United States v. McAlhaney

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39979 (rem)
________________________
UNITED STATES
Appellee
v.
William C. MCALHANEY
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
On Remand from
the United States Court of Appeals for the Armed Forces
Decided 27 June 2023
________________________
Military Judge: Elizabeth M. Hernandez.
Sentence: Sentence adjudged on 7 July 2020 by GCM convened at Shep-
pard Air Force Base, Texas. Sentence entered by military judge on 29
July 2020: Bad-conduct discharge, confinement for 3 months, and a rep-
rimand.
For Appellant: Major Benjamin H. DeYoung, USAF; Major Eshawn R.
Rawley, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major John
P. Patera, USAF; Major Jay S. Peer, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, ANNEXSTAD, and GOODWIN, Appellate Military
Judges.
Judge GOODWIN delivered the opinion of the court, in which Chief
Judge JOHNSON joined. Judge ANNEXSTAD filed a separate dissent-
ing opinion.
________________________
This is an unpublished opinion and, as such, does not serve as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. McAlhaney, No. ACM 39979 (rem)
GOODWIN, Judge:
This case is before us a second time. A general court-martial composed of a
military judge alone found Appellant guilty, in accordance with his pleas and
pursuant to a plea agreement, of one charge under Article 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 934,1 and one specification of wrongful
receipt of child pornography, and one specification of wrongful possession and
viewing of child pornography. The military judge sentenced Appellant to a bad-
conduct discharge, confinement for three months,2 and a reprimand. The con-
vening authority took no action on the findings or sentence but provided lan-
guage for the adjudged reprimand. The military judge signed an entry of judg-
ment reflecting the adjudged findings and sentence, including the reprimand
language.
Appellant raised three issues during his original appeal: (1) whether the
convening authority failed to consider Appellant’s clemency submission in vio-
lation of Rules for Courts-Martial (R.C.M.) 1106 and 1109; (2) whether the
Government’s failure to serve Appellant with a complete copy of his record of
trial (ROT) violates Article 54, UCMJ, 10 U.S.C. § 854, R.C.M. 1112(e), and
due process; and (3) whether an improper reprimand in Appellant’s case made
his sentence inappropriately severe. This court found no error materially prej-
udicial to Appellant’s substantial rights and affirmed the findings and sen-
tence in Appellant’s case.
Appellant petitioned the United States Court of Appeals for the Armed
Forces (CAAF) to review his case, and the CAAF granted that petition on the
following issue:
Did the lower court err by applying plain error review in consid-
ering a question of sentence appropriateness, to wit: whether the
wording of the reprimand rendered appellant’s sentence inap-
propriately severe?
United States v. McAlhaney, 83 M.J. 164, 166 (C.A.A.F. 2023).
The CAAF affirmed our decision as to findings but reversed it as to sen-
tence. Id. at 168. The CAAF found as follows:
[The Air Force Court of Criminal Appeals] erred to the extent it
separated Appellant’s allegation of error in the reprimand into
two issues. Because a reprimand is a component of an adjudged
1 All references to the UCMJ and Rules for Courts-Martial (R.C.M.) are to the Manual
for Courts-Martial, United States (2019 ed.).
2 The military judge sentenced Appellant to three months of confinement for each spec-
ification, running concurrently.
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United States v. McAlhaney, No. ACM 39979 (rem)
sentence, Appellant’s challenge to the reprimand, both generally
and as written, implicated sentence appropriateness which is re-
viewed de novo. The lower court failed to analyze whether the
reprimand was appropriate, as written, under the proper de
novo standard of review. To ensure that Appellant was not prej-
udiced by the lower court’s seemingly erroneous view of the law,
we set aside the lower court’s opinion and remand the case for a
new Article 66(d), UCMJ, determination using the correct de
novo standard of review. We express no view as to how the new
review should be resolved. That is a matter committed to the
discretion of the lower court.
Id. (internal citation omitted).
Consistent with the CAAF’s mandate, we review the adjudged reprimand
anew pursuant to Article 66(d), UCMJ. After his case was again docketed with
this court, Appellant identified one assignment of error: whether the written
reprimand is inaccurate and inflammatory and thus lacking legal and factual
sufficiency and rendering Appellant’s sentence inappropriately severe. We con-
clude it was not.
I. BACKGROUND
In approximately June 2018 and prior to entering active duty, Appellant
began communicating with 15-year-old NC using the Snapchat and iMessage
communication applications.3 Appellant asked NC how old she was, and she
responded she was 15 years old. By the end of June 2018, the conversations
between Appellant and NC included sexually explicit topics. According to Ap-
pellant’s stipulation of fact, “[d]uring numerous of these occasions [of sexually
explicit communications], [Appellant] was the first to make comments and
questions of a sexual nature.” Also by the end of June 2018, Appellant had
begun asking NC to send him nude photographs of herself.
Appellant entered active duty on 13 November 2018. Appellant and NC
stopped communicating while Appellant was in basic military training (BMT)
but resumed after he arrived at Sheppard Air Force Base (AFB), Texas, for
technical school. Thereafter, Appellant began again asking NC for nude photo-
graphs of herself. In January 2019, NC told Appellant about a short video of
herself having sexual intercourse with a 17-year-old male that Appellant did
3 Snapchat and iMessage are social media applications.
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United States v. McAlhaney, No. ACM 39979 (rem)
not know. Appellant offered NC $30.00 for this video. NC agreed and sent the
video to Appellant, who received and viewed the video.4
After Appellant received and viewed the video, NC asked him when he was
going to pay her the $30.00 and reminded him that he had owed her the money
“for a while [sic].” Thereafter, Appellant asked NC whether he could “see more
of those vids or pics” after he sent her the money. NC questioned Appellant
why she would send more pictures or videos, given that Appellant had not yet
paid her. Thereafter, Appellant paid NC the $30.00 by PayPal. In the commu-
nications between Appellant and NC, both Appellant and NC discuss things of
a sexual nature. It is apparent from context that NC is not naïve about sexual
topics. However, Appellant is more frequently the party introducing sexual
topics or asking sexual questions.
Appellant also communicated with ST before leaving for BMT. ST told Ap-
pellant that she was 15 years old. On 14 January 2019, while Appellant was
on active duty, he told ST not to “make him come grab that cute a[**] and
cuddle with [her].” That same day, Appellant told ST that he was “hard” and
that he wanted to “see how well she gave head.” Appellant also discussed fel-
latio, cunnilingus, and digital penetration with ST and how he wanted to see
her after she had orgasmed. Appellant asked ST “whether she enjoyed mastur-
bating with a hairbrush,” offered to buy her a sex toy, and asked if she would
let him see her using the sex toy. He called her “[his] baby girl.” He told her
that she was his, to which she responded that she was not allowed to date. He
discussed ejaculating on her face. Near the end of the exchange on 14 January
2019, ST told Appellant, “You know you calling me yours is kinda hot.”
On 15 January 2019, Appellant reinitiated the topic of ST being “his” and
whether ST found that “hot.” Appellant also asked ST about her underwear
and asked to see her “a[**]” and “p[***]y.” On 17 January 2019, Appellant and
ST were discussing her opinion that she was overweight. During the discus-
sion, Appellant told ST that she is not overweight and asked whether he
“need[s] to kiss her whole body.” Between 14 and 17 January 2019, Appellant’s
communications to ST were far more sexual in nature than her communica-
tions were to him.
On or about 20 January 2019, Appellant asked ST for a nude photograph
of her masturbating. Thereafter, ST sent Appellant a photograph of her geni-
tals with a wooden hairbrush penetrating her vulva.5
4 NC was 16 years old when she sent Appellant the video.
5 ST was 16 years old when she sent Appellant the photograph.
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United States v. McAlhaney, No. ACM 39979 (rem)
After the military judge sentenced Appellant to a reprimand, the convening
authority issued the specific language of the reprimand, and the military judge
entered it as follows:
YOU ARE HEREBY REPRIMANDED! Your decision to wrong-
fully view and possess child pornography promoted the abuse
and harm of children, and furthered the criminal enterprise of
human sex trafficking, which is directly linked to child pornog-
raphy. Your conduct has no place within the Armed Force or so-
ciety at large. Be warned, further misconduct will result in ad-
ditional criminal liability.
II. DISCUSSION
A. Legal and Factual Sufficiency of Appellant’s Reprimand
In his assignment of error, Appellant claims the convening authority’s rep-
rimand is “inaccurate and inflammatory and thus lacks legal and factual suf-
ficiency and renders Appellant’s sentence inappropriately severe.” We disagree
with Appellant’s argument and accordingly deny relief.
1. Law
We must review the wording of Appellant’s adjudged reprimand de novo to
determine whether it was inappropriate. McAlhaney, 83 M.J. at 167 (citing
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006)). We “may affirm only such
findings of guilty, and the sentence or such part or amount of the sentence, as
[we find] correct in law and fact and determine[ ], on the basis of the entire
record, should be approved.” Article 66(d)(1), UCMJ. “We assess sentence ap-
propriateness by considering the particular appellant, the nature and serious-
ness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F.
Ct. Crim. App. 2009) (citations omitted). Although we have broad discretion in
determining whether a particular sentence is appropriate, we are not author-
ized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138,
146 (C.A.A.F. 2010).
A reprimand is a punitive censure. R.C.M. 1003(b)(1), Discus-
sion. In practice, it is a frank and common-sense expression of
formal disapproval by the convening authority to the accused re-
garding the offenses for which the individual was sentenced. The
reprimand may be based on the offenses, the evidence and testi-
mony admitted at trial, and other matters that are properly be-
fore the convening authority such as a clemency request or a vic-
tim impact statement. Our military justice system grants the
convening authority the discretion to choose the words of the
5
United States v. McAlhaney, No. ACM 39979 (rem)
reprimand. With few exceptions, in the Air Force, convening au-
thorities are senior officers with a responsibility to preserve good
order and discipline for the Airmen in their command.
United States v. Wolcott, No. ACM 39639, 2020 CCA LEXIS 234, at *16 (A.F.
Ct. Crim. App 15 Jul. 2020) (unpub. op.).
2. Analysis
Appellant claims his reprimand is overly severe because it is legally and
factually insufficient because no evidence was admitted supporting the section
of the reprimand stating Appellant’s offenses (1) “promoted the abuse and
harm of children,” or (2) “furthered the criminal enterprise of human sex traf-
ficking.”
In his brief, Appellant notes the following:
Prior to trial, the [G]overnment disclosed that neither NC nor
ST “appear to have been negatively affected” by Appellant’s con-
duct, and that both “appear to have been willing participants” in
sharing the video and image with Appellant. [Defense Exhibit
M]. Neither NC nor ST personally appeared at Appellant’s court-
martial. ST provided a written unsworn statement [ ] which
seemed to contradict the [G]overnment’s pretrial disclosure, but
which trial counsel did not reference in sentencing argument.
Although trial counsel sought a bad conduct discharge, sixteen
months of confinement, and total forfeitures of pay and allow-
ances for Appellant’s offenses, she nevertheless acknowledged,
“We are aware that the accused is not a terrible person,” “[W]e
understand the accused is considered to be a good person,” and
that he was considered “hardworking and dependable.”
(Citations omitted).
We do not consider sentencing arguments in our evaluation of this issue.
However, we recognize that Defense Exhibit M, which is in evidence, contains
trial counsel’s impression that neither NC nor ST appeared to him as having
“been negatively affected” and having apparently been “willing participants.”
However, as Appellant correctly notes, ST submitted an impact statement that
rebuts this impression. In her impact statement, ST discusses her feelings at
the time of sentencing that Appellant had coerced her into doing “obscene and
illegal things.” ST further discusses the depression, suicidal ideation, poor self-
image, and negative impact on her relationship with her mother that she views
as consequences of Appellant’s actions.
While we recognize that Appellant may have viewed and possessed fewer
images than offenders in many other child pornography cases, the evidence at
6
United States v. McAlhaney, No. ACM 39979 (rem)
trial showed Appellant’s receipt, possession, and viewing of child pornography
were not a passive venture. Appellant did not simply engage in the viewing,
possessing, and receiving of existing child pornography images. Rather, Appel-
lant initiated the exchange of a child pornography video for money, and he
convinced ST to create an image of child pornography. In both cases, and espe-
cially in ST’s case, Appellant was the person initiating and encouraging dis-
cussion of sexual topics.
The military judge determined a reprimand was an appropriate punish-
ment for the offenses. She made no clemency recommendation on the record to
the convening authority. We presume the military judge was aware of R.C.M.
1003(b)(1) which required a reprimand to be issued in writing by the convening
authority. United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citation
omitted) (stating military judges are presumed to know the law and to follow
it absent clear evidence to the contrary). In our view, if the military judge did
not want to grant the convening authority the opportunity to punitively cen-
sure Appellant in writing, then she would not have adjudged a reprimand.
There is little question that the military judge adjudged a reprimand believing
it could serve a useful sentencing purpose.
It is important to recognize that de novo review of the reprimand does not
require us to ask ourselves whether we would have worded the reprimand the
same as the convening authority were we standing in her shoes.
A convening authority’s discretion to reprimand is not unfettered, however.
A convening authority cannot include language in a reprimand that directly
references an offense that has been dismissed or resulted in an acquittal. See,
e.g., United States v. Hawes, 51 M.J. 258, 261 (C.A.A.F. 1999) (striking refer-
ence to offense dismissed on appeal from adjudged reprimand). In this case,
however, we see no reference in the reprimand to any dismissed offense, or to
an offense for which Appellant was acquitted.
As noted above, Appellant first takes issue with the convening authority’s
statement that his offenses “promoted the abuse and harm of children.” Here,
Appellant convinced a 15-year-old girl, NC, to exchange for money a sexually
explicit video of herself and another individual, thereby arguably teaching or
reinforcing to her that there is a financial market for sex-related images of
herself. Granted, Appellant did not force NC to make the video; indeed, she
appears to have agreed to its creation. However, it was solely Appellant’s idea
for NC to exchange the video for profit.
Appellant also convinced another 15-year-old girl, ST, to create an image
of child pornography. Again, Appellant did not force ST to create this image.
He did, however, flirt with her, introduce communications about sexual topics,
expand those sexual topics over time, and ingratiate himself with her prior to
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United States v. McAlhaney, No. ACM 39979 (rem)
requesting and receiving the video. As discussed above, in the days leading up
to his successful request for the video, Appellant discussed cuddling, various
sex acts, her being “his,” and his wanting to “kiss her entire body” so she would
understand she was not overweight. Appellant was clearly the party chasing
sexual gratification. Consequently, we find the convening authority’s state-
ment that Appellant’s conduct “promoted the abuse and harm of children,” is
accurate under the circumstances.
Appellant also takes issue with the convening authority’s statement that
Appellant’s conduct “furthered the criminal enterprise of human sex traffick-
ing.” While this appears—as it did before—a much closer call, we are not con-
vinced that the statement is factually inaccurate such that it constitutes inap-
propriate punishment. In reaching this conclusion, we note that the convening
authority is provided with significant discretion to choose the wording for a
reprimand. This discretion is afforded to assist the convening authority in ful-
filling her responsibility to preserve good order and discipline for the Airmen
in her command. See Wolcott, unpub. op. at *16.
We also note that the convening authority did not reference a dismissed or
acquitted offense, nor did she accuse Appellant of having committed human
sex trafficking. Rather, she chastised him for committing conduct that “fur-
thered” that enterprise. Paying a teenager for a video of child pornography and
convincing a second teenager to create an image of child pornography furthers
the child pornography trade. The expansive federal definitions of “human sex
trafficking” incorporate a wide spectrum of sexual offenses that vary greatly in
terms of violence and severity, and can include the exchange of depictions of
minors engaged in sexual acts for money or other items of value.
For example, 18 U.S.C. § 1591(a)(1), Sex trafficking of children or by force,
fraud, or coercion, covers a broad spectrum. On the more severe end of the
spectrum, the statute prohibits this offense: obtaining or patronizing “a person
. . . knowing that means of force, threats of force, fraud, [or] coercion . . . will
be used to cause the person to engage in a commercial sex act.” On the less
severe end of the spectrum, 18 U.S.C. § 1591(a)(1) also makes illegal situations
where someone “knowingly in or affecting interstate . . . commerce, or within
the territorial jurisdiction of the United States, recruits, entices, . . . or solicits
by any means a person . . . knowing . . . that the person has not yet attained
the age of 18 years and will be caused to engage in a commercial sex act.” Sec-
tion 1591(e)(3) of Title 18 defines “commercial sex act” as “any sex act, on ac-
count of which anything of value is given to or received by any person.” Section
7102(12) of Title 22 defines “sex trafficking” as “the recruitment . . . patroniz-
ing, or soliciting of a person for the purpose of a commercial sex act.”
We fully recognize Appellant was convicted of the wrongful receipt, posses-
sion, and viewing of child pornography, and not “human sex trafficking” per se.
8
United States v. McAlhaney, No. ACM 39979 (rem)
However, his conduct in committing these offenses matches some of the con-
duct described in federal definitions of sex trafficking of children. Thus the
reprimand’s reference to furthering “sex trafficking” addressed Appellant’s
charged misconduct. While we might not have worded the reprimand the same
way as the convening authority were we in her shoes, that is not our task here.
In light of the definitions cited above, we remain unconvinced her reprimand
language is factually inaccurate such that it constitutes inappropriate punish-
ment.
In addition to the reprimand, Appellant’s adjudged sentence included three
months of confinement for each specification to run concurrently and a bad-
conduct discharge. The maximum punishment available under the plea agree-
ment was forfeitures of all pay and allowances, 16 months of confinement, and
a bad-conduct discharge, which the trial counsel suggested in sentencing argu-
ment. The military judge sentenced Appellant to less than the maximum al-
lowable sentence under his plea agreement.
We have given individualized consideration to Appellant, the nature and
seriousness of his offenses, his record of service, and all other matters con-
tained in the record of trial. We consider whether Appellant’s entire sentence
was appropriate “judged by ‘individualized consideration’ of [Appellant] ‘on the
basis of the nature and seriousness of the offense and the character of the of-
fender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting
United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A. 1959)). We find no
error materially prejudicing Appellant and conclude that the sentence is not
inappropriately severe.
III. CONCLUSION
The findings of guilty as to the Charge and its Specifications have been
previously affirmed. The sentence as entered is correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59 and 66(d), UCMJ, 10 U.S.C. §§ 859, 866(d). Accordingly, the sentence
is AFFIRMED.
ANNEXSTAD, Judge (Dissenting):
I must respectfully disagree with my esteemed colleagues. Upon taking a
fresh, independent look at the evidence, I find that the convening authority’s
reference in the reprimand to Appellant “further[ing] the criminal enterprise
of human sex trafficking” is not based on the offenses, nor is it supported by
the evidence, testimony at trial, or other matters properly before the convening
authority. Furthermore, it is misleading as to the nature of Appellant’s of-
fenses. Therefore, I would strike the above-quoted language from the
9
United States v. McAlhaney, No. ACM 39979 (rem)
reprimand and approve the rest of Appellant’s sentence as entered. See United
States v. Hawes, 51 M.J. 258, 261 (C.A.A.F. 1999) (striking the language from
reprimand that referenced an acquitted offense).
I agree that convening authorities have “significant discretion” to choose
the words of the reprimand. United States v. Wolcott, No. ACM 39639, 2020
CCA LEXIS 234, *21 (A.F. Ct. Crim. App. 15 Jul. 2020) (unpub. op.). However,
that discretion is not without limits. As this court has made clear, the language
in the reprimand should comport with “the offenses for which [an appellant]
was sentenced and the evidence” supporting these offenses, and should not,
under any circumstances, refer to dismissed, acquitted, or uncharged miscon-
duct. Id. at *18. Consequently, the reprimand must be rooted in the record, and
proportional to the offense.
In this case, Appellant pleaded guilty to, and was convicted of, one specifi-
cation of wrongfully receiving child pornography, and one specification of
wrongfully possessing and viewing child pornography. Therefore, the conven-
ing authority was free to comment on Appellant’s wrongful receipt, possession,
and viewing of child pornography. The convening authority exceeded her dis-
cretion here when she included language in the reprimand that Appellant “fur-
thered the criminal enterprise of human sex trafficking.” This language is in-
accurate, inflammatory, and misleading. First, it is inaccurate because Appel-
lant was not convicted of “human trafficking” or “sex trafficking,” nor is there
any evidence, not a single reference, in the record suggesting that Appellant
was engaged in a “criminal enterprise” or “trafficking” of any kind. Therefore,
the reprimand is not rooted in the record. Second, it is inflammatory and mis-
leading because it suggests a greater level of criminal culpability than Appel-
lant’s behavior and actions warrant. In that regard, it is not proportional to
the offenses to which Appellant was found guilty.
For these reasons, I would find that Appellant suffered prejudice and would
strike “and furthered the criminal enterprise of human sex trafficking” from
the reprimand.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
10