant had failed to meet his burden of proving that the re-
quested expert was necessary to present an adequate defense in this case. The
military judge agreed and denied Appellant’s motion to compel funding for Dr.
Sierra to serve as a Defense expert consultant.
The day after the military judge denied the motion, the Government, on its
own accord and without being ordered to do so by the military judge, provided
the Defense with Dr. Juliet, who was both a U.S. Air Force Captain and a fo-
rensic psychiatrist fellow assigned at the Walter Reed National Military Med-
ical Center in Maryland, as an expert consultant. After consulting with Dr.
Juliet, the Defense unsuccessfully requested the Convening Authority approve
funding for him to travel to Twentynine Palms, California, to consult with the
Defense during trial and to ripen into a defense expert witness at trial. Subse-
quently, the Defense filed a motion to compel funding for Dr. Juliet to travel to
testify as a Defense expert witness in the field of forensic psychiatry.70 The
Government opposed the Defense’s motion.
Dr. Juliet testified telephonically as a Defense witness on the motion. Spe-
cifically, he testified in relevant part as follows:
DC: So at issue in this case is the reliability of
the victim’s memory of the offense. Can
you explain to the Court how memory
works?
Dr. Juliet: So there’s a lot of controversy. A lay per-
son typically thinks that memory works a
bit like a camera, where you see some-
thing and it’s stored straight into long-
term memory, kept to remember forever,
but it’s more of a reconstruction memory,
subject to many errors and it’s very com-
plicated.
69 Id. at 43.
70Although the Defense motion identified Dr. Juliet as an expert in the field of
forensic psychology, the military judge corrected the Defense team on the record, point-
ing out that Dr. Juliet was actually a psychiatrist. R. at 637.
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Opinion of the Court
…
DC: And how does alcohol affect memory?
Dr. Juliet: Alcohol seems mostly to influence the
stage of memory formation where – like,
going from short-term memory into long-
term memory.
DC: And how does the amount of alcohol con-
sumed affect memory impairments?
Dr. Juliet: So the amount of alcohol consumed in-
creases the magnitude of the memory im-
pairments. Large quantities of alcohol,
particularly consumed very rapidly, can
cause the victim to experience either frag-
mentary or en bloc blackout.
DC: And how reliable is the memory of some-
one who’s been drinking?
Dr. Juliet: Well, the more a person drinks, the less
reliable the memory is.
DC: Can you explain to the Court what a
blackout is?
Dr. Juliet: Blackouts can be, kind of, broken up into
two different types. You got fragmentary
blackouts, which is when people can only
remember portions of an event, kind of
like the memory goes in and out during an
episode. And then an en bloc blackout is
where there’s like a discrete point in time
where a person just does not remember
anything from that point forward.
And blackouts, in particular, are distinct
from passing out in that an outside ob-
server viewing someone who is blackout
drunk would not be able to tell if that per-
son is blackout drunk. They’d just see
someone who’s a little bit intoxicated. But
from the perspective of the person who
has been drinking, they don’t remember
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Opinion of the Court
anything, but they continue to act similar
to how they were before.
DC: So you’re saying it’s not easy for an out-
side observer to tell when someone’s
blacked out?
Dr. Juliet: Not at all. So most lay people can tell if
someone has been drinking, but people
are very unreliable at telling if someone –
like, the degree of intoxication.
DC: Can you explain to the Court what a
brownout is?
Dr. Juliet: So the brownout is another term for a
fragmentary blackout. So it’s more transi-
ent, forgetful, memory loss. So you’ll lose,
like certain parts of your night, but not
the whole night in question. And, occa-
sionally, you can recall parts of memory
from a brownout.
…
DC: So you’ve read the evidence in [Ms. Fox-
trot’s] statements. Is it possible, based on
what you have read, that she blacked out
on the evening in question?
Dr. Juliet: It’s possible that she had a fragmentary
blackout.71
On cross-examination, the Government elicited from Dr. Juliet that it was
not known how much alcohol Ms. Foxtrot consumed on the evening in question
or the specific timeline with regard to when she consumed the alcohol. The
Government also elicited from Dr. Juliet that the likelihood of a person being
in a blackout decreases when the level of alcohol in the person’s system de-
creases, and that in this case, a significant amount of time elapsed between
when Ms. Foxtrot stopped drinking and when she was able to gain access to
her hotel room. Dr. Juliet also agreed that, even if at some point in the evening
Ms. Juliet suffered a fragmentary blackout, it would be less likely that she was
71 R. at 424, 426-27,432.
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Opinion of the Court
still in that state by the time she went to sleep, due to the period of time that
passed while she was trying to get into her room.
During argument on the motion, the Defense emphasized:
…[Ms. Foxtrot’s] ability to perceive events while intoxicated, es-
pecially if medicine is in the mix, but even if is not, is a critical
issue in this case. And as you heard from Dr. [Juliet] … there is
much about memory and alcohol’s effect on memory that exceeds
what is common knowledge to the average person.72
The Defense also argued:
And we need to be able to present our case that, you know, sci-
ence indicated that … there is a high likelihood that she’s expe-
riencing fragmentary blackout or that her memory is, in fact,
fallible. So, again, that’s the heart of the [Article] 120 charges.
And again, we have no other way to present this evidence.73
In response to the Government’s argument against compelling funding for Dr.
Juliet to serve as a Defense expert witness at trial, the Defense offered the
following rebuttal in pertinent part,
I know that the government just pointed out that … we, as
Marines, … are exposed to alcohol, but I think it’s unfair to make
that broad statement. I mean … there are people who don’t drink
in the Marine Corps; there are – and, as you have heard from
Dr. [Juliet], we, in general, have difficulty telling, you know, a
person’s level of intoxication. He stated, it is easy for us to know
when someone is intoxicated, but not easy for us to know their
level of intoxication. And these things are things that – is a com-
mon misconception to us. We might think that we know someone
is blacked out, but they are – that they’re not blacked out, but
they are, and that is not a common fact.
And, again, people on the panel will have varied experiences
with alcohol, and some might not even drink alcohol at all. So I
think it’s – he could fill in those gaps and explain to all members
to make sure that they’re on the same page and that they aren’t
… going off these preconceived notions that are wrong.74
72 Id. at 448 (emphasis added).
73 Id. at 449-50.
74 Id. at 454-55.
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After receiving evidence and argument on the motion, the military judge in
an oral ruling on the record, denied the Defense motion to compel funding to
facilitate Dr. Juliet’s testimony as an expert witness. As part of his analysis,
the military judge reasoned that Dr. Juliet’s testimony would have “low proba-
tive value because [Ms. Foxtrot] has already admitted that she does not re-
member the incident.”75 The military judge elaborated on this conclusion of law
stating:
Whether [Ms. Foxtrot] was able to remember the accused
touching her breasts and vagina is very clearly not in issue be-
cause [Ms. Foxtrot] already told NCIS that she does not remem-
ber. She also told NCIS in her 22 March 2019 interview that on
18 March 2019, when the accused sent her more sexual mes-
sages via the Snapchat app, that she replied to him by saying “I
don’t know what you want me to say. I don’t remember it hap-
pening, so I don’t understand why it did happen.” [Ms. Foxtrot]
has admitted that she does not remember.76
The military judge also discounted the Defense’s argument that Dr. Juliet’s
testimony was necessary to educate the members about how memory formation
works and what intervening factors may interfere with memory formation as
these concepts pertained to Appellant’s sexual interaction with Ms. Foxtrot.
Quoting from his ruling denying the Defense’s earlier motion to compel funding
to appoint Dr. Sierra as an expert consultant in the field of forensic psychology,
the military judge made the following findings of fact and followed up with
conclusions of law:
“It is very well known by adults in the United States that
alcohol impairs one’s memory. Even if someone has never con-
sumed alcohol, the phenomenon of memory loss after excessive
alcohol consumption is well represented in movies, television
and social media. Such a phenomenon will not come as a shock
to any of the members in this case. All of that will certainly be
within the ken of the members to consider and evaluate as they
decide the case.” The Court adopts that same finding when rul-
ing on the present defense motion.
Additionally, whether [Ms. Foxtrot] remembers or not, as
previously noted, is not in issue, and thus it is not relevant tes-
timony. The issue of whether [Ms. Foxtrot] remembers is well-
75 Id. at 644.
76 Id. at 645.
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Opinion of the Court
settled in this case. She does not remember, and we know that
because she told NCIS that in her 22 March 2019 interview.
Thus Dr. [Juliet’s] testimony will not help the trier of fact to de-
termine a fact in issue because the fact is settled and is not in
issue. [Ms. Foxtrot] does not remember, and if she suddenly does
remember while testifying, then the defense is well-equipped to
point that out during cross-examination, which does not require
expert testimony.
Because [Ms. Foxtrot’s] recall of the alleged crimes is not in
issue, the probative value of Dr. [Juliet’s] testimony is very low
and is substantially outweighed by dangers of undue delay,
wasting time, and needlessly presenting cumulative evidence.77
At trial, the Government’s theme and theory of the case echoed Ms. Fox-
trot’s testimony on the merits, that she did not remember Appellant engaging
in sexual activity with her because she had been asleep when it happened.
Conversely, the Defense’s theme and theory was that Ms. Foxtrot had been
awake and consenting during the sexual activity. The Defense further posited
that she only said that she had been asleep during the encounter when she
returned to “IPAC High,” which the Defense described as “something like a
high school, where drama, rumors, gossip, and jealousy rule the day, where
everybody knows everyone’s business, and where nothing is sacred.”78
F. Government Evidence Introduced at Trial to Prove Appellant Made
a False Official Statement
At trial, the Government presented evidence to prove that Appellant made
a false official statement. The specification alleged Appellant made multiple
false statements that he was not required to check in for restriction to his unit’s
officer of the day [OOD] during a period of over a month and a half. Specifically,
the Government successfully introduced excerpts from the duty logbook during
the relevant period that documented that certain individuals in positions of
authority within the unit had purportedly called the OOD to excuse Appellant
from his restriction musters. The Government also presented testimony of the
chief warrant officer who was the officer in charge [OIC] of Appellant’s section
at the IPAC, as well as the gunnery sergeant who was Appellant’s staff non-
commissioned officer in charge [SNCOIC] during the relevant period. Each of
these members of Appellant’s chain of command were asked to review entries
in the duty logbook, which reflected on various occasions each had called the
77 Id. at 645-46.
78 R. at 1452.
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Opinion of the Court
OOD to excuse Appellant from restriction muster for such things as volunteer
work or church. Each denied that he had ever informed the OOD that Appel-
lant was excused from restriction muster for such events. Moreover, each de-
nied that he even had the authority to excuse Appellant from such musters.
G. Trial Defense Counsel Declarations in Response to Ineffective As-
sistance of Counsel Allegation
On appeal, Appellant asserts that he invoked his right to remain silent on
three separate points (indicated in italics below) during the course of the NCIS
interrogation:
4:41:35 PM79 Appellant: I’m not going to say nothing no
more.
SA Mike: Ok, let me ask you this…
Appellant: I know what like--what you’re try-
ing to do.
SA Mike: I’m not trying to do anything.
…
4:46:50 PM SA Mike: Listen, Malik. Let me ask you some-
thing, I got a question for you. Did
you touch [Ms. Foxtrot]----
Appellant: Without her consent? No.
SA Mike: Ok. Would you be willing to take a
polygraph?
Appellant: Yes
SA Mike: You’ll take a polygraph?
Appellant: Yes.
4:47:02 PM SA Mike: Okay. We’ll take a break. Okay?
And we’re gonna come right back.
Okay? Give us a minute. Let’s take
a break. Alright?
Appellant: Can I call my mom?
79 All times reflect that which is reflected onscreen in the video recording of the
interrogation.
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SA Mike: Well, right now you’re appre-
hended, okay? So once we let you go
and you go back to your unit you
can call whoever you want to, okay,
but we’re not going to bring a phone
in here for you to call anybody.
Appellant: I mean, but so I’m not going to take
the polygram [sic].
SA Mike: Okay.
Appellant: Like nothing else further. If I can’t
call my mom because you all are not
allowing me to because you want to
keep me apprehended then that’s
fine--that’s fine with me, but I’m not
going to do anything else further.
4:47:35 PM SA Mike: Okay. Alright. Sounds good. Let me
ask you one more question. You
said you text[ed] [Ms.Foxtrot] on
your phone. Can we take a look at
your phone?
Appellant: No.
SA Mike: Okay. Alright. No worries. Sit tight
here real quick. Alright? We’ll come
right back. Alright? You want to
talk more about this? Or do you just
want to stop talking? Which one is
it?80
SA Mike continued asking Appellant more questions. Appellant eventually
signed a Permissive Authorization for Search and Seizure for his phone. The
NCIS agents then continued to interrogate Appellant, and confronted him with
80 Unredacted Interrogation of Appellant of 25 March 2019 [“Unredacted Interro-
gation], Art, 32 Government Exhibit 1.g.
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his text messages with Ms. Foxtrot that were part of the NCIS controlled con-
versation. The agents stopped asking Appellant questions when he stated, “I’m
done talking.”81
Although they requested certain redactions of the interrogation, TDC did
not move to suppress Appellant’s statements to NCIS. After both reviewing
Appellant’s allegation of ineffective assistance of counsel [IAC], examining the
record, we found that the standards established by United States v. Melson82
for the Court-ordered production of affidavits or declarations had been met.
Accordingly, we ordered Appellant’s three detailed TDC, Captain [Capt] (O-3)
Lima, Capt Papa, and First Lieutenant [1stLt] (O-2) Joseph to submit declara-
tions that addressed Appellant’s allegation. Upon reviewing these declara-
tions, we found each to be credible.
Each of the three TDC declarations confirmed that they reviewed and con-
sidered the potential constitutional and Military Rules of Evidence [Mil. R.
Evid.] issues with regard to Appellant’s purported invocation of his right to
silence. Lead TDC, Capt Lima, said that he was primarily responsible for re-
viewing Appellant’s statement to NCIS, that he did consider the issue of bring-
ing a motion to suppress Appellant’s statement, and in doing so consulted with
the Defense’s Highly Qualified Expert/attorney advisor and the Senior Defense
Counsel. Capt Papa and 1stLt Joseph corroborate these assertions.
Next, the TDC declarations assert that the Defense team had a tactical
rationale to forgo a motion to suppress Appellant’s statements to NCIS. Capt
Lima explained that Appellant’s statements before and after the purported in-
vocations of his right to silence supported the Defense’s theory that his sexual
activity with Ms. Foxtrot had been consensual. Capt Lima also articulated that
the Defense team wanted the members to see that although Appellant was held
by NCIS for over five hours, and subjected to intense questioning during part
of that time, he maintained throughout that the sexual activity was consen-
sual. Beyond tactical considerations, Capt Lima asserted that the Defense
team did not have a good faith basis to move to suppress the majority of Ap-
pellant’s statements to NCIS, because they were made prior to the purported
invocation.
Moreover, Capt Lima asserted that the introduction of Appellant’s state-
ments to NCIS allowed the Defense to put forth before the members Appel-
lant’s side of the story, that his sexual encounter with Ms. Foxtrot was consen-
sual, without him being subject to cross examination. As a result, the Defense
81 Unredacted Interrogation at 6:17:49 PM.
82 66 M.J. 346, 350–51 (C.A.A.F. 2008).
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Opinion of the Court
team advised Appellant not to testify, and he took that advice. Capt Papa’s and
1stLt Joseph’s declarations directly corroborated all of Capt Lima’s assertions
on these issues.
II. DISCUSSION
A. Continuance Requests and Appellant’s Release of Civilian Defense
Counsel
1. Standard of review and the law
“A military’s judge’s decision to grant or deny a continuance must be tested
for an abuse of discretion even where failure to grant a continuance would deny
an accused the right to a civilian counsel.”83 Military judges abuse their discre-
tion when their reasons for denial are “clearly untenable” and “deprive a party
of a substantial right such as to amount to a denial of justice.”84 The Sixth
Amendment guarantees that in “all criminal prosecutions, the accused shall
enjoy the right … to have the Assistance of Counsel for his defence.”85 The core
of this right is the “opportunity for a defendant to consult with an attorney and
to have [her] investigate the case and prepare a defense for trial.”86 The Sixth
Amendment also guarantees “the right to choice of counsel for those who hire
their own counsel.”87 “It commands, not that a trial be fair, but that a partic-
ular guarantee of fairness be provided – to wit, that the accused be defended
by the counsel he believes to be best.”88 Even if an accused receives adequate
representation by counsel, if he or she is erroneously prevented from being rep-
resented by the attorney he or she wants, then the right has been violated.89
Such a violation of the right to counsel is not subject to a harmless error anal-
ysis.90
83 Miller, 47 M.J. at 358.
84 Id.85 U.S. Const. amend. VI.
86 Kansas v. Ventris, 556 U.S. 586, 590 (2009) (citation and internal quotation omit-
ted).
87 United States v. Watkins, 80 M.J. 253, 258 (C.A.A.F. 2020) (quoting United States
v. Gonzalez-Lopez, 548 U.S. 140 (2006)).
88 Id. (quoting Gonzalez-Lopez, 548 U.S. at 146).
89 Id. (citing Gonzalez-Lopez, 548 U.S. at 148).
90 Id. (citing Gonzalez-Lopez, 548 U.S. at 150).
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Article 40, UCMJ, authorizes a military judge to grant a continuance “for
as long and as often as is just.”91 A continuance may be granted to allow counsel
the opportunity to prepare for trial.92 While the right to civilian counsel is not
absolute, “an unreasoning and arbitrary instance upon expeditiousness in the
face of a justifiable request for delay violates the right to the assistance of coun-
sel.”93 In those instances where a continuance request implicates the accused’s
Sixth Amendment right to counsel, the “controlling factor is whether the [ac-
cused] was accorded the opportunity to secure counsel of his choice.”94
To determine whether a military judge abused his or her discretion in deny-
ing a continuance request, we consider the following factors promulgated by
CAAF in United States v. Miller:
surprise, nature of any evidence involved, timeliness of the re-
quest, substitute testimony or evidence, availability of witness
or evidence requested, length of continuance, prejudice to oppo-
nent, moving party received prior continuances, good faith of
moving party, use of reasonable diligence by moving party, pos-
sible impact on verdict, and prior notice.95
Appellate courts need not decide if a military judge abuses his or her dis-
cretion denying a continuance where an appellant fails to establish prejudice.96
Waiver is the intentional relinquishment or abandonment of a known
right.97 Generally, waiver of fundamental rights must be “knowing, intelligent,
and voluntary.”98 “An understanding of the alternatives is a necessary compo-
nent of an informed waiver.”99
91United States v. Parker, 75 M.J. 603, 613 (N-M Ct. Crim. App. 2016) (quoting
R.C.M. 906(b)(1) Discussion).
92 R.C.M. 906(b)(1) Discussion.
93 Miller, 47 M.J. at 358.
94 Id. (internal citation omitted).
95 Id. (internal citation omitted).
96 United States v. Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003).
97 United States. v. Edwards, ___ M.J. ___, No. 21-0245, 2022 CAAF LEXIS 283 at
*13 (C.A.A.F. April 14, 2022).
98 United States v. Cooper, 78 M.J. 283, 288 (C.A.A.F. 2019).
99 United States v. Andrews, 21 U.S.C.M.A. 165, 168 (C.M.A. 1972).
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2. Appellant’s voluntary release of CDC waived his claim of error
In light of this precedent and after considering the facts of the present case,
we hold that Appellant affirmatively waived any claim arising from the mili-
tary judge’s denial of the continuance motions. In our review of the record, we
find that Appellant, after receiving a thorough explanation about both his
rights and the effect of his decision on any appeal of his case should he be con-
victed, knowingly and voluntarily waived the counsel of choice issue and thus
also waived the related issues arising from the continuance requests. Appel-
lant urges this Court to examine the underlying denials of the continuance
requests, but that is unnecessary. Because the only prejudice he asserts is the
purported denial of his counsel of choice, we merely need to scrutinize that
issue to decide whether the military judges abused their discretion in denying
Appellant’s various continuance motions.100
Doing so, we determine that by voluntarily releasing his CDC, Appellant
waived any argument that he was denied his counsel of choice. This, in turn,
rendered moot the denials of his continuance requests. After Appellant made
an initial conditional release of his CDC, which the military judge found to be
involuntary, Appellant submitted a second request to release his CDC. The
military judge then undertook a detailed colloquy with Appellant. The military
judge explained, thoroughly and clearly, to Appellant the reason that his in-
voluntary release of CDC was denied, that he was not required in any way to
release his CDC, and that he found Appellant’s CDC could still be useful to
him despite being less prepared than Appellant would have preferred. The Ap-
pellant then stated, despite understanding the alternatives available to him,
that he still desired to release his CDC from representing him. In particular,
the military judge provided a clear explanation of the consequences of his vol-
untary release of his CDC:
If she’s taken off the case by you, you’re the driving force behind
that, the voluntary decision is that you want her released, then
her level of preparation is irrelevant because you’ve decided that
you don’t want her on the case for a voluntary reason, okay? And
if her level of preparation is irrelevant because you voluntarily
decided to take her off the case, you would be choosing to do that,
nothing else will be forcing that, and then that would be the end
of it. She just wouldn’t be counsel because of your choice, and
100 See Wellington, 58 M.J. at 425 (where CAAF declined to decide the issue of
whether the military judge abused his discretion because Appellant had not estab-
lished prejudice).
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Opinion of the Court
then any issue with respect to her being able to be prepared
would be gone, okay?101
Appellant stated that he understood what the military judge had explained to
him and that he understood that “voluntary release of [his CDC] will likely
make [his] continuance motion unreviewable on appeal.”102 We find Appellant’s
release of his CDC to be clear waiver of his right to counsel issue, which conse-
quentially defeats his argument that he suffered prejudice due to the denial of
his continuance requests.103
B. Members Selection Process
1. Standard of review and the law
We review claims of error in the selection of court-martial members de
novo.104 In doing so, we are bound by the military judge’s findings of fact unless
they are clearly erroneous.105 “As a matter of due process, an accused has a
constitutional right, as well as a regulatory right, to a fair and impartial
panel.”106 These rights are effectuated pre-trial though the strictures of Article
25, UCMJ, and at trial though use of peremptory and causal challenges.107 Ar-
ticle 25, UCMJ, generally provides that any active duty officer, as well as any
active duty enlisted servicemember, is eligible to serve on a court-martial for
the trial of an enlisted servicemember.108 Article 25(e) narrows that provision
101 R. at 910.
102 R. at 918.
103 While our decision in this case is based on waiver, we note that Appellant ad-
mitted to the military judge on the record that at the time he retained his CDC, a mere
18 days before trial, he knew that there was no guarantee that she would have enough
time to adequately prepare for trial. R. at 920. Appellant hired his CDC assuming that
there would be a continuance – which was granted, although not for the length of time
that he and CDC had wished. In addition, Appellant availed himself of the benefit of
three military defense counsel, who zealously represented his interests through mul-
tiple rounds of motions litigation. At no time did he attempt to dismiss his military
defense counsel, nor express that he did not wish to be represented by them.
104 United States v. Bartlett, 66 M.J. 426, 427. (C.A.A.F. 2008).
105 United States v. Benedict, 55 M.J. 451, 454 (C.A.A.F. 2001).
106United States v. Downing, 56 M.J. 419, 421 (C.A.A.F. 2002) (internal quotation
omitted).
107 United States v. Gooch, 69 M.J. 353, 357 (C.A.A.F. 2011).
108 Article 25(a)-(c), UCMJ.
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and states that members junior in rank or grade to the accused are ineligible
to serve when it can be avoided.109
A convening authority typically has broad discretion when selecting panel
members, so long as the selection criteria are based on the factors outlined in
Article 25.110 Although it is required for convening authorities to personally
select the members of courts-martial, they may rely on the assistance of staff
and subordinates to compile a list of eligible members.111
There is an absolute prohibition on assigning, or excluding, members from
a court-martial in order to achieve a particular result as to findings or sen-
tence.112 Such panel-stacking constitutes unlawful command influence and
“has the improper motive of seeking to affect the findings or sentence by in-
cluding or excluding classes of individuals on bases other than those prescribed
by statute.”113 However, not all instances of improper member selection consti-
tute panel-stacking.114 “Once the issue of improper member selection has been
raised … the burden shifts to the government to demonstrate beyond a reason-
able doubt that improper selection methods were not used, or, that the motive
behind the use of the selection criteria was benign.”115 The government may do
so by demonstrating simple administrative error or by showing that any inclu-
sion or exclusion was the result of the convening authority’s attempt to comply
with Article 25, UCMJ.116
CAAF has developed a non-exhaustive list of factors to use as a starting
point in evaluating the propriety of any member selection process:
First, we will not tolerate an improper motive to pack the
member pool. Second, systemic exclusion of otherwise qualified
potential members based on an impermissible variable such as
rank is improper. Third, this Court will be deferential to good
faith attempts to be inclusive and to require representativeness
109 Article 25(e)(1), UCMJ.
110 United States v. Riesbeck, 77 M.J. 154, 163 (C.A.A.F. 2018).
111 United States v. Dowty, 60 M.J. 163, 169-70 (C.A.A.F. 2004).
112 Riesbeck, 77 M.J. at 165.
113 Id.
114 Id.
115 Id.
116 Id.
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so that court-martial service is open to all segments of the mili-
tary community.117
2. The member selection process was benign and did not violate Appellant’s
Constitutional right to a fair and impartial panel
At the outset, we find no evidence in the record to support a determination
that an improper motive existed on the part of the Government to pack the
member pool. The DSJA, in his review of the member questionnaires collected
by the HQBN, identified there were no E-4s or E-5s on the list of potential
members. Seeking to comply with the requirements of Article 25, he requested
that the HQBN solicit member questionnaires from noncommissioned officers,
specifically corporals, so that they could be included in the list forwarded to
the Convening Authority for consideration.118 When the list of potential mem-
bers was forwarded to the Convening Authority, it was accompanied by an Ar-
ticle 25 advice memorandum from the SJA. The memorandum stated, in part:
2. While a Convening Authority retains wide latitude under Ar-
ticle 25, a convening authority may not systematically exclude
personnel from panel selection based on rank.
…
4. While not specifically required under Article 25, every effort
should be made to give the Accused an opportunity to sit before
a panel of his peers, including peers of the same rank, where
appropriate. Failure to provide such an opportunity to Corporal
117 Dowty, 60 M.J. at 171 (internal citations omitted).
118 We concur with the observation of the military judge that there was no reason
for the SJA’s office to structure their member-selection process around previously-col-
lected members’ questionnaires. There is nothing impermissible about the HQBN col-
lecting such questionnaires from E-7 and above new check-ins to the unit. However,
had it not been for the diligence exercised by the DSJA, the SJA’s office may have
blindly relied upon those questionnaires as it compiled a list of potential members for
consideration. Consequentially, the Convening Authority may have found himself per-
ilously close to systematically excluding members from consideration based on rank.
See United States v. Bartee, 76 M.J. 141, 144 (C.A.A.F. 2017) (finding no improper se-
lection, despite the categorical exclusion of members by rank on potential member list,
where the convening authority was provided an alpha roster of the command and ad-
vised that he could choose court-martial members from among the full roster if he
wished to do so).
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Bunton will likely lead to significant appellate issues, should a
conviction result.119
We are satisfied beyond a reasonable doubt that the motives behind the
member selection criteria used in this case were benign and indicative of an
effort to be inclusive and to require representativeness. We also are satisfied
that the Convening Authority was properly advised of his obligations under
Article 25, UCMJ. We further find beyond a reasonable doubt that there was
no systematic exclusion of members based on impermissible criteria. Thus, we
find Appellant’s due process right to a fair and impartial panel was not vio-
lated.
3. Despite administrative error in the member selection process, Appellant
was not prejudiced
However, despite the SJA office’s good faith attempt to ensure inclusivity
of NCOs in the list of potential members provided to the Convening Authority
for his consideration, we do find that there was administrative error in the
members selection process.
Appellant argues that, had the two Corporals in the instant case made it
onto the panel, they would have been subject to challenge for cause by the Gov-
ernment because they were junior by date of rank to him. While this hypothet-
ical scenario never came to pass, Appellant’s supposition does underscore an
error made during the member selection process. There is no evidence in the
record to conclude that Appellant’s date of rank relative to the two Corporals’
dates of rank was ever discussed by those involved in the members selection
process, or to conclude that calculations about those differentials in dates of
rank played any role in the member selection process for Appellant’s court-
martial. However, “[s]creening potential members of junior rank or grade is
not only proper; it is required by Article 25(d)(1), UCMJ.”120 Congress, in pre-
scribing Article 25, UCMJ, was specific in setting out “detailed requirements,
disqualifications, and prohibitions” for courts-martial.121 In order to ensure an
accused is not tried by members junior to him or her, it is indeed necessary for
there to be, and incumbent upon the government to conduct, a review of the
date-of-rank of potential members that share the same rank or grade as the
119 App. Ex. CI at 3 (citations omitted).
120 Gooch, 69 M.J. at 358 (emphasis added). Article 25(d)(1), UCMJ, was subse-
quently restyled as Article 25(e)(1), UCMJ.
121 Bartlett, 66 M.J. at 429.
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Opinion of the Court
accused.122 It is inescapable, then, that the SJA office’s failure to do so in this
case constituted error.
Where, as here, we find nonconstitutional error in the application of Article
25, UCMJ, we must determine whether the error materially prejudiced the
substantial rights of the accused.123 For use in such analysis, CAAF has iden-
tified three categories of nonconstitutional error and their corresponding bur-
dens:
First, in the case of administrative mistake, the appellant must
demonstrate prejudice. Second, where the government has in-
tentionally included or excluded a class of eligible members, the
government must demonstrate lack of harm. Third, in the case
of unlawful command influence, the government must prove be-
yond a reasonable doubt that the error was harmless.124
We recognize that the line between each category can, in some cases, be
blurry, but here it is clear.125 As Appellant points out, the failure of the SJA’s
office to account for the relevant dates of rank may have subjected the two
Corporals, whose names had been submitted to the Convening Authority as
potential members, to challenge for cause and create a kind of de facto exclu-
sion of NCOs from his members panel. However, there is no evidence that the
Convening Authority, the SJA and his office, or the HQBN intended to do so.
Rather, the record demonstrates that the DSJA made a specific effort to pro-
vide a more inclusive list of potential members to the Convening Authority,
and that the SJA advised the Convening Authority of the mandates of Article
25, UCMJ, to include specific, written advice that a convening authority may
not systematically exclude personnel from panel selection based on rank. The
failure to screen the dates of rank of the two Corporals whose names were for-
warded to the Convening Authority as potential members was a ministerial
mistake indicative of administrative error.126 Thus, the burden rests with Ap-
pellant to demonstrate prejudice.
122 Gooch, 69 M.J. at 358.
123 Id. at 360.
124 Id. at 361. (internal citations omitted).
125 Id.
126 See id. (holding that exclusion of a class of members based on dates of service
at Sheppard Air Force Base was “more than a ministerial mistake, such as the omis-
sion of an Article 25, UCMJ, factor, or an intended name in a memorandum.”).
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Opinion of the Court
We conclude that the Appellant has failed to meet this burden. The error
in this case did not prejudice Appellant for two reasons. First, the two potential
members junior in rank to Appellant were not ultimately selected by the Con-
vening Authority. The SJA properly advised the Convening Authority against
systematic exclusion based on rank and emphasized the importance of giving
Appellant the opportunity to sit before a panel of his peers. Second, the panel
by which Appellant was ultimately tried complied with the criteria set out in
Article 25, UCMJ, and was fair and impartial. The military judge oversaw a
thorough group and individual voir dire process, in which he properly applied
the law, including consideration of actual and implied bias.127 Six of Appellant’s
eight challenges based on implied bias were granted.128 Thus, Appellant’s claim
lacks merit.
C. Excerpted Medical Records Provided to Defense Following In Cam-
era Review by Military Judge
1. Standard of review and the law
We review a military judge’s decision on a request for discovery for abuse
of discretion.129 Military judges abuse their discretion when their findings of
fact are clearly erroneous, when they are incorrect about the applicable law, or
when they improperly apply the law.130
Article 46, UCMJ, provides the trial counsel, defense counsel, and the
court-martial with the “equal opportunity to obtain witnesses and other evi-
dence in accordance with” the rules prescribed by the President.131 This statute
is implemented by Rule for Courts-Martial [R.C.M.] 701, which sets forth the
rights and obligations of the parties.132 Among the Government’s obligations is
to disclose documents within the possession, custody, or control of military au-
127 See id.
128 Furthermore, one of the two members whom Appellant unsuccessfully chal-
lenged for cause was later excused based on his peremptory challenge.
129 United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015); United States v.
Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004).
130 Roberts, 59 M.J. at 326.
131 Art. 46, UCMJ, 10 U.S.C. § 846.
132 Roberts, 59 M.J. at 326.
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Opinion of the Court
thorities upon request of the defense when the item is “relevant to the prepa-
ration of the defense.”133 Similarly, the Government is required to permit the
defense to inspect the results or reports of physical or mental examination
within the possession, custody, or control of military authorities, upon request
when the item is “relevant to the preparation of the defense.”134 Subject to lim-
itations in the Military Rules of Evidence, R.C.M. 701 also permits the military
judge to review any materials in camera, if required by any rule or upon motion
by a party.
2. The military judge did not abuse his discretion with regard to the limited
information he disclosed to Appellant from Ms. Foxtrot’s medical and PEB rec-
ords
Appellant argues that the military judge erred following his in camera re-
view of Ms. Foxtrot’s medical and PEB records by not disclosing evidence of
prescription narcotics that could have impaired Ms. Foxtrot’s memory or im-
pacted her ability to perceive events at the time of the alleged misconduct. We
disagree. After conducting our own review of the records at issue we find that,
beyond the records disclosed to the parties by the military judge showing that
Ms. Foxtrot had an active prescription for Fluoxetine (Prozac) at the time of
the charged misconduct, none of the records he reviewed in camera were rele-
vant to the preparation of the defense. In reaching this determination we note
the records indicate that, although at various times Ms. Foxtrot had prescrip-
tions for pain medication, none of those prescriptions were active on the date
of the charged offenses involving her. Therefore, we conclude that the military
judge did not abuse his discretion in limiting the disclosure of Ms. Foxtrot’s
records.
D. Appellate Defense Counsel’s Access to Sealed Materials
1. Standard of review and the law
Upon motion by a party or on its own motion, this Court may reconsider an
interlocutory order previously rendered by it, provided that jurisdiction of the
133 R.C.M. 701(a)(2)(A).
134 R.C.M. 701(a)(2)(B).
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case has not been obtained by CAAF.135 Jurisdiction vests with CAAF when a
petition or certificate has been filed with that court.136
If a military judge reviews any materials in camera, the entirety of any
materials examined shall be attached to the record of trial as an appellate ex-
hibit.137 The military judge shall seal any materials examined in camera and
not disclosed and may seal other materials as appropriate.138 Such material
may only be examined by reviewing or appellate authorities in accordance with
R.C.M. 1113.139 In turn, that rule provides, “[m]aterials reviewed in camera by
a military judge, not released to trial counsel and defense counsel, and sealed
may be examined by reviewing authorities. After examination of said materi-
als, the reviewing or appellate authority may permit examination by appellate
counsel for good cause.”140
2. Appellant has failed to demonstrate good cause on appeal to review Ms.
Foxtrot’s sealed medical and PEB records in the record of trial
As discussed above, we have conducted a review of Ms. Foxtrot’s medical
and PEB records that are sealed and contained in the record of trial. Based on
that review, we have determined that the military judge was correct in limiting
the disclosure of those records only to information concerning Ms. Foxtrot’s
active prescription for Fluoxetine. That disclosure included how often she was
required to take the Fluoxetine, the size of the prescribed dose, when the pre-
scription was filled and the number of pills distributed. Moreover, the sealed
records indicate that, although at various times Ms. Foxtrot had prescriptions
for pain medication, none of those prescriptions were active on the date of the
charged offenses involving her. Therefore, we conclude that Appellant has not
shown good cause for his appellate counsel to examine the sealed materials at
issue.141
135 N-M. Ct. Crim. App. R. 31.1.
136 Art. 67, UCMJ; C.A.A.F. R. 5.
137 R.C.M. 701(g)(2).
138 Id.139 Id.140 R.C.M. 1113(b)(3)(B)(ii).
141 See id.43
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Opinion of the Court
E. Military Judge’s Denial of Defense Motion to Compel Production of
Defense Expert Consultant as an Expert Witness at Trial
1. Standard of review and the law
We review a military judge’s ruling on a request for expert assistance for
abuse of discretion.142 “An abuse of discretion occurs when the trial court’s find-
ings of fact are clearly erroneous or if the court’s decision is influenced by an
erroneous view of the law.”143 Factual findings are clearly erroneous when they
are wholly unsupported by the record.144
“Each party is entitled to the production of any witness whose testimony
on a matter in issue on the merits … would be relevant and necessary.”145 This
equal right to obtain witnesses includes the “equal opportunity to obtain expert
witnesses.”146
To justify production, an appellant must establish: (1) the qualifications of
the expert; (2) the subject matter of the expert testimony; (3) the basis for the
expert testimony; (4) the legal relevance of the evidence; (5) the reliability of
the evidence, and; (6) whether the probative value of the testimony outweighs
other considerations.147 The decision on a request for a witness should only be
reversed if, “on the whole,” denial of the defense witness was improper.148 An
appellate court “should not set aside a judicial action ‘unless it has a definite
and firm conviction that the court below committed clear error of judgment in
the conclusion it reached upon a weighing of the relevant factors.’”149
“A finding or sentence of a court-martial may not be held incorrect on the
ground of an error unless the error materially prejudices the substantial right
of the accused.”150
142 United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010).
143 United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (cleaned up).
144 United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004).
145 R.C.M. 703(b)(1).
146 Mil. R. Evid. 706(a).
147 United States v. Ruth, 46 M.J. 1, 4 (C.A.A.F. 1997) (citing United States v.
Houser, 36 M.J. 392, 398-99 (C.M.A. 1993)).
148 Id. at 3.
149 Id. (quoting Hauser, 36 M.J. at 397).
150 Article 59(a), UCMJ.
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Where a military judge deprives an appellant of expert testimony and con-
sequently deprives him or her of the right to present a defense, the error is
constitutional and the test for prejudice on appellate review is whether the
appellate court is able to declare a belief that it was harmless beyond a reason-
able doubt.151 “The inquiry for determining whether constitutional error is
harmless beyond a reasonable doubt is whether the government can convince
the Court that “there was no reasonable possibility that the error might have
contributed to the verdict.”152 “To say that an error did not ‘contribute’ to the
verdict is … to find that error unimportant to everything else the [members]
considered on the issue in question, as revealed in the record.”153
If the military judge's error was not of constitutional dimension, the appro-
priate standard is whether the court-martial's findings of guilt were substan-
tially influenced by the error.154 In such cases, we apply a four-part test to eval-
uate prejudice under this standard: “(1) the strength of the Government's case,
(2) the strength of the defense case, (3) the materiality of the evidence in ques-
tion, and (4) the quality of the evidence in question.”155
2. The military judge erred when he denied Appellant’s motion to compel Dr.
Juliet’s production to testify as a Defense expert in forensic psychiatry
In his motion to compel funding to employ Dr. Juliet as a defense expert
witness, Appellant argued that Dr. Juliet’s testimony was relevant and neces-
sary. He emphasized that, ultimately, his case came down to whether the alle-
gations of the alleged victim were accurate, truthful, and credible. Although
the Defense focused its argument on its contention that Dr. Juliet was neces-
sary to educate the members on the likely impact of the confluence of both al-
cohol and prescription medication upon Ms. Foxtrot’s ability to accurately per-
ceive and recall the events at issue, the Defense also emphasized that her con-
sumption of alcohol alone could have negatively affected her ability to remem-
ber the charged sexual activity. Indeed, Dr. Juliet testified on the motion that
it was possible that Ms. Foxtrot had experienced a fragmentary blackout on
the night in question. If such testimony had been offered at trial, it would have
151 United States v. McAllister, 64 M.J. 248, 251 (C.A.A.F. 2007).
152 United States v. Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019) (citing Chapman
v. California, 386 U.S. 18, 24 (1967)).
153 United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (cleaned up).
154McAllister, 64 M.J. at 250. See also United States v. Kohlbek, 78 M.J. 326, 334
(C.A.A.F. 2019).
155 Id. (cleaned up).
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directly supported the Defense’s theory that Ms. Foxtrot consented to Appel-
lant engaging in sexual activity with her, but did not remember doing so.
We find that a finding of fact key to the military judge’s denial of the De-
fense motion to compel the production of Dr. Juliet as an expert witness was
clearly erroneous. Specifically, the military judge found:
It is very well known by adults in the United States that al-
cohol impairs one’s memory. Even if someone has never con-
sumed alcohol, the phenomenon of memory loss after excessive
alcohol consumption is well represented in movies, television
and social media. Such a phenomenon will not come as a shock
to any of the members in this case. All of that will certainly be
within the ken of the members to consider and evaluate as they
decide the case.156
While we take no issue with a finding that most adults in the United States
have a general understanding that alcohol can impair one’s memory, we
sharply disagree with the military judge’s additional finding of fact that it
could be assumed the members who would sit in judgment of Appellant would,
based on either their personal drinking experience or what they had seen in
movies, on television, or on social media, have sufficient knowledge in a case
such as this, where the complex phenomenon of an alcohol-induced blackout
was it issue, to properly evaluate the ultimate issue. Indeed, the military
judge’s finding of fact that the members would possess sufficient lay knowledge
so as to render expert testimony unnecessary was made in the face of a directly
contrary—and unrebutted—assertion by Dr. Sierra, who said in her declara-
tion:
In my experience of criminal trials and general courts[-]mar-
tial trials, jury members do not readily possess sufficient under-
standing of the science behind human memory to accurately ap-
ply their knowledge, in their deliberations. The science is not
commonly known or understood correctly. The assumptions and
myths which many people adopt, about memory, often appear to
come from their own personal experience, which is not the same
as the empirical findings of valid and reliable science and re-
search. As a consequence of relying upon their limited
knowledge and experience in the science of memory, it is entirely
likely that the members would apply improper “lay persons’[”]
156 R. at 645-46.
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Opinion of the Court
understanding during their deliberations. The members’ conclu-
sions would very likely be incorrect as a result of this faulty
and/or inadequate understanding. This would appear to be prej-
udicial to the rights of the accused, who would likely wish to
know that the members are not relying solely upon their per-
sonal experiences during deliberations, but rather, upon objec-
tive science which affords them education in areas they may not
currently hold. I would be able to educate the members about
this science through expert testimony.157
Additionally, in his testimony on the motion, Dr. Juliet alluded to the in-
adequacy of reliance on lay understanding of memory issues when he stated:
A lay person typically thinks that memory works a bit like a
camera, where you see something and it’s stored straight into
long-term memory, kept to remember forever, but it’s more of a
reconstruction memory, subject to many errors and it’s very com-
plicated.158
In the face of this evidence that undermined the military judge’s finding of
fact that members would have a sufficient basis of knowledge in this case to
resolve issues concerning the effect of alcohol on memory (and particularly the
concept of blackouts) based on personal experience or what they read in the
news or watch for entertainment, there is no evidence in the record to support
his finding of fact. We add our observation that even if a member generally has
experience drinking alcohol, that by no means guarantees that he or she has
experience with blackouts, either en bloc or fragmentary. For all of these rea-
sons, we find the military judge’s finding of fact on this issue was clearly erro-
neous.159
Moreover, we find that the military judge abused his discretion with regard
to his conclusion of law that Dr. Juliet’s testimony was of “low probative value
because [Ms. Foxtrot] has already admitted that she does not remember the
incident.”160 Similarly, we find the military judge abused his discretion with
his conclusion of law, “[b]ecause [Ms. Foxtrot’s] recall of the alleged crimes is
not in issue, the probative value of [Dr. Juliet] is very low and is substantially
157 App. Ex. XII at 42-43.
158 R. at 424.
159 See Gore, 60 M.J. at 185.
160 R. at 644.
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outweighed by dangers of undue delay, wasting time, and needlessly present-
ing cumulative evidence.”161 To us, it leaps off the page that there is a signifi-
cant difference between a person not remembering an event because she was
asleep and her not remembering the event because she was awake but not
forming long-term memories because she was suffering from the effects of a
blackout. In committing this logical error, the military judge disregarded the
Defense’s clearly expressed theory that Ms. Foxtrot may have simply forgot
being awake (or was unable to access such a memory) and consenting to the
charged sexual activity due to a blackout. In doing so, he denied Appellant’s
opportunity to fully develop and present that theory to the finder of fact at
trial.
3. The military judge’s error was not harmless beyond a reasonable doubt
because it denied Appellant the opportunity to present a meaningful defense
We agree with Appellant that the correct standard for assessing prejudice
for the improper denial of Dr. Juliet as an expert witness is harmlessness be-
yond a reasonable doubt.162 We make this determination because he was de-
nied the right to present the defense that Ms. Foxtrot was awake and con-
sented to the charged sexual activity but could not remember due to the fact
that she was suffering from a fragmentary blackout during the incident. To be
sure, TDC made an effort in closing argument to raise the possibility that she
had been awake and consented but could not remember doing so due to alcohol
and Prozac in her system,163 but without Dr. Juliet’s testimony that Ms. Fox-
trot may have been experiencing a fragmentary blackout, it was an anemic
effort at best.
Had the military judge ordered the convening authority to fund Dr. Juliet
to travel to the court-martial and permitted him to testify as a defense expert
in the field of forensic psychiatry, Appellant could have presented a complete
defense that Ms. Foxtrot had been awake and consented to the sexual activity
but could not remember due to her consumption of alcohol resulting in a black-
out.164 Thus, we cannot conclude beyond a reasonable doubt that the military
161 Id. at 646.
162 Appellant’s Br. at 39-40.
163 R. at 2072-73.
164 We intentionally omit discussion about the possibility that the presence of Pro-
zac in Ms. Foxtrot’s system interacting with the alcohol she consumed could have am-
plified the effect of the alcohol she consumed vis-à-vis potential memory loss because
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judge’s error in denying the production of Dr. Juliet as a Defense expert wit-
ness did not contribute to Appellant’s conviction. As such, his convictions for
sexual assault and abusive sexual contact against Ms. Foxtrot must be set
aside.165
4. Assuming that the correct test to assess the prejudice caused by the mili-
tary judge’s denial of Dr. Juliet’s testimony under these circumstances is
whether the error materially prejudiced Appellant’s substantial rights, it would
still be necessary to reverse his convictions involving Ms. Foxtrot
In contrast to Appellant’s argument, the Government argues that if we
find the military judge committed error by denying the expert testimony of Dr.
Juliet, we should not apply the harmless beyond a reasonable doubt standard.
Rather, the Government argues that the correct standard is for us to assess
whether the error materially prejudiced Appellant’s substantial rights. Alt-
hough we disagree that this is the correct test to assess for prejudice under the
circumstances, even if we did apply this test the outcome would be the same.
Here, the case against Appellant was not as strong as the Government
would have us find. Although Appellant repeatedly admitted to engaging in
the charged sexual activity with Ms. Foxtrot, he also repeatedly asserted that
she was both awake and consented to the activity. The Government argues
that during the controlled text message conversation Appellant admitted that
Ms. Foxtrot had been asleep. However, our review of that text exchange includ-
ing its context leads us to believe that a reasonable finder of fact could conclude
that Appellant was being sarcastic when he texted “I knew you were sleep-
ing.”166 Indeed, immediately after sending that text, he confronted Ms. Foxtrot
and claimed that she “said [he] could” engage in sexual activity with her.167 He
then explained that he asked her if she had remembered the sexual activity
after it happened because he “was gonna see if [they] could do something
else…”168
The Defense case had some strength. It was uncontested that Ms. Foxtrot
had consumed alcohol to the point of intoxication prior to the incident. We
acknowledge about three hours elapsed from her last drink until Appellant
there is insufficient evidence in the record concerning the effects of combining this
specific medication with alcohol upon human memory.
165 See Hills, 75 M.J. at 357.
166 Pros. Ex. 1 at 17.
167 Id.
168 Id.
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Opinion of the Court
climbed into bed and engaged in sexual activity with her back in their room,
and it was unknown exactly how much she had drunk that evening. However,
had the Defense decided to make the possibility that Ms. Foxtrot had been
suffering from a blackout the primary theme of their case, there would still
have been a good faith basis to argue that a significant amount of alcohol may
have remained in Ms. Foxtrot’s system at the time of the charged sexual activ-
ity.
The evidence in question, Dr. Juliet’s testimony about the phenomena of
blackouts as well as his expert opinion that Ms. Foxtrot may have been expe-
riencing a fragmentary blackout on the evening in question, was material. Had
he been produced, Dr. Juliet’s testimony could have led a reasonable finder of
fact to conclude Ms. Foxtrot consented to the charged sexual activity but could
not remember due to having been blacked out, and that she was incorrectly
attributing her lack of memory to having been asleep at the time of the incident
(or, simply, that the Government had failed to prove the contrary beyond a
reasonable doubt). Without this evidence available to it, we infer the Defense
felt it necessary to adopt a weaker theme and theory of the case, that Ms. Fox-
trot was awake and consented to the charged sexual activity but only chose to
claim she was sexually assaulted after she returned to “IPAC High,” which the
Defense described as “something like a high school.”169
The quality of the evidence was sufficient to potentially sway a reasonable
member in favor of the Defense’s theory. We are convinced that Dr. Juliet’s
testimony about blackouts in general would have been noncontroversial, as
shown by the supporting declaration of Dr. Sierra, an independent expert. Dr.
Juliet’s opinion that Ms. Foxtrot may have been experiencing a fragmentary
blackout was subject to cross-examination that emphasized the fact that about
three hours had passed from the time of Ms. Foxtrot’s last drink to when she
gained access to her room and went to bed, thereby decreasing the likelihood
that she was in a blackout state at the time of the charged sexual activity.
However, due to the fact that she drank to the point of intoxication but did not
know exactly how much alcohol she consumed, the Defense theory that she still
had a substantial amount of alcohol in her system and was experiencing a
blackout during the charged sexual assault was at least plausible.
For these reasons, even if we were to apply the material prejudice to Ap-
pellant’s rights test to review the military judge’s error in denying the motion
to compel the production of Dr. Juliet as a Defense expert witness, we would
169 R. at 1452.
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still conclude that it is necessary for us to set aside his convictions for commit-
ting sexual assault and abusive sexual contact against Ms. Foxtrot.170
F. Allegation that Trial Defense Counsel were Ineffective for Failing
to Move to Suppress Appellant’s Statements to NCIS
1. Standard of review and the law
We review claims of ineffective assistance of counsel de novo.
A military suspect subject to custodial interrogation must be advised of his
or her right to remain silent, right to counsel, and the consequences of waiving
these rights.171 When a suspect unambiguously invokes his right to silence, law
enforcement must “scrupulously honor[]” this right and immediately cease
questioning.172 Statements taken in violation of these rules are “involun-
tary.”173 If the defense makes a timely motion or objection, an involuntary
statement is inadmissible at trial.174
In Strickland v. Washington, 175 the Supreme Court laid out the test that
guides our analysis. In order to prevail on such a claim, “an appellant must
demonstrate both (1) that his counsel’s performance was deficient, and (2) that
this deficiency resulted in prejudice.”176 The Appellant bears the “burden of
establishing the truth of factual matters relevant to the claim.”177 To establish
the element of deficiency, the appellant must first overcome “a strong presump-
170 See McAllister, 64 M.J. at 250.
171 Mil. R. Evid. 305(c) and (d).
172 Michigan v. Mosely, 423 U.S. 96, 104 (1975); Mil. R. Evid. 305(c)(4).
173 Mil. R. Evid. 304(a).
174 Id.175 466 U.S. 668 (1984).
176 United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466
U.S. at 687).
177 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008), aff’d, 556 U.S. 904,
(2009).
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tion that counsel’s conduct falls within the wide range of reasonable profes-
sional assistance.”178 A military appellate court “will not second-guess the stra-
tegic or tactical decisions made at trial by defense counsel.”179 If an appellant
raises the issue of ineffective assistance of counsel based upon a challenge
against the trial strategy or tactics of the defense counsel, “the appellant must
show specific defects in counsel’s performance that were ‘unreasonable under
prevailing professional norms.’”180 Only after an appellant has met his burden
and has demonstrated both deficiency and prejudice can we find in the appel-
lant’s favor on an ineffective assistance of counsel claim.181 Strategic decisions
to accept or forgo a potential benefit are not deficient when the decisions are
objectively reasonable.182
2. Appellant fails to show that the performance of his TDC was deficient
Assuming without deciding that Appellant made unambiguous invocations
of his right to silence that were ignored by NCIS while they interrogated him,
we conclude that his TDC were not ineffective despite the fact that they did
not move to suppress the remainder of his statements. In their declarations on
the issue, each of the three TDC make clear that after carefully considering
the issue and discussing it with supervisory counsel, they ultimately made the
decision to not seek suppression of the remainder of Appellant’s statement
based on a tactical consideration. Specifically, they believed that Appellant’s
statements to NCIS, both before and after the purported invocations, sup-
ported their theory of the case, that Ms. Foxtrot consented to the charged sex-
ual activity. Moreover, TDC viewed the admission of Appellant’s statements
as beneficial because they furthered the Defense theory of the case without
subjecting him to cross-examination. In the face of these credible assertions by
the TDC, Appellant has not overcome the presumption that it was a reasonable
tactical decision under the circumstances of this case for TDC to not seek sup-
pression of his statements to NCIS. For these reasons, Appellant has failed to
178 United States v. Scott, 81 M.J. 79, 84 (C.A.A.F. 2021) (quoting Strickland, 466
U.S. at 489).
179 United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001) (quoting United
States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993)).
180 United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009) (quoting United States
v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)) (cleaned up).
181 United States v. Cooper, 80 M.J. 664, 672 (N-M. Ct. Crim. App. 2020).
182 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).
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establish that his TDCs’ decision at issue was unreasonable under prevailing
professional norms, and in turn, that their performance was deficient.183
G. Factual Sufficiency of Appellant’s False Official Statement Convic-
tion
1. Standard of review and the law
We review each case de novo for factual sufficiency.184
In evaluating factual sufficiency, we must determine whether, after evalu-
ating all the evidence in the record of trial and making allowances for not hav-
ing observed the witnesses, we are convinced of Appellant’s guilt beyond a rea-
sonable doubt.185 In performing this function, we must take “a fresh, impartial
look at the evidence,” applying “neither a presumption of innocence or a pre-
sumption of guilt,” and we must make our own, “independent determination
as to whether the evidence constitutes proof of each required element beyond
a reasonable doubt.”186 Reasonable doubt, however, does not mean the evidence
must be free from conflict.187
The elements of false official statement are: (1) that the accused made a
certain false official statement; (2) that the statement was false; (3) that the
accused knew it to be false at the time of making it; and (4) that the accused
made the statement with the intent to deceive.188
2. Appellant’s conviction for false official statement is factually sufficient
Appellant challenges the factual sufficiency of his false official statement
conviction arguing that the Government failed to prove beyond a reasonable
doubt both that statements at issue were false and that he made them.
The Government charged Appellant with making multiple false official
statements to the OOD over a period of time that he was excused from partic-
ipating in various restriction musters. To prove this specification, trial counsel
presented a strong circumstantial case that Appellant made repeated calls to
the OOD, while impersonating at least two members of his chain of command,
183 See Strickland, 466 U.S. at 689; Scott, 81 M.J. at 84.
184 Art. 66, UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
185 Turner, 25 M.J. at 325.
186 Washington, 57 M.J. at 399.
187 United States v. Lepresti, 52 M.J. 644, 648 (N-M. Ct. Crim. App. 1999).
188 Art. 107, UCMJ.
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and making statements that he was excused from restriction muster because
he was participating in such events as volunteer events and church services.
Moreover, these two members of his chain of command, Appellant’s OIC and
SNCOIC, each testified credibly that they made no such calls to the OOD to
excuse the Appellant from restriction musters for these purposes. Thus, we are
convinced that the statements at issue were false. Additionally, because Ap-
pellant was the only person who could benefit from such statements being
made to the OOD, we are convinced that he was the one who made them.
We have carefully reviewed the record of trial, the briefs of counsel, and
have given no deference—other than to recognize that the finders of fact heard
and saw the witnesses in person—to the factual determinations made at the
trial level. Based on that review, we are convinced beyond a reasonable doubt
that Appellant committed the offense of false official statement as charged.
III. CONCLUSION
The findings of guilty with regard to Specification 2 of Charge I (sexual
assault) and Specification 4 of Charge I (abusive sexual contact), and to Charge
I, as listed on the original charge sheet, and the sentence are SET ASIDE. All
remaining findings are AFFIRMED. A rehearing is authorized.
Senior Judge STEPHENS and Judge DEERWESTER concur.
FOR THE COURT:
KYLE D. MEEDER
Clerk of Court
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