United States v. Alton

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40215
________________________
UNITED STATES
Appellee
v.
Brian W. ALTON
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 28 April 2023
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Military Judge: Christina M. Jimenez.
Sentence: Sentence adjudged on 28 July 2021 by GCM convened at
Creech Air Force Base, Nevada. Sentence entered by military judge on
1 September 2021: Dishonorable discharge, confinement for 14 years,
forfeiture of all pay and allowances, and reduction to E-1.
For Appellant: Major Eshawn R. Rawlley, USAF; Catherine M. Cher-
kasky, Esquire.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major John P. Patera, USAF; Major
Brittany M. Speirs, USAF; Captain Olivia B. Hoff, USAF; Captain Joce-
lyn Q. Wright, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, ANNEXSTAD, and GRUEN, Appellate Military
Judges.
Chief Judge JOHNSON delivered the opinion of the court, in which
Judge ANNEXSTAD 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This is an unpublished opinion and, as such, does not serve as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. Alton, No. ACM 40215
JOHNSON, Chief Judge:
The military judge found Appellant guilty, in accordance with his pleas, of
one specification of conspiracy to obstruct justice and two specifications of ob-
structing justice in violation of Articles 81 and 131b, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 881, 931b. A general court-martial composed of
officer and enlisted members found Appellant guilty, contrary to his pleas, of
one specification of wrongfully leaving the scene of an accident, one specifica-
tion of drunken operation of a vehicle resulting in injury, one specification of
drunken operation of a vehicle not resulting in injury, and one specification of
involuntary manslaughter, in violation of Articles 111, 113, and 119, UCMJ,
10 U.S.C. §§ 911, 913, 919. Appellant elected to be sentenced by the military
judge, who imposed a dishonorable discharge, confinement for 14 years, forfei-
ture of all pay and allowances, and reduction to the grade of E-1. The convening
authority took no action on the sentence.
Appellant raises five issues for our review: (1) whether the court-martial
lacked jurisdiction over Appellant; (2) whether the military judge abused her
discretion by allowing the court members to receive certain testimony from a
government expert witness; (3) whether the findings of guilty with respect to
the contested charges and specifications are legally and factually sufficient; (4)
whether the military judge abused her discretion by declining to instruct the
court members that a guilty verdict must be unanimous; and (5) whether Ap-
pellant’s sentence is inappropriately severe. We have carefully considered is-
sue (4) and find it does not require discussion or warrant relief. See United
States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). As to the remaining issues,
we find no material prejudice to Appellant’s substantial rights, and we affirm
the findings and sentence.
I. BACKGROUND
In May 2019, Appellant was stationed at Creech Air Force Base (AFB), Ne-
vada, and lived in Las Vegas, Nevada. On the night of 2 May 2019, after Ap-
pellant completed work for the day he drove his pickup truck to the apartment
of his friend Airman First Class (A1C) WM.1 Appellant then drove himself and
A1C WM to a bar approximately two miles from Appellant’s house, arriving
shortly before midnight. Appellant and A1C WM were recorded by security
video cameras inside the bar. Between midnight and 0411, Appellant
1 A1C WM was charged and sentenced by a general court-martial for his actions on 3
May 2019. See United States v. Marable, No. ACM 39954, 2021 CCA LEXIS 662 (A.F.
Ct. Crim. App. 10 Dec. 2021) (unpub. op.), rev. denied, No. 22-0107, 2022 CAAF LEXIS
244 (C.A.A.F. 29 Mar. 2022). A1C WM was an airman basic at the time of Appellant’s
trial.
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United States v. Alton, No. ACM 40215
consumed two 12-ounce beers, three 16-ounce beers, four shots of liquor, and
two alcoholic mixed drinks; A1C WM consumed a similar amount of alcohol. At
0411, Appellant and A1C WM departed the bar and entered Appellant’s truck,
and Appellant began driving to his house.
A1C WM later described himself as “pretty intoxicated” at that point, and
he was “kind of just like in and out of being conscious” as he rode in Appellant’s
truck. During the drive A1C WM heard Appellant say that Appellant might
have hit someone. However, Appellant did not stop and continued to drive to
his house, where Appellant backed into his driveway at approximately 0415.
Appellant and A1C WM got out of the truck and inspected the front of the
vehicle. Among other damage, they found the driver’s side (left) headlight as-
sembly was gone and the left front bumper was significantly bent, and there
was blood on the front of the truck. Appellant attempted to clean the blood off
the truck with a rag and spray bottle.
Appellant and A1C WM then decided to walk back to the scene of the acci-
dent because they were concerned debris from Appellant’s truck at the scene
would link them to the accident. They walked approximately two blocks back
to the scene of the accident where they found the body of FM lying at the side
of the street. FM was a retired Army sergeant major who lived nearby and
exercised early most mornings by walking around the neighborhood. FM had
been struck near the middle of the crosswalk across the four-lane road; his
body had been knocked approximately 130 feet from the point of impact, and
he had been killed almost instantly. FM’s right leg had been severed at the hip
and had come to rest some distance away from the rest of the body. Pieces of
debris from Appellant’s truck lay scattered in the street. Appellant and A1C
WM began picking up pieces from the truck; they intended to dispose of the
pieces in order to conceal their involvement.
An unidentified bicyclist approached the intersection while Appellant and
A1C WM were there, which prompted them to hide the truck pieces they had
gathered in nearby bushes. Another bicyclist, JT, also arrived. Appellant and
A1C WM claimed they were walking home from a bar when they discovered
FM’s body. In order to encourage the bicyclists to leave, A1C WM told them he
and Appellant would call the emergency services to the scene; after his assur-
ances, the bicyclists departed. Appellant and A1C WM then continued collect-
ing truck pieces, which they carried back to Appellant’s house.
At Appellant’s house, they placed the pieces in Appellant’s girlfriend’s ve-
hicle. Appellant then drove that vehicle, accompanied by A1C WM, approxi-
mately 10 to 15 minutes to an uninhabited area and threw the pieces “into the
desert” so they would not be found. Appellant and A1C WM then drove back to
Appellant’s house, arriving at approximately 0535. A1C WM went inside
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United States v. Alton, No. ACM 40215
Appellant’s house to the guest room to sleep. After parking his girlfriend’s ve-
hicle, Appellant moved his damaged truck from his driveway to the side of the
street across from his house before he, too, went inside. Unknown to Appellant,
some of his movements in front of his house that morning were recorded on the
motion-activated security camera of a neighbor across the street.
In the meantime, after the bicyclist JT departed the scene of the accident
he rode approximately two blocks to a location where he knew police were often
stationed, but he found no one there. JT then rode back to the scene of the
accident and was surprised to find it deserted with FM’s body still lying at the
side of the road. JT called the Las Vegas police and waited at the scene until
they arrived.
When the police arrived, they could tell from the remaining debris in the
street that FM had been struck by a vehicle traveling in a particular direction
that must have suffered significant damage. The police searched the surround-
ing area and found Appellant’s damaged truck parked across the street from
his house. The police identified Appellant as the owner of the truck. When the
police spoke with Appellant that morning, Appellant told them—among other
things—that he had left his truck parked in his driveway, that he did not know
how his truck came to be parked across the street, and that he had not been at
the bar the night before.
Appellant’s blood was drawn at 1041 and again at 1142 that morning to
test its alcohol content. The 1041 sample indicated a blood alcohol content
(BAC) of 0.029 grams of alcohol per 100 milliliters of blood. The 1142 sample
indicated a BAC of between 0.010 and 0.020 grams; however, no specific con-
centration was indicated for this sample because the policy of the Las Vegas
Metropolitan Police Department Toxicology Lab treated results in that range
as “not quantifiable.”
Appellant ultimately pleaded guilty to the following offenses: conspiring
with A1C WM to obstruct justice; obstructing justice by removing pieces of his
truck from the scene of the accident and discarding them; and obstructing jus-
tice by making false statements to law enforcement. Appellant pleaded not
guilty but was found guilty of the following offenses: wrongfully leaving the
scene of an accident without providing assistance to FM; physically controlling
his truck while drunk and causing physical injury to FM; physically controlling
his girlfriend’s vehicle while drunk; and involuntary manslaughter by striking
FM with a vehicle in a culpably negligent manner.
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United States v. Alton, No. ACM 40215
II. DISCUSSION
A. Jurisdiction
1. Additional Background
During the initial session of Appellant’s court-martial on 6 June 2021, the
military judge noted the charge sheet indicated Appellant’s term of service had
been due to expire on 26 November 2018. When the military judge asked trial
counsel if Appellant was still on active duty, trial counsel responded that Ap-
pellant “ha[d] been extended through extensions and orders and his service,”
and had been continued on active duty through administrative hold. The mili-
tary judge asked the Defense if there were “any concerns with [Appellant’s]
service at this point in time?” Trial defense counsel responded, “No, Your
Honor.” Appellant did not challenge the court-martial’s jurisdiction over him
during the trial or in his post-trial submissions to the convening authority.
On appeal, Appellant does challenge the court-martial’s jurisdiction over
him. Appellant moved to attach several documents to the record related to the
asserted absence of jurisdiction, including a declaration by Appellant; a copy
of a Department of Defense Form 214 (DD Form 214)2 indicating Appellant
had a separation date of 3 March 2020; a series of email communications be-
tween Appellant’s defense counsel, his first sergeant, the Creech AFB office of
the staff judge advocate (legal office), finance personnel, and others regarding
Appellant’s pay situation; and a printout of Appellant’s “W-2 [Tax] Infor-
mation” for tax year 2021. Over the Government’s objection, this court granted
the motion to attach while “specifically defer[ring] consideration of the applica-
bility of United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020),” until the comple-
tion of our review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. The Govern-
ment then moved to attach a declaration from Captain MT, the Chief of Mili-
tary Justice at Creech AFB, with 13 attachments, which this court also
granted.
Collectively, the matters attached by the parties indicate the following: on
the date of Appellant’s offenses, 3 May 2019, Appellant had already exceeded
his initial six-year term of service and for unrelated (not misconduct-related)
reasons had been extended until late November 2019. After the Air Force ob-
tained jurisdiction over Appellant’s offenses from civilian authorities in August
2019, Appellant was informed by his leadership he would be continued on ad-
ministrative hold and not allowed to separate during the investigation. When
Appellant received no official notification of his extension before his previously
scheduled separation date arrived, he notified the Air Force Personnel Center
2Department of Defense Form 214, Certificate of Release or Discharge from Active Duty
(Aug. 2009).
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United States v. Alton, No. ACM 40215
of his intention to separate. He received, completed, and submitted a “DD[ ]214
worksheet,” and subsequently received a DD Form 214 indicating a separation
date of 3 March 2020.
Meanwhile, on 21 June 2019 the legal office had submitted a request to the
local force support squadron to administratively hold Appellant on active duty
for 180 days. Between 21 June 2019 and 15 June 2021, the legal office submit-
ted a total of 11 requests to Air Force military personnel offices, often overlap-
ping, to extend Appellant on active duty for 90 or 180 days at a time. Through-
out this time, Appellant continued to report for duty and did not complete all
applicable out-processing requirements at the relevant offices on Creech AFB.
During this period, Appellant experienced several interruptions in receiv-
ing his Air Force pay. On some occasions he would receive no payment during
a particular pay period. Appellant’s trial defense counsel and defense parale-
gal, his first sergeant, legal office personnel, and others repeatedly communi-
cated about the interruptions in Appellant’s pay; there was general agreement
among these individuals that Appellant should be receiving pay. In some cases,
Appellant was paid with a physical check issued by finance personnel.
2. Law
We review questions of court-martial jurisdiction de novo. United States v.
Hale, 78 M.J. 268, 270 (C.A.A.F. 2019) (citing EV v. United States, 75 M.J. 331,
333 (C.A.A.F. 2016)). Challenges to jurisdiction not raised at trial are not
waived and may be raised for the first time on appeal. See Rule for Courts-
Martial (R.C.M.) 907(b)(1); United States v. Reid, 46 M.J. 236, 240 (C.A.A.F.
1997).
“Generally, there are three prerequisites that must be met for courts-mar-
tial jurisdiction to vest: (1) jurisdiction over the offense, (2) jurisdiction over
the accused, and (3) a properly convened and composed court-martial.” United
States v. Ali, 71 M.J. 256, 261 (C.A.A.F. 2012) (citing Rule for Courts-Martial
(R.C.M.) 201(b); United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)).
Jurisdiction over an accused is lost upon discharge from the service, but “the
UCMJ does not state when a servicemember’s discharge from the armed forces
becomes effective for jurisdictional purposes.” United States v. Christensen, 78
M.J. 1, 4 (C.A.A.F. 2018). The United States Court of Appeals for the Armed
Forces (CAAF) “has identified three criteria to consider when determining
whether a servicemember’s discharge has been finalized for jurisdictional pur-
poses: (1) the delivery of a discharge certificate (a DD Form 214); (2) a ‘final
accounting of pay’; and (3) the completion of the ‘clearing’ process that is re-
quired under service regulations.” Id. (quoting United States v. Hart, 66 M.J.
273, 276–79 (C.A.A.F. 2008)). However, this guidance is not binding when it
goes “against reason or policy.” Id. at 5. (quoting United States v. Nettles, 74
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United States v. Alton, No. ACM 40215
M.J. 289, 291 (C.A.A.F. 2015)). “[I]f one or more of these criteria have not been
fully met, then the military trial judge must consider the totality of the circum-
stances in making a jurisdictional determination.” Id. at 5 n.6 (citing Nettles,
74 M.J. at 291).
3. Analysis
Appellant contends the court-martial lacked in personam jurisdiction over
him due to the Government’s failure to properly retain him on active duty after
the expiration of his term of service. The Government responds that in light of
applicable CAAF precedent, Appellant was never finally discharged from the
Air Force and therefore was subject to the court-martial’s jurisdiction. How-
ever, as an initial matter, the Government also contends the CAAF’s decision
in Jessie precludes our consideration of the matters Appellant moved to attach
on appeal and relies on for his argument. Accordingly, we address this question
first.
a. Application of United States v. Jessie
In Jessie, the CAAF explained that, in general, the Courts of Criminal Ap-
peals (CCAs) “may not consider anything outside of the ‘entire record’ when
reviewing a sentence under Article 66(c), UCMJ[, 10 U.S.C. § 866(c)].” 79 M.J.
at 441 (citation omitted). The CAAF defined the “entire record” to include the
“record of trial,” “matters attached to the record” pursuant to the Rules for
Courts-Martial (formerly known as “allied papers”), and “briefs and arguments
that government and defense counsel (and the appellant personally) might pre-
sent regarding matters in the record of trial and ‘allied papers.’” Id. at 440–41
(citations omitted). However, the CAAF identified two exceptions to this gen-
eral rule. First, the CAAF acknowledged certain precedents had “allowed the
CCAs to supplement the record . . . when necessary for resolving claims of in-
effective assistance of trial defense counsel and a wide variety of other issues
when those claims and issues are raised by the record but are not fully resolv-
able by the materials in the record.” Id. at 442 (citations omitted). Second,
other CAAF precedents have “allowed appellants to raise and present evidence
of claims of cruel and unusual punishment and violations of Article 55, UCMJ,
[10 U.S.C. § 855, or the Eighth Amendment3,] even though there was nothing
in the record regarding those claims.” Id. at 444 (citations omitted).
Appellant’s argument that the court-martial lacked jurisdiction over him
implicates Jessie because it relies on matters outside the “entire record” as de-
fined by the CAAF. The CAAF has yet to interpret the application to Jessie in
a situation such as this. However, in two recent opinions addressing analogous
situations implicating Jessie this court presumed for purposes of analysis that
3 U.S. CONST. amend. VIII.
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United States v. Alton, No. ACM 40215
we could consider the material offered by the parties on appeal. See United
States v. Rodriguez, No. ACM 40218, 2023 CCA LEXIS 125, at *11 (A.F. Ct.
Crim. App. 9 Mar. 2023) (unpub. op.) (addressing alleged disqualification of
military judge); United States v. Brissa, No. ACM 40206, 2023 CCA LEXIS 97,
at *10 (A.F. Ct. Crim. App. 27 Feb. 2023) (unpub. op.) (addressing allegedly
unqualified assistant trial counsel). In those cases we found it appropriate to
consider the additional matter because, inter alia: statements by the military
judge and counsel arguably “raised” the issue of their ability to serve in their
respective roles; the raised issues were significant to the integrity of the mili-
tary justice system, inclining the court to err on the side of ensuring fair pro-
ceedings; and our consideration of the matters did not unfairly prejudice the
Government because we found the appellants were not entitled to relief on the
merits of the issues raised. We find similar considerations weigh in favor of
considering the matters presented by the parties in the instant case. Moreover,
we note the CAAF recently took a similar approach in United States v. Be-
hunin, albeit without explicitly referring to Jessie, when it declined to decide
the second of two granted issues, “Whether extra-record results of other courts-
martial that were not part of the record of trial before Appellant’s case was
docketed at the CCA may be considered during its Article 66, UCMJ, review.”
___ M.J. ___, No. 22-0276, 2023 CAAF LEXIS 163, at *6 (C.A.A.F. 21 Mar.
2023). The CAAF explained it could “dispositively decide the first [granted]
issue by simply assuming without deciding that the CCA properly considered
[the] entry of judgment” from a separate court-martial. Id.Accordingly, we presume for purposes of our analysis that we may consider
the matters attached to the record by the parties on appeal.
b. Personal Jurisdiction
Turning to the issue Appellant has raised, we conclude Appellant was not
effectively discharged from the Air Force for purposes of court-martial jurisdic-
tion. Beginning with the three criteria the CAAF identified for analyzing ques-
tions of jurisdiction, we acknowledge Appellant’s receipt of an apparently com-
plete DD Form 214 weighs in his favor. However, the totality of the circum-
stances indicate Appellant did not receive a final accounting of pay. Although
Appellant sometimes experienced significant disruptions in receiving his pay,
at other times he received his pay as scheduled. Moreover, there was general
agreement among those familiar with Appellant’s situation—including his own
defense team—that Appellant should be receiving pay, and efforts were made
by his first sergeant, the legal office, and finance personnel to facilitate those
payments. Most tellingly, Appellant never completed out-processing from his
unit or Creech AFB. To the contrary, he continued to report for duty, to perform
duties as directed, and to receive and acknowledge annual performance re-
ports.
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United States v. Alton, No. ACM 40215
Because “one or more of these criteria have not been fully met,” we “con-
sider the totality of the circumstances in making a jurisdictional determina-
tion.” Christensen, 78 M.J. at 5 n.6 (citation omitted). We find the totality of
the circumstances indicate Appellant was not fully discharged from the Air
Force. Appellant evidently believed he was still in the Air Force. His defense
counsel, both by advocating for his receipt of pay and by telling the military
judge there were “no concerns” with Appellant’s continued service beyond the
expiration of his original term of service, indicated they believed Appellant was
still in the Air Force. The Prosecution and Appellant’s command evidently be-
lieved he was still in the Air Force. Notwithstanding the apparent inefficien-
cies in the Air Force personnel and military finance systems, or Appellant’s
ability to obtain a DD Form 214, this is not a situation where reason or policy
dictates a conclusion that Appellant had been discharged for purposes of juris-
diction. Cf. Christensen, 78 M.J. at 5 (finding the military did not retain juris-
diction despite no final accounting of pay where, inter alia, appellant’s “com-
mand treated [him] as a civilian” for months and “[a]ppellant held an objec-
tively reasonable belief that he was no longer in the Army”); Nettles, 74 M.J.
at 292 (finding no personal jurisdiction despite no physical delivery of DD Form
214 to reservist appellant where an applicable statute specified the separation
date).
B. Expert Testimony
1. Additional Background
At an Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing before the court
members arrived, the Defense orally moved to preclude the Government’s ex-
pert in forensic toxicology, Dr. CS, from testifying “with respect to retrograde
extrapolation or anterograde extrapolation” as to Appellant’s likely BAC at rel-
evant points in time on the morning of 3 May 2019. Civilian trial defense coun-
sel contended Dr. CS’s anticipated methods were “unreliable and not accepted
by the relevant scientific community.” He further contended the testimony
should also be excluded under Military Rule of Evidence (Mil. R. Evid.) 403 due
to “confusion to the members and misleading the members with respect to the
science, and the assumptions, and variables necessary for this expert to per-
form these calculations.” The Government opposed the motion.
The Defense called Dr. CS to testify for purposes of the motion. Dr. CS was
a forensic toxicologist with 35 years of experience in the field. He explained the
difference between retrograde extrapolation and anterograde extrapolation, as
applied in Appellant’s case. In short, retrograde extrapolation used Appellant’s
measured BAC of 0.029 at 1041 to calculate Appellant’s BAC at earlier points
in time, based on certain other data including Appellant’s size, sex, age, infor-
mation regarding his prior alcohol consumption, and certain assumptions ac-
cepted within the scientific community as to how quickly a human body
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United States v. Alton, No. ACM 40215
removes alcohol from the bloodstream. Anterograde extrapolation used infor-
mation regarding how much alcohol Appellant was known to have consumed
over a period of time, coupled with information regarding Appellant’s size, sex,
age, and scientifically based assumptions regarding how the human body dis-
tributes and metabolizes alcohol, to estimate Appellant’s BAC at points in time
after he finished his last drink at the bar around 0411. In other words, Dr. CS’s
retrograde extrapolation was a backward-looking analysis based on a known
BAC measure; his anterograde extrapolation was a forward-looking analysis
based on information regarding how much alcohol Appellant was known to
have consumed over a certain period of time.
Testifying for the defense motion, Dr. CS explained the data and methods
he used in both types of analyses. He explained his analyses resulted in differ-
ent ranges for Appellant’s BAC at 0415 and 0515 (points in time when Appel-
lant was driving his truck and later his girlfriend’s vehicle) depending on dif-
ferent variables he applied, derived from the information he was provided
about the case. For example, Dr. CS used two different estimated strengths for
the liquor shots Appellant consumed, which affected the anterograde extrapo-
lations.
Civilian trial defense counsel elicited that Dr. CS was aware a toxicologist
employed by the Las Vegas Metropolitan Police Department Toxicology Lab
was not willing to perform a retrograde extrapolation as to Appellant’s BAC at
0415, around the time when Appellant’s truck struck FM. Dr. CS believed this
was because the police toxicologist believed at 0415 Appellant would still have
been absorbing alcohol into his bloodstream from his most recent drinks at the
bar, meaning his BAC could have been rising even after the accident. Dr. CS
also acknowledged two authoritative references in the forensic science and tox-
icology communities which advised a retrograde extrapolation should not be
performed when the individual is still absorbing alcohol into their system.
However, Dr. CS testified that “many toxicologists” had taught that a retro-
grade extrapolation could still be performed when the individual was in the
absorption phase, “with appropriate precautions on the interpretation for use
on that data,” although he did not identify any specific source to support this
contention. Dr. CS further testified he had made retrograde calculations for
Appellant’s BAC at 0415 and would be able to testify regarding them if re-
quested to do so.4
Dr. CS also acknowledged his calculations relied on certain assumptions
based on average values for how rapidly humans metabolize alcohol and how
alcohol is distributed within the human body. Because Appellant’s specific
4Continued absorption of alcohol was evidently not a material concern with respect to
retrograde extrapolation of Appellant’s BAC at 0515.
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United States v. Alton, No. ACM 40215
rates of metabolism and distribution might vary somewhat from the averages,
the true BAC values in Appellant’s case could deviate somewhat as a result.
For this and other reasons, Dr. CS presented his extrapolations as ranges of
estimated values, rather than a single estimated figure.
On cross-examination by trial counsel, Dr. CS explained that some varia-
bility in test results is expected and taken into account in his extrapolations.
He further testified that Appellant’s case provided more evidence in the form
of known values, including a BAC measurement coupled with an exact timeline
of Appellant’s drinking behavior, than 99 percent of other cases he had evalu-
ated in over 30 years as a toxicologist. Dr. CS also testified that anterograde
extrapolation was a widely accepted technique in the scientific community, and
that he had all the data he needed to make valid anterograde extrapolations
in this case. Dr. CS further explained that he had calculated the anterograde
extrapolation for the 0415 collision without including the last two drinks Ap-
pellant consumed at the bar, because they would not have been fully absorbed
at the time Appellant’s truck struck FM. He further testified that retrograde
extrapolation was a technique generally accepted in court systems around the
world, and that performing retrograde extrapolation based on one BAC meas-
urement was a generally accepted practice. Dr. CS explained the fact that the
calculated values from the retrograde and anterograde extrapolations “over-
lap[ped] in a substantive way” reinforced his confidence that the calculations
were accurate.
After Dr. CS testified, the military judge received argument from counsel
on the motion. Civilian trial defense counsel did not contend that retrograde
and anterograde extrapolation in general were not accepted methodologies in
the scientific community. Instead, he focused on Dr. CS’s retrograde extrapo-
lation specifically as to the 0415 collision, contending that such an extrapola-
tion at a point when Appellant was still in the alcohol absorption phase was
“absurd” and not generally accepted in the scientific community. Civilian trial
defense counsel then argued that all of the retrograde and anterograde extrap-
olation testimony should be excluded because the various BAC estimates for
the two events, in light of the significant variables involved, made the testi-
mony “so unreliable, so confusing, and misleading that it should not be allowed
in based on [Mil. R. Evid.] 403.”
After an overnight break, the military judge issued an oral ruling on the
defense motion. The military judge reiterated relevant points from Dr. CS’s
testimony in her findings of fact. She then stated the applicable law, including
inter alia Mil. R. Evid. 702, United States v. Houser, 36 M.J. 392, 397 (C.M.A.
1993), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The military judge found “the science of retrograde and anterograde extrapo-
lation can be reliable in a given case.” With regard to the defense objection to
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United States v. Alton, No. ACM 40215
Dr. CS using retrograde extrapolation during the absorption phase, the mili-
tary judge found the expert was aware Appellant was in the absorption phase
at 0415 and accounted for it by not including the final two drinks Appellant
consumed in his anterograde extrapolation for 0415. The military judge further
found Dr. CS based his calculations on “sufficient facts and data in this case,”
including: when Appellant had his last drink; evidence of Appellant’s blood
samples; Appellant’s gender, age, and body size; the amount and type of alcohol
Appellant consumed; the time in which each drink was consumed; and Appel-
lant’s food intake. The military judge further found retrograde and antero-
grade extrapolation had been tested in the relevant scientific community—fo-
rensic toxicologists; there was a known error rate; and the techniques had been
peer reviewed and published. She further concluded the probative value of Dr.
CS’s testimony outweighed the dangers of unfair prejudice, confusion of the
issues, or misleading the members, and noted the Defense could cross-examine
Dr. CS to expose the limitations of his testimony which went to its weight ra-
ther than its admissibility. She concluded the objection was overruled and Dr.
CS could testify regarding both retrograde and anterograde extrapolation.5
The Government called Dr. CS to testify during findings. Without objection,
the military judge recognized him as an expert in forensic toxicology. Dr. CS
testified regarding his retrograde extrapolation of Appellant’s BAC at 0515,
and his anterograde extrapolation of Appellant’s BAC at both 0415 and 0515.
Significantly, Dr. CS did not present his retrograde extrapolation of Appel-
lant’s BAC at 0415, during the absorption phase, which was the primary focus
of civilian trial defense counsel’s questioning and argument during the motion
hearing.
2. Law
A military judge’s decision to admit or exclude expert testimony is re-
viewed for an abuse of discretion. United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010) (citation omitted). “A military judge abuses his discretion
when: (1) the findings of fact upon which he predicates his ruling are not sup-
ported by the evidence of record; (2) if incorrect legal principles were used; or
(3) if his application of the correct legal principles to the facts is clearly unrea-
sonable.” Id. (citation omitted). “For [a] ruling to be an abuse of discretion, it
must be ‘more than a mere difference of opinion’; rather, it must be ‘arbitrary,
fanciful, clearly unreasonable’ or ‘clearly erroneous.’” United States v. Collier,
5The military judge did grant a defense request to require Dr. CS to refrain from using
certain short-hand terminology to refer to certain sets of calculations with particular
parameters. The Defense had objected that these terms were unfairly prejudicial to
Appellant. The details of this minor limitation on Dr. CS’s testimony are not relevant
to our opinion.
12
United States v. Alton, No. ACM 40215
67 M.J. 347, 353 (C.A.A.F. 2009) (quoting United States v. McElhaney, 54 M.J.
120, 130 (C.A.A.F. 2000) (additional citations omitted)).
Mil. R. Evid. 702 governs the testimony of expert witnesses in a trial by
court-martial. The rule provides:
A witness who is qualified as an expert by knowledge, skill, ex-
perience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to under-
stand the evidence or to determine a fact in issue; [(b)] the testi-
mony is based on sufficient facts or data; [(c)] the testimony is
the product of reliable principles and methods; and (d) the expert
has reliably applied the principles and methods to the facts of
the case.
The CAAF has articulated six factors for military courts to analyze to de-
termine whether a proponent of expert testimony has met the Mil. R. Evid. 702
criteria:
(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) that the probative value of the expert’s testimony out-
weighs the other considerations outlined in [Mil. R. Evid.] 403.
United States v. Billings, 61 M.J. 163, 166 (C.A.A.F. 2005) (citing Houser, 36
M.J. at 397). Though Houser predates the leading United States Supreme
Court decisions in this area, Daubert and Kumho Tire Co. v. Carmichael, 526
U.S. 137 (1999), Houser is consistent with these decisions and continues to
guide the admission of expert testimony in courts-martial. Billings, 61 M.J. at
166 (citations omitted).
However, “while satisfying every Daubert or Houser factor is sufficient, it
is not necessary.” United States v. Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007).
The military judge’s inquiry is “flexible” and “tied to the facts of [the] particular
case.” Id. (citations omitted).
The military judge may exclude relevant evidence that is otherwise admis-
sible if its probative value is substantially outweighed by a countervailing con-
cern, including, inter alia, unfair prejudice, confusion of the issues, or mislead-
ing the members. Mil. R. Evid. 403. “A military judge enjoys ‘wide discretion’
in applying Mil. R. Evid. 403.” United States v. Harris, 46 M.J. 221, 225
(C.A.A.F. 1997) (citation omitted). “When a military judge conducts a proper
balancing test under Mil. R. Evid. 403, the ruling will not be overturned unless
there is a ‘clear abuse of discretion.’” United States v. Manns, 54 M.J. 164, 166
13
United States v. Alton, No. ACM 40215
(C.A.A.F. 2000) (quoting United States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F.
1998)).
3. Analysis
On appeal, Appellant’s argument is essentially the same as that made by
the Defense at trial. He does not contest that, as a general matter, retrograde
and anterograde extrapolation of BAC are valid techniques accepted in the rel-
evant scientific community. However, he contends the application of retro-
grade extrapolation to Appellant at 0415 on 3 May 2019, when Appellant was
still absorbing alcohol into his system, was contrary to the weight of the au-
thorities cited by civilian trial defense counsel and conceded by Dr. CS, and
further illustrated by the Las Vegas police forensic toxicologist’s unwillingness
to perform such a calculation. Appellant implies, but does not clearly explain,
why the probative value of the other three extrapolations—retrograde extrap-
olation as to 0515, and anterograde extrapolation as to 0415 and 0515—is sub-
stantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the members.
We do not find the military judge abused her discretion. Appellant does not
specifically challenge the military judge’s findings of fact, and we find her ma-
terial findings are supported by the evidence. Similarly, Appellant does not
contend the military judge applied incorrect legal principles, and we find she
cited the correct ones. Accordingly, the issue becomes whether the military
judge’s application of the law to the facts was arbitrary, fanciful, clearly un-
reasonable, or clearly erroneous. We find it was not.
The military judge could reasonably conclude Dr. CS’s testimony regarding
retrograde and anterograde extrapolations for both 0415 and 0515 satisfied the
criteria expressed in Mil. R. Evid. 702, Houser, and Daubert. At trial and on
appeal, the Defense has not presented a cogent argument as to why the retro-
grade extrapolation for 0515 or either of the anterograde extrapolations were
scientifically unreliable. The Defense has focused its attention on the retro-
grade extrapolation for 0415, mustering evidence that at least some forensic
toxicologists would consider such a calculation during the absorption phase in-
advisable. However, given Dr. CS’s expertise, his awareness of the uncertainty
created by Appellant’s continued absorption of alcohol after 0415, and the ap-
parent soundness of the science of retrograde extrapolation in general, the mil-
itary judge acted within her discretion to conclude the limitations on retro-
grade extrapolation were matters of weight rather than admissibility that
could be developed through cross-examination, as appropriate. Similarly, we
do not find the military judge abused her discretion by finding the probative
value of all four extrapolations was not substantially outweighed by counter-
vailing concerns under Mil. R. Evid. 403.
14
United States v. Alton, No. ACM 40215
Assuming for purposes of argument that the military judge did abuse her
discretion with respect to the 0415 retrograde extrapolation—the focus of the
Defense’s objection—we find the error was harmless. Although the military
judge ruled Dr. CS could offer such testimony, the Government—presumably
for tactical reasons—elected not to elicit that testimony from Dr. CS before the
court members. Accordingly, it had no effect on the findings of guilty and did
not materially prejudice Appellant’s substantial rights.
C. Legal and Factual Sufficiency
1. Law
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).
“[T]he [G]overnment is free to meet its burden of proof with circumstantial
evidence.” King, 78 M.J. at 221 (citations omitted).
15
United States v. Alton, No. ACM 40215
In order to convict Appellant of involuntary manslaughter by culpable neg-
ligence in violation of Article 119, UCMJ, the Government was required to
prove: (1) FM is dead; (2) FM’s death resulted from Appellant striking him with
a vehicle at or near Las Vegas on or about 3 May 2019; (3) the killing was
unlawful; and (4) Appellant’s act constituted culpable negligence. See 10 U.S.C.
§ 919(b); Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV,
¶ 57.b.(2). Culpable negligence “is a negligent act or omission accompanied by
a culpable disregard for the foreseeable consequences to others of that act or
omission.” MCM, pt. IV, ¶ 57.c.(2)(a)(i).
In order to convict Appellant of drunken operation of a vehicle in violation
of Article 113, UCMJ, the Government was required to prove: (1) at or near
Las Vegas on or about 3 May 2019, Appellant was in physical control of a ve-
hicle; (2) Appellant controlled the vehicle while drunk; and, with respect to
drunken operation of a vehicle causing injury, that Appellant thereby caused
the vehicle to injure FM. See 10 U.S.C. § 913(a)(2); MCM, pt. IV, ¶ 51.b.
“Drunk” means intoxication by alcohol “sufficient to impair the rational and
full exercise of the mental or physical faculties.” MCM, pt. IV, ¶ 51.c.(6).
In order to convict Appellant of wrongfully leaving the scene of an accident,
the Government was required to prove: (1) on or about 3 May 2019 at or near
Las Vegas, Appellant was the driver of a vehicle; (2) while Appellant was driv-
ing, the vehicle was involved in an accident that caused personal injury; (3)
Appellant knew the vehicle had been in an accident; (4) Appellant left the scene
of the accident without providing assistance to FM, who had been struck and
injured by the vehicle; and (5) Appellant’s leaving was wrongful. See 10 U.S.C.
§ 911(a); MCM, pt. IV, ¶ 48.b.(1).
2. Analysis
Appellant challenges the legal and factual sufficiency of his convictions for
each of the contested specifications: involuntary manslaughter; drunken oper-
ation of a vehicle resulting in injury (Appellant’s pickup truck) and not result-
ing in injury (Appellant’s girlfriend’s vehicle); and wrongfully leaving the scene
of an accident. We address the offenses in turn.
a. Involuntary Manslaughter
The Government introduced sufficient evidence for a rational factfinder to
find Appellant guilty of involuntary manslaughter beyond a reasonable doubt.
The evidence was overwhelming and essentially uncontested that FM was
dead and died as a result of being struck by the truck Appellant was driving.
Moreover, Appellant had no lawful cause to kill FM. Accordingly, Appellant’s
guilt hinged on whether he had been culpably negligent. A rational factfinder
could reasonably conclude that driving a truck while impaired by alcohol
demonstrated a culpable disregard for the foreseeable consequences to others,
16
United States v. Alton, No. ACM 40215
specifically, that the impaired driver might hit others on or near the road. Ac-
cordingly, Appellant’s conviction rested on the Government’s proof that Appel-
lant was impaired at the time he struck FM with his truck, as well as other
evidence Appellant was driving unsafely in a manner that created a foreseea-
ble risk to others.
The Government provided substantial evidence that Appellant was im-
paired by alcohol. The Government introduced video recordings and Appel-
lant’s receipts from the bar that showed he consumed approximately 72 ounces
of beer, four shots of liquor, and two mixed drinks between midnight and 0411
on 3 May 2019. Even if one considers that two of the drinks were not fully
absorbed into Appellant’s system when Appellant’s truck struck FM around
0415, Appellant nevertheless had consumed a significant quantity of alcohol.
The Government introduced expert testimony of Dr. CS, a forensic toxicologist
who estimated, based on the available data, that Appellant’s BAC at 0415 was
between 0.10 and 0.12 grams per 100 milliliters. Dr. CS additionally presented
evidence that individuals with a BAC in this range would experience, inter
alia, sensory-motor impairment, diminished attention and judgment, loss of
critical judgment, impairment of perception, and increased reaction times. The
circumstances of the accident provide additional, circumstantial evidence Ap-
pellant was impaired and driving unsafely. Appellant struck FM near the cen-
ter of an unobstructed crosswalk with clear fields of view. The Government
introduced expert testimony by an accident reconstructionist, GP, who conser-
vatively calculated that Appellant was traveling between 43.4 and 58 miles per
hour in a 35-mile-per-hour zone when the collision occurred, with an actual
speed likely “much higher” and “well in excess of 60 miles per hour” if GP had
“considered everything.” There was no evidence Appellant slowed or attempted
to stop before striking FM, suggesting Appellant either did not see FM or was
very slow to react. Although it was nighttime, three of the four street lamps at
the intersection were operational, and Appellant’s truck was equipped with
headlights. Based on the evidence presented, a rational factfinder could rea-
sonably conclude Appellant was impaired, significantly speeding, and inatten-
tive when he struck FM with his truck, and therefore culpably negligent.
Appellant asserts other evidence indicates he was not actually impaired.
For example, the bartender who served Appellant at the bar did not observe
him slurring his words, stumbling, or otherwise evidently impaired. The video
from the bar does not depict Appellant staggering or stumbling when he de-
parted. Once Appellant arrived at his house after the collision, he was able to
successfully back his truck into his driveway. Moreover, he was able to drive
his girlfriend’s vehicle some distance into the desert and back without appar-
ent further incident. However, the military judge could nevertheless find this
evidence did not substantially undermine the evidence of impairment de-
scribed above.
17
United States v. Alton, No. ACM 40215
Appellant also attacks the credibility of the Government expert witnesses.
He notes Dr. SC, the forensic pathologist, changed his opinion between his in-
terview by the defense team, when he stated he could not determine on which
side of the body FM was hit, and his testimony, when he stated he believed FM
was struck on the left side of his body. Appellant contends this shows Dr. SC’s
testimony was unreliable because he changed his purported opinion to align
more closely with the Government’s theory of which direction FM was walking
in. However, a rational factfinder could reasonably find FM’s direction of travel
was of little significance. Whether he was walking from east to west or west to
east, the evidence showed he was hit near the middle of the crosswalk. Either
way, a rational factfinder could conclude FM was walking in the crosswalk for
several seconds and should have been visible to Appellant before he was hit.
Appellant attacks the methodology and testimony of GP, the accident re-
constructionist. For example, Appellant notes GP did not visit the scene of the
accident at the same time of day that the accident occurred in order to assess
the lighting conditions, did not inspect Appellant’s truck, and did not ade-
quately explain his belief that unmeasured factors led him to believe Appel-
lant’s actual speed was higher than the range his model estimated. Neverthe-
less, the military judge could reasonably conclude these points did not under-
mine the essential thrust of GP’s testimony, including that Appellant was
speeding and should have been able to see FM in the crosswalk.
Appellant also attacks the credibility of Dr. CS, the forensic toxicologist,
referring back to his arguments regarding issue (2), the military judge’s deci-
sion to permit Dr. CS’s BAC calculations. Again, a rational factfinder could
nevertheless find Dr. CS’s testimony reliable and persuasive. In addition, as
noted above, when Dr. CS testified before the court members he did not provide
a retrograde BAC calculation with regard to the 0415 collision, which was the
focus of much of the contention during the Daubert hearing.
A rational factfinder could also reasonably discount Appellant’s remaining
arguments with respect to involuntary manslaughter, which we do not find
necessary to elaborate here. Drawing every reasonable inference from the evi-
dence of record in favor of the Government, we conclude the evidence was le-
gally sufficient to support Appellant’s conviction for involuntary manslaugh-
ter. Additionally, having weighed the evidence in the record of trial, and having
made allowances for the fact that the court members personally observed the
witnesses and we did not, we also find the evidence factually sufficient.
b. Drunken Operation of a Vehicle
Appellant was convicted of two specifications of drunken operation of a ve-
hicle. One specification alleged Appellant controlled his pickup truck while
drunk and thereby caused injury to FM. The discussion above regarding the
18
United States v. Alton, No. ACM 40215
sufficiency of the evidence that Appellant was impaired at the time he hit FM
generally applies to this specification as well. For similar reasons, a rational
factfinder could conclude Appellant controlled his truck while drunk—that is,
intoxicated by alcohol to a sufficient degree “to impair the rational and full
exercise of the mental or physical faculties.” MCM, pt. IV, ¶ 51.c.(6).
The evidence also supports finding Appellant guilty beyond reasonable
doubt of the second specification—that he controlled his girlfriend’s vehicle
while drunk. Dr. CS testified that, unlike the 0415 collision with FM, while
Appellant was driving the other vehicle at 0515 the final two drinks would
have been fully absorbed. After applying both retrograde and anterograde
analyses based on the available data, Dr. CS testified Appellant’s BAC when
he drove his girlfriend’s vehicle was between 0.11 and 0.14 grams per 100 mil-
liliters. Based on the evidence of the amount of alcohol Appellant consumed,
Dr. CS’s testimony regarding Appellant’s BAC, and Dr. CS’s testimony regard-
ing the effects of alcohol, a rational factfinder could reasonably conclude be-
yond a reasonable doubt Appellant was drunk when he drove the second vehi-
cle.
Accordingly, drawing every reasonable inference from the evidence of rec-
ord in favor of the Government, we conclude the evidence was legally sufficient
to support Appellant’s convictions for drunken operation of a vehicle. Having
weighed the evidence in the record of trial, and having made allowances for the
fact that the court members personally observed the witnesses and we did not,
we also find the evidence factually sufficient.
c. Wrongfully Leaving the Scene of an Accident
With regard to leaving the scene of an accident, there was little dispute
that Appellant operated a vehicle that was involved in an accident that injured
FM, and that Appellant left the scene without providing assistance to FM. Ap-
pellant’s departure from the scene was wrongful in the sense that he had no
legal justification or excuse for doing so. Accordingly, the focus of contention
for this offense was whether Appellant knew his truck had been in an accident
that caused personal injury.
A rational factfinder could find beyond a reasonable doubt Appellant did
know it. A1C WM testified that toward the end of the drive from the bar to
Appellant’s house, Appellant told A1C WM that Appellant might have hit “ei-
ther something or someone.” After trial counsel refreshed A1C WM’s recollec-
tion with his prior written statement, A1C WM specifically testified Appellant
had told A1C WM he “hit someone.” A1C WM further testified Appellant did
not stop and they continued to Appellant’s house. Appellant emphasizes A1C
WM’s initial uncertainty as to what Appellant had said, and that on cross-ex-
amination A1C WM stated he was still “not sure” if Appellant said he hit
19
United States v. Alton, No. ACM 40215
“somebody” or “something.” Nevertheless, a rational factfinder could credit
A1C WM’s refreshed testimony that Appellant had said he hit someone. More-
over, such a factfinder could conclude Appellant’s subsequent actions provided
circumstantial evidence of his consciousness of guilt. That Appellant immedi-
ately attempted to clean the blood from his vehicle and returned to the scene
in order to conceal evidence could suggest Appellant believed he hit a person
rather than an animal.
Drawing every reasonable inference in favor of the Government, we find
the evidence is legally sufficient to support Appellant’s conviction for wrong-
fully leaving the scene of an accident. In addition, we find the evidence factu-
ally sufficient.
D. Sentence Severity
1. Law
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(d), UCMJ, 10 U.S.C. § 866(d). “We assess sentence
appropriateness by considering the particular appellant, the nature and seri-
ousness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct.
Crim. App. 2015) (en banc) (per curiam) (alteration in original) (citing United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)).
Our sentence appropriateness review includes “considerations of uniformity
and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J.
294, 296 (C.A.A.F. 2001) (citations omitted). Although we have “broad discre-
tionary power to review sentence appropriateness,” United States v. Kelly, 77
M.J. 404, 405 (C.A.A.F. 2018), we have no authority to grant mercy. United
States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
CCAs are “not required . . . to engage in sentence comparison with specific
[other] cases ‘except in those rare instances in which sentence appropriateness
can be fairly determined only by reference to disparate sentences adjudged in
closely related cases.’” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)
(quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). Cases are
“closely related” when, for example, they involve “coactors involved in a com-
mon crime, servicemembers involved in a common or parallel scheme, or some
other direct nexus between the servicemembers whose sentences are sought to
be compared.” Id. “[A]n appellant bears the burden of demonstrating that any
cited cases are ‘closely related’ to his or her case and that the sentences are
‘highly disparate.’ If the appellant meets that burden . . . then the Government
20
United States v. Alton, No. ACM 40215
must show that there is a rational basis for the disparity.” Id.; see also United
States v. Durant, 55 M.J. 258, 261–63 (C.A.A.F. 2001) (holding a highly dispar-
ate sentence in a closely related case did not warrant sentence relief where a
rational basis for the difference existed). Although not required to do so, a CCA
may compare an appellant’s case to other non-“closely related” cases in order
to assess the propriety of the sentence. United States v. Wacha, 55 M.J. 266,
267 (C.A.A.F. 2001). However, unless the cases are closely related, “[t]he ap-
propriateness of a sentence generally should be determined without reference
or comparison to sentences in other cases.” United States v. LeBlanc, 74 M.J.
650, 659 (A.F. Ct. Crim. App. 2015) (en banc) (citing Ballard, 20 M.J. at 283).
2. Analysis
Appellant contends his sentence to confinement for 14 years is inappropri-
ately severe. He notes the military judge sentenced him to the maximum im-
posable term of confinement for four of the seven specifications of which he was
convicted. Appellant contends he demonstrated sincere remorse as “evidenced
by his plea of guilty to obstructing justice and conspiring to do the same,” by
his expressions of regret and sorrow in his unsworn statements to the court-
martial, and by character statements presented at sentencing. He further ar-
gues his strong duty performance including three deployments warrants con-
sideration. Additionally, Appellant compares his sentence to the lower sen-
tences received by several other servicemembers convicted of vehicular invol-
untary manslaughter, as reported in opinions issued by this court and other
CCAs. He requests a reduction in his term of confinement to a total of eight-
and-a-half years.
With respect to comparing Appellant’s sentence to those adjudged in other
courts-martial, Appellant has not attempted to demonstrate any of those cases
have a “direct nexus” or are in any other way closely related to his own, and
we conclude that they are not related. See Lacy, 50 M.J. at 288. We find, more-
over, Appellant has not demonstrated that an exception to the general rule
against directly comparing sentences in non-closely related cases should apply
in this case. See LeBlanc, 74 M.J. at 659. Accordingly, we decline to engage in
such comparisons here.6
6The Government has not objected to our consideration of the cases Appellant cites on
the grounds that they are outside the record of trial. See Jessie, 79 M.J. at 441–46
(C.A.A.F. 2020). In light of our conclusion that sentence comparison is not appropriate
in this case, we decline to further address the application of Jessie to this issue. Cf.
Behunin, 2023 CAAF LEXIS at *6 (assuming without deciding the CCA properly con-
sidered the entry of judgment from a separate court-martial); United States v. Stanton,
80 M.J. 415, 417 n.2 (C.A.A.F. 2021) (considering documents not included in or
21
United States v. Alton, No. ACM 40215
With regard to the terms of confinement the military judge imposed for the
various specifications, Appellant is correct that the military judge imposed the
maximum term for several of them. Specifically, the military judge imposed
ten years of confinement for involuntary manslaughter (the maximum); 18
months for drunken operation of a vehicle resulting in injury (the maximum,
to run concurrently with the ten-year involuntary manslaughter term); six
months for drunken operation of a vehicle not resulting in injury or property
damage (the maximum); six months for leaving the scene of a vehicle accident
(the maximum); and concurrent three-year terms for the conspiracy to obstruct
justice specification and two obstruction of justice specifications. However, the
military judge could reasonably conclude each of these offenses was signifi-
cantly aggravated. Appellant’s decision to drive after consuming a significant
amount of alcohol over the course of more than four hours at a bar created the
very foreseeable risk that he was a danger to others on and near the road,
including pedestrians such as FM. Moreover, the evidence indicated Appellant
was not only impaired, but speeding and inattentive at the point he struck FM
in the middle of a crosswalk. Although Appellant expressed remorse at his
court-martial, his evident priority after the accident was to avoid responsibility
for his actions, including inter alia leaving the scene, conspiring with A1C WM
to conceal evidence—which involved driving another vehicle with a passenger
while still impaired, and making multiple false statements to the police. The
military judge could reasonably conclude any mitigating or extenuating cir-
cumstances paled in comparison to the aggravating circumstances.
Furthermore, Appellant’s assertion that “[a]fter merging certain offenses
for sentencing, [Appellant] faced sixteen years of total confinement” is not en-
tirely accurate. As a result of a defense motion regarding unreasonable multi-
plication of charges, the military judge ruled the involuntary manslaughter
and drunken driving causing injury specifications would be merged for pur-
poses of sentencing. See generally United States v. Campbell, 71 M.J. 19, 23
(C.A.A.F. 2012); United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001).
However, the military judge was not required to have the conspiracy specifica-
tion and two obstruction specifications run concurrently, and as a result Ap-
pellant’s total exposure to confinement when he was sentenced was 26 years.
Having given individualized consideration to Appellant, the nature and se-
riousness of the offenses, Appellant’s record of service, and all other matters
contained in the record of trial, we conclude Appellant’s sentence is not inap-
propriately severe.
attached to the record of trial “because neither party has objected to our consideration
of them”).
22
United States v. Alton, No. ACM 40215
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
23