United States v. Moss

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40249
________________________
UNITED STATES
Appellee
v.
Derek N. MOSS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 7 April 2023
________________________
Military Judge: Elijah F. Brown (arraignment and motions); Christina
M. Jimenez (motions and trial).
Sentence: Sentence adjudged on 10 September 2021 by GCM convened
at Cannon Air Force Base, New Mexico. Sentence entered by military
judge on 17 November 2021: Bad-conduct discharge, confinement for 10
months, and reduction to E-1.
For Appellant: Major Megan E. Hoffman, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John
P. Patera, USAF; Captain Olivia B. Hoff, USAF; Captain Jocelyn Q.
Wright, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, GOODWIN, and GRUEN, Appellate Military Judges.
Judge GOODWIN delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge GRUEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Moss, No. ACM 40249
GOODWIN, Judge:
A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of one specification of wrongfully viewing child pornogra-
phy in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 934.1 The military judge sentenced Appellant to a bad-conduct dis-
charge, confinement for ten months, and reduction to the grade of E-1. The
convening authority took no action on the findings or sentence.
Appellant raises four issues for our consideration which we have reordered
and reworded: (1) whether Appellant’s conviction is legally and factually suffi-
cient; (2) whether trial defense counsel were ineffective when they did not ob-
ject to a National Center for Missing and Exploited Children (NCMEC)
CyberTipline report being admitted into evidence; (3) whether, despite lack of
objection, the military judge erred by admitting the CyberTipline report into
evidence; and (4) whether the Air Force violated Appellant’s right to a speedy
trial when it did not docket his record with this court within 150 days of his
sentence.
I. BACKGROUND
Appellant was stationed at Cannon Air Force Base (AFB), New Mexico, at
the time of the offense for which he was convicted. On 4 May 2020, NCMEC
sent the New Mexico Attorney General’s Office (NMAGO) a CyberTipline re-
port regarding suspected Internet child exploitation involving an Internet Pro-
tocol (IP) address in Clovis, New Mexico. The assigned NMAGO analyst, Ms.
HR, notified local law enforcement in Clovis, New Mexico, and was told that
Air Force Office of Special Investigation (AFOSI) agents at Cannon AFB were
already investigating the case. Thereafter, Ms. HR forwarded the CyberTipline
report to AFOSI agents.
According to the CyberTipline report, someone used the IP address issued
to an Air Force member, Mr. AS,2 to conduct a reverse image Internet search
using a known image of child pornography.3 Appellant shared Mr. AS’s resi-
dence and Internet access; the CyberTipline report did not specify the identity
of the Internet user who conducted the reverse image search. AFOSI agents
1The court-martial found Appellant not guilty of one specification of possessing child
pornography in violation of Article 134, UCMJ.
2 Mr. AS was an active-duty Air Force member during the investigation but had sepa-
rated from the service by the time of the court-martial. Mr. AS was a civilian when he
testified at Appellant’s court-martial.
3This particular search engine allows users to provide an image, after which the pro-
gram will return search results of similar images.
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United States v. Moss, No. ACM 40249
arrested Mr. AS and searched his electronic devices. Although he was their
initial primary suspect, agents ultimately determined Mr. AS had not viewed
or possessed child pornography. AFOSI agents also interviewed Appellant,
who denied viewing or possessing child pornography and consented to a search
of his electronic devices.
AFOSI agents sent Appellant’s devices to the DoD Cyber Crime Center
(DC3). During the analysis of Appellant’s laptop, which was named “Derek-
PC” and was password protected, DC3 analysts discovered seven still images
of suspected child pornography.4 These seven still images were located in the
laptop’s Mozilla Firefox Internet browser cache folder and had been automati-
cally cached by the web browser on or about 18 July 2018. DC3 analysts did
not find the image of known child pornography that triggered the CyberTipline
report regarding Appellant’s laptop. DC3 analysts, however, did discover five
still images similar to the CyberTipline image in the laptop’s Google Chrome
cache.
According to the Government’s digital forensic expert, Mr. BM, when a com-
puter user goes to an Internet website containing images, the Internet web
browsers automatically save image files to cache folders specific to that partic-
ular browser. A computer user does not control what images are stored in the
browser cache folder and, while a user can delete all files in the cache folder, a
user cannot delete specific files from browser cache. Furthermore, an average
computer user cannot access files located in browser cache.
When the suspected images of child pornography were cached, the laptop’s
web browsers were caching approximately 80 images per minute. The seven
charged still images of suspected child pornography were among over 1700 to-
tal images in the Internet web browser cache of Appellant’s laptop. The seven
charged images were all “thumbnails,” and all had creation timestamps of 18
July 2018, between 5:20:23 a.m. and 5:40:56 a.m. Two still images were created
simultaneously in a web browser cache folder, and a third was created four
seconds later.
Mr. BM conceded that the presence of an image in an Internet web browser
cache does not prove that a user had seen the file, and that non-pornography
searches might lead a computer user to pornographic images. Mr. BM also
found no data-wiping or deleting software on Appellant’s laptop. No testimony
was presented regarding whether Appellant’s laptop had been connected to Mr.
AS’s IP address.
4None of Appellant’s devices besides his Alienware laptop contained suspected child
pornography.
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United States v. Moss, No. ACM 40249
However, the DC3 analysis discovered that, also on 18 July 2018, the user
of the laptop’s “Derek” user profile had entered search terms commonly asso-
ciated with child pornography into multiple Internet web browsers. According
to Ms. HR, locating child pornography on the Internet is “pretty difficult . . .
without seeking it out” because Internet platforms and service providers dili-
gently remove such content to avoid fines.
A pediatrician, Dr. JS, reviewed the seven still images and testified that
the persons depicted in six of them ranged between approximately 5 and 11
years of age. However, Dr. JS was unable to give a specific age for the seventh
image because of the individual’s body position. The Government produced ev-
idence that the girls in these still images were photographed in ways that con-
stitute “sexually explicit conduct” as defined in the Manual for Courts-Martial,
United States (2019 ed.) (MCM), pt. IV, ¶ 95.c.(10).5
In addition to the seven still images, DC3 analysts discovered a partially
downloaded video of apparent child pornography in the “downloads” folder of
the “Derek” user profile on Appellant’s laptop. The partial video is seven
minutes and 48 seconds in length, and the suspected child pornography begins
four minutes and seven seconds into the video. At that point, the young female
in the partial video begins taking actions that constitute “sexually explicit con-
duct” as defined in the MCM, pt. IV, ¶ 95.c.(10).
According to Mr. BM, the partially downloaded video was playable on VLC
media player, had been loaded by the VLC media player on Appellant’s laptop,
and was created by the computer user in the “downloads” folder of the com-
puter on 24 April 2018. Mr. BM testified that, on 16 April 2020, a Windows
link file—a shortcut that points to a file and shows that the file was “interacted
with” by a computer user—was created for the partial video. However, Mr. BM
also testified that the partially downloaded video was corrupted and would
likely give the user an error message if the user tried to play it.
Dr. JS reviewed the partially downloaded video and testified that the young
female in the video was probably 15 or 16 years of age. However, Dr. JS also
testified that the young female had “completed puberty” and could be 18 years
of age.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
5We find it unnecessary to describe the graphic content of the still images and partial
video in detail.
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United States v. Moss, No. ACM 40249
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at
trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021)
(citation omitted), rev. denied, 82 M.J. 312 (C.A.A.F. 2022).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (citation omitted).
“[T]he term ‘reasonable doubt’ does not mean that the evidence must be free
from any conflict . . . .” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(citation omitted). “[I]n resolving questions of legal sufficiency, we are bound
to draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (cita-
tions omitted). Thus, “[t]he standard for legal sufficiency involves a very low
threshold to sustain a conviction.” King, 78 M.J. at 221 (alteration in original)
(citation omitted).
“The test for factual sufficiency is ‘whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.’” Rodela, 82 M.J. at 525 (second alteration in original) (quoting United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this unique
appellate role, we take ‘a fresh, impartial look at the evidence,’ applying ‘nei-
ther a presumption of innocence nor a presumption of guilt’ to ‘make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.’” United States v. Wheeler,
76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting
Washington, 57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
The offense of viewing child pornography under Article 134, UCMJ, as
charged in Appellant’s case, requires the following elements: (1) knowingly and
wrongfully viewing child pornography; and (2) under the circumstances, the
conduct is of a nature to bring discredit upon the armed forces. See MCM, pt.
IV, ¶ 95.b.(1).
Child pornography is “material that contains either an obscene visual de-
piction of a minor engaging in sexually explicit conduct or a visual depiction of
an actual minor engaging in sexually explicit conduct.” MCM, pt. IV, ¶ 95.c.(4).
A minor is “any person under the age of 18 years.” MCM, pt. IV, ¶ 95.c.(7).
“Sexually explicit conduct” means actual or simulated:
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United States v. Moss, No. ACM 40249
(a) sexual intercourse or sodomy, including genital to genital,
oral to genital, anal to genital, or oral to anal, whether between
persons of the same or opposite sex;
(b) bestiality;
(c) masturbation;
(d) sadistic or masochistic abuse; or
(e) lascivious exhibition of the genitals or pubic area of any per-
son.
MCM, pt. IV, ¶ 95.c.(10).
To be convicted of viewing child pornography, an appellant must be “aware
that the images were of minors, or what appeared to be minors, engaged in
sexually explicit conduct.” MCM, pt. IV, ¶ 95.c.(5). “Awareness may be inferred
from circumstantial evidence such as . . . search terms used” by the appellant.
Id.
2. Analysis
Appellant challenges the legal and factual sufficiency of his conviction for
viewing child pornography, arguing that the Prosecution failed to prove he
viewed the seven still images or the single partially downloaded video file.
Having given full consideration to Appellant’s arguments and drawing
every reasonable inference from the evidence of record in favor of the Govern-
ment, we conclude the evidence was legally sufficient to support Appellant’s
conviction. Additionally, having weighed the evidence in the record of trial, and
having made allowances for the fact that the members personally observed the
witnesses and we did not, we also find the evidence factually sufficient.
We first address the nature of the seven still images and the partially down-
loaded video file charged in this case and whether the evidence is legally and
factually sufficient to prove that they are, in fact, child pornography. As noted
above, the Government introduced evidence that the girls depicted in the seven
still images engaged in what constitutes sexually explicit conduct. Dr. JS tes-
tified that the girls depicted in six of the seven still images ranged from ap-
proximately 5 to 11 years of age but was unable to give a specific age for the
seventh image because of the girl’s body position. The young female depicted
in the partially downloaded video was also engaged in sexually explicit conduct
in the video. Dr. JS testified that this young female was probably 15 or 16 years
of age but conceded that she had “completed puberty” and could be 18 years of
age. The court has reviewed all of these images, as did the members. Drawing
every reasonable inference from the evidence in favor of the Government and
weighing the evidence ourselves, we conclude that the evidence is legally and
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United States v. Moss, No. ACM 40249
factually sufficient to prove that the video and multiple image files “were of
minors, or what appeared to be minors, engaged in sexually explicit conduct”
and constitute child pornography as defined in the MCM, pt. IV, ¶ 95.c.(5).
We next address whether the evidence was legally and factually sufficient
to prove that Appellant wrongfully viewed these images of child pornography
and that his actions were of a nature to bring discredit upon the armed forces.
As noted above, the Government produced no direct evidence that Appellant
viewed these images of child pornography. There was no eyewitness to the
viewing. Mr. BM could not place Appellant in control of the laptop when the
still images were cached, or when the partial video was created on the laptop
or subsequently “interacted with” by the computer user. Mr. BM conceded that
the presence of an image in a browser cache does not prove the user has seen
the file, and that non-pornography searches might bring up pornographic im-
ages. Mr. BM also found no data-wiping or deleting software on Appellant’s
laptop. No testimony was presented regarding whether or not Appellant’s lap-
top had been connected to Mr. AS’s IP address.
However, as noted above, on 18 July 2018—the same day that the seven
charged still images were cached, someone using the “Derek” user profile of
Appellant’s laptop typed search terms commonly associated with child pornog-
raphy—many of which sound like child pornography to the layperson’s ear—
into multiple Internet browsers.
DC3 analysts discovered the partially downloaded video that had been cre-
ated in the “downloads” folder of the “Derek” user profile on Appellant’s laptop
on 24 April 2018. Based on Mr. BM’s testimony, the partial video was playable
on a VLC media player and had been loaded by the VLC media player installed
on Appellant’s laptop. Nearly two years after the file was created, on 16 April
2020, a user of Appellant’s laptop “interacted with” the video file.
Appellant’s actions drew the attention of non-Air Force entities such as
NCMEC, NMAGO, and Clovis law enforcement. Furthermore, when asked how
an Air Force member being the subject of a child pornography investigation
affected her view of the Air Force, Ms. HR testified that she found it “sad and
disheartening” and that she had “high expectations for our military—the mem-
bers of the military.”
Drawing every reasonable inference from the evidence in favor of the Gov-
ernment for our legal sufficiency review and weighing the evidence ourselves
for our factual sufficiency review, we conclude that the evidence was legally
and factually sufficient to prove that Appellant viewed the still images and
partially downloaded video, that Appellant’s conduct was of a nature to bring
discredit upon the armed forces, and to support Appellant’s conviction for view-
ing child pornography.
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United States v. Moss, No. ACM 40249
B. Claimed Ineffective Assistance of Counsel
1. Additional Background
Appellant next asserts that trial defense counsel were constitutionally in-
effective by failing to object to admission of the NCMEC CyberTipline report.
It is uncontroverted that the CyberTipline report contained testimonial hear-
say statements offered to prove the truth of the matter asserted therein. It is
likewise uncontroverted that trial defense counsel did not object to the report’s
admission as evidence.
2. Law
The Sixth Amendment6 of the United States Constitution guarantees an
accused the right to effective assistance of counsel. United States v. Gilley, 56
M.J. 113, 124 (C.A.A.F. 2001). We review allegations of ineffective assistance
de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United
States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). In assessing the effective-
ness of counsel, we apply the standard established in Strickland v. Washing-
ton, 466 U.S. 668, 687 (1984), and begin with the presumption of competence
announced in United States v. Cronic, 466 U.S. 648, 658 (1984). Gilley, 56 M.J.
at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000)).
“[O]ur scrutiny of a trial defense counsel’s performance is ‘highly deferential,’
and we make ‘every effort . . . to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged conduct, and to eval-
uate conduct from counsel’s perspective at the time.’” United States v. Akbar,
74 M.J. 364, 379 (C.A.A.F. 2015) (omission in original) (quoting Strickland, 466
U.S. at 689).
We will not second-guess reasonable strategic or tactical decisions by trial
defense counsel. Mazza, 67 M.J. at 475 (citation omitted). “Defense counsel do
not perform deficiently when they make a strategic decision to accept a risk or
forego a potential benefit, where it is objectively reasonable to do so.” United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citing Gooch, 69 M.J. at362−63). The burden is on the appellant to demonstrate both deficient perfor-
mance and prejudice. Id. (citation omitted).
We consider the following questions to determine whether the presumption
of competence has been overcome: (1) if appellant’s allegations are true,
whether there is a reasonable explanation for counsel’s actions; (2) if appel-
lant’s allegations are true, whether defense counsel’s level of advocacy fell
measurably below the performance ordinarily expected of fallible lawyers; and
(3) if defense counsel was ineffective, whether there is a reasonable probability
6 U.S. CONST. amend. VI.
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United States v. Moss, No. ACM 40249
that, absent the errors, there would have been a different result. Gooch, 69
M.J. at 362 (citing United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)). Con-
sidering the last question, “[i]t is not enough to show that the errors had some
conceivable effect on the outcome;” instead, the reasonable probability must be
“a probability sufficient to undermine confidence in the outcome,” including “a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Datavs, 71 M.J. at 424 (internal quotation
marks and citations omitted).
3. Analysis
Appellant provided a declaration in support of his claim of ineffective as-
sistance of counsel. As ordered by the court, both trial defense counsel, Captain
(Capt) VC and Capt AB, provided declarations responding to Appellant’s claim.
The court granted motions to attach these declarations to the record.7 Consid-
ering the record, including these declarations, we conclude that there exists a
reasonable explanation for trial defense counsel’s decision not to object to ad-
mission of the CyberTipline report. We further conclude that trial defense
counsel’s level of advocacy did not fall measurably below the performance or-
dinarily expected of fallible lawyers. Finally, we conclude that Appellant has
not met the required showing of prejudice.
In her declaration, Capt VC explains her rationale for not objecting to the
CyberTipline report as follows:
The decision not to object to the CyberTipline report was inten-
tional and strategic. The inclusion of this evidence was the bed-
rock of the trial defense team’s theory and our goal to identify a
potential “scapegoat” for the alleged misconduct and create
doubt in the minds of the members.
First, the CyberTipline report line report tied the IP address as-
sociated with the suspected child pornography to [Mr. AS], [Ap-
pellant]’s roommate. The inclusion of this evidence allowed trial
defense to make good faith arguments that [Mr. AS] was the po-
tential offender or “scapegoat” who the Government could not
rule out as the actual offender.
Second, and more importantly, this evidence was critical to the
[D]efense’s theory, fully explored in both my cross[-]examination
of the [DC3] expert as well as my closing argument, that the
7 We considered the declarations in accordance with United States v. Jessie, 79 M.J.
437, 442 (C.A.A.F. 2020) (observing a Court of Criminal Appeals is allowed to accept
affidavits “when necessary for resolving claims of ineffective assistance of trial defense
counsel”).
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United States v. Moss, No. ACM 40249
Government never found the images from the CyberTipline re-
port on [Appellant]’s computer. Without evidence of those im-
ages actually on [Appellant]’s computer, trial defense was able
to illustrate in cross[-]examination that forensic examiners were
just hunting for any shred of evidence of potential child pornog-
raphy. Then, in closing, I was able to argue that the forensic ex-
aminers found only thumbnails from search results, and the
Government could not prove beyond a reasonable doubt [Appel-
lant] had actually viewed the alleged child pornography. With-
out the CyberTipline report, the trial defense’s scapegoat argu-
ment would have been much less compelling. Moreover, our ar-
guments regarding the Government’s behavior in hunting for—
and then charging—a few thumbnails when they could not tie
the CyberTipline report images to [Appellant]’s computer would
have been substantially weakened.
During my conversations with our defense digital forensic ex-
pert, Ms. [CP], and the Government’s digital forensic expert, my
understanding was that [reverse] “visual search” was a means
for searching akin to typing in search terms, pasting a URL, or
dragging an image into the search box either from the user’s
computer or from another web browser. Using this search engine
in this manner does not amount to a transferring of the image’s
ownership and it is therefore not distribution. This understand-
ing bolstered the defense team’s decision not to object to the in-
clusion of references to “visual search” in the CyberTipline re-
port.
Capt AB’s declaration contained substantially the same information regarding
the trial defense team’s decision to not object to admission of the evidence.
As discussed above, we will not second-guess reasonable strategic or tacti-
cal decisions by trial defense counsel. See Mazza, 67 M.J. at 475. Appellant
bears the burden to demonstrate both deficient performance and prejudice. Id.Trial defense counsel’s decision here constituted a strategic decision regarding
which defense to mount. This decision was reasonable under the circum-
stances. We will not second-guess this decision and find neither deficient per-
formance nor prejudice.
C. Trial Judge’s Admission of the “CyberTipline Report ”
Appellant next claims that, despite lack of objection, the military judge
erred by admitting the CyberTipline report and that this error violated Appel-
lant’s constitutional right to confront witnesses against him.
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United States v. Moss, No. ACM 40249
1. Law
“When an appellant does not raise an objection to the admission of evidence
at trial, we first must determine whether the appellant waived or forfeited the
objection.” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (citation omit-
ted).
Waiver usually occurs when there is an intentional relinquish-
ment or abandonment of a known right . . . . When an appellant
fails to raise a Confrontation Clause objection at trial, [appellate
courts consider] the particular circumstances of the case to de-
termine whether there was waiver but appl[y] a presumption
against finding a waiver of constitutional rights.
United States v. Bench, 82 M.J. 388, 392 (C.A.A.F. 2022) (alterations, internal
quotation marks, and citations omitted). “A waiver of a constitutional right is
effective if it clearly established that there was an intentional relinquishment
of a known right.” Jones, 78 M.J. at 44 (internal quotation marks and citation
omitted).
Our superior court has held that, in instances of waiver, we remain obliged
under Article 66, UCMJ, 10 U.S.C. § 866, to “assess the entire record to deter-
mine whether to leave [Appellant’s] waiver intact, or to correct [an] error.”
United States v. Hardy, 76 M.J. 732, 737 (C.A.A.F. 2017) (quoting United
States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016)).
If we find that an appellant did not waive an issue but merely forfeited it,
we review for plain error. See United States v Sweeney, 70 M.J. 296, 304
(C.A.A.F. 2011). Plain error occurs “where (1) there was error, (2) the error was
plain and obvious, and (3) the error materially prejudiced a substantial right
of the accused.” Id. (citation omitted).
2. Analysis
Again, it is undisputed that the CyberTipline report contained testimonial
hearsay and that it was admitted into evidence without objection. Appellant
contends that trial defense counsel’s non-objection to the CyberTipline report
was not a strategic decision and therefore constituted forfeiture and not
waiver. Appellant further contends that the quantity of trial defense counsel’s
other objections shows that the non-objection to the CyberTipline report was a
mistake by counsel.
In support of his argument, Appellant states in his declaration: “In the
week leading up to my trial, I remember discussing the [CyberTipline report]
with my attorneys, but I do not remember my attorneys telling me they would
not object to its admission.” Appellant further states that the discussion of the
CyberTipline report was “extremely limited” and that he “did not knowingly
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United States v. Moss, No. ACM 40249
waive [his] right to object to the report’s admission or [his] Confrontation
Clause rights.”
As discussed above, we find trial defense counsel’s decision not to object to
the CyberTipline report a strategic one. Further explaining the strategy,
Capt VC states in her declaration that “[t]he choice not to object to the CyberT-
ipline report line report generally and specifically on confrontation grounds
was a strategic one” wherein “the trial defense team wielded objections (includ-
ing those of a constitutional magnitude) as a scalpel to a strategic end.” She
further explained that she made the decision to object to the DC3 report re-
garding Mr. AS (an objection sustained by the military judge) but not to object
to the CyberTipline report because the DC3 report undermined the “scapegoat”
defense, while the CyberTipline report cited Mr. AS as a potential suspect.
Because we find trial defense counsel’s decision not to object to the Cyber-
Tipline report was both intentional and strategic and that Appellant’s right to
confront the witness or witnesses who drafted the CyberTipline report was in-
tentionally relinquished for strategic reasons, we further find that Appellant
waived this issue at trial.
However, even had we found that Appellant forfeited the issue rather than
waived it, and reviewing for plain error, we would find no error, much less one
that was “plain and obvious.” Sweeney, 70 M.J. at 304. Had the military judge
sua sponte refused admission of the CyberTipline report, she would have inap-
propriately inserted herself into the defense strategy and potentially under-
mined the primary defense theory. Had the military judge taken a lesser course
of action and asked specific questions about waiver of the confrontation right,
she would have placed the Defense in the unenviable position of having to dis-
cuss its trial strategy prematurely. Under the circumstances, we find that the
military judge acted appropriately and committed no error. Consequently, Ap-
pellant’s argument would also fail under plain error review.
D. Post-Trial Delay
Appellant was sentenced on 10 September 2021. However, the record of
trial was not docketed with this court until 10 February 2022. This 153-day
lapse exceeded the 150-day threshold for a facially unreasonable post-trial de-
lay this court established in United States v. Livak, 80 M.J. 631, 633 (A.F. Ct.
Crim. App. 2020). Accordingly, we have considered the four factors identified
in United States v. Moreno to assess whether Appellant’s due process right to
timely post-trial and appellate review has been violated: “(1) the length of the
delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to
timely review and appeal; and (4) prejudice.” 63 M.J. 129, 135 (C.A.A.F. 2006)
(first citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); then citing
Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004) (per curiam)). “We
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United States v. Moss, No. ACM 40249
review de novo claims that an appellant has been denied the due process right
to a speedy post-trial review and appeal.” Id. (citations omitted).
Moreno identified three types of prejudice for purposes of an appellant’s
due process right to timely post-trial review: (1) oppressive incarceration; (2)
anxiety and concern; and (3) impairment of the appellant’s grounds for appeal
or ability to present a defense at a rehearing. Id. at 138–39 (citations omitted).
However, Appellant does not allege any specific prejudice from the delay in this
case, and we perceive none. Where there is no qualifying prejudice from the
delay, there is no due process violation unless the delay is so egregious as to
“adversely affect the public’s perception of the fairness and integrity of the mil-
itary justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
Having considered all the circumstances, although the post-trial processing of
Appellant’s case could have been accomplished more rapidly, we do not find
the delay so egregious as to impugn the fairness or integrity of the military
justice system.
Recognizing our authority under Article 66, UCMJ, we have also carefully
considered whether relief for excessive post-trial delay is appropriate in this
case even in the absence of a due process violation. See United States v. Tardif,
57 M.J. 219, 225 (C.A.A.F. 2002). After evaluating the factors enumerated in
United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J.
264 (C.A.A.F. 2016), we conclude no such relief is warranted.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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