United States v. Silvernail

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39618
________________________
UNITED STATES
Appellee
v.
James S. SILVERNAIL, Jr.
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 25 August 2021 1
________________________
Military Judge: Mark F. Rosenow.
Approved sentence: Confinement for 2 years, forfeiture of all pay and
allowances for 24 months, and reduction to E-1. Sentence adjudged 15
September 2018 by GCM convened at Joint Base Elmendorf-Richardson,
Alaska.
For Appellant: Robert Feldmeier, Esquire (argued); Major Mark J.
Schwartz, USAF.
For Appellee: Major Peter F. Kellett, USAF (argued); Colonel Shaun S.
Speranza, USAF; Lieutenant Colonel Joseph J. Kubler, USAF; Lieuten-
ant Colonel Brian C. Mason, USAF; Major Rachel S. Lyons, USAF; Mary
Ellen Payne, Esquire; Kelsey MacLeod (legal intern). 2
Before MINK, LEWIS, and ANNEXSTAD, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Senior
Judge LEWIS and Judge ANNEXSTAD joined.
________________________
1 We heard oral argument in this case on 21 July 2020. Judge D. Johnson sat for oral
argument but did not participate in or vote on this opinion due to her retirement from
the United States Air Force.
2 Ms. MacLeod was supervised by an attorney admitted to practice before this court.
United States v. Silvernail, No. ACM 39618
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MINK, Senior Judge:
A general court-martial comprised of officer and enlisted members con-
victed Appellant, contrary to his pleas, of one specification of dereliction of
duty, in violation of Article 92, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 892 (Charge I); four specifications of assault consummated by a bat-
tery and two specifications of aggravated assault, in violation of Article 128,
UCMJ, 10 U.S.C. § 928 (Charge III); and one specification of unlawful posses-
sion of a firearm as assimilated under 18 U.S.C. § 922(g)(9), in violation of
Article 134, UCMJ, 10 U.S.C. § 934 (Charge IV).3,4 The court-martial sentenced
Appellant to confinement for two years, forfeiture of all pay and allowances,5
and reduction to the grade of E-1.
3 All references in this opinion to the UCMJ, Rules for Courts-Martial (R.C.M.), and
Mil. R. Evid. are to the Manual for Courts-Martial, United States (2016 ed.).
4 One specification of assault consummated by a battery of which Appellant was found
guilty was originally charged as a specification of aggravated assault in violation of
Article 128, UCMJ. The court members found Appellant guilty of the lesser-included
offense. In addition, the military judge directed a finding of not guilty to one specifica-
tion of assault consummated by a battery, in violation of Article 128, UCMJ, after trial
defense counsel filed a motion for a finding of not guilty in accordance with R.C.M. 917.
Appellant also pleaded not guilty to two specifications of making a false official state-
ment in violation of Article 107, UCMJ, 10 U.S.C. § 907 (Charge II). The military judge
directed a finding of not guilty as to certain language in one of the Article 107, UCMJ,
specifications after trial defense counsel filed a motion for a finding of not guilty in
accordance with R.C.M. 917. The court members found Appellant not guilty of the re-
mainder of that specification and not guilty of the second specification of making a
false official statement.
5 Appellant has not raised as error the fact that the court-martial did not specify a time
limit for the adjudged forfeitures of all pay and allowances. We note that for any period
of time Appellant remained in a duty status, but was not confined, the maximum
amount of allowed forfeitures was two-thirds pay per month. See United States v. York,
53 M.J. 553, 554 (A.F. Ct. Crim. App. 2000). However, where a sentence to forfeiture
of all pay and allowances is adjudged such sentence “shall run until such time as the
servicemember is discharged or returns to a duty status, whichever comes first, unless
the sentencing authority expressly provides for partial forfeitures post-confinement.”
United States v. Stewart, 62 M.J. 291, 293–94 (C.A.A.F. 2006).
2
United States v. Silvernail, No. ACM 39618
The convening authority approved the sentence as adjudged except as to
the forfeiture of all pay and allowances. Upon taking action, the convening au-
thority suspended the forfeiture of pay and allowances for three months, at
which time that portion of the forfeitures would be remitted and the collection
of the “remaining” 21 months of forfeitures would begin.6 The convening au-
thority also deferred all of the adjudged and mandatory forfeitures until the
date of action, and waived the mandatory forfeiture of Appellant’s pay and al-
lowances for the benefit of Appellant’s dependent child for a period of six
months, release from confinement, or expiration of term of service, whichever
was sooner, with the waiver commencing 14 days after announcement of sen-
tence on 29 September 2018.
Appellant raises eight issues on appeal, which we reordered in this opinion:
(1) whether the evidence is legally and factually sufficient to sustain Appel-
lant’s convictions as to Charges I, III, and IV; (2) whether the military judge
erred by denying the defense motion to sever; (3) whether Charge I was barred
by the statute of limitations; (4) whether Charges I and IV are constitutional
as applied to Appellant;7 (5) whether the military judge abused his discretion
when he refused to grant a mistrial; (6) whether Appellant received ineffective
assistance of counsel from his civilian defense counsel when he failed to object
to the testimony of the Government’s expert witness; (7) whether the military
judge abused his discretion when he refused to allow the defense expert to tes-
tify as an expert witness; and (8) whether the military judge erred by denying
the defense motion to compel discovery of social media communications be-
tween two of the witnesses in the case.8 We also considered whether Appellant
is entitled to relief for facially unreasonable appellate delay. During our re-
view, we noted that the convening authority’s action omitted language order-
ing Appellant’s sentence executed. We find no error that materially prejudiced
Appellant’s substantial rights, and we affirm the findings and the sentence.
I. BACKGROUND
Appellant was stationed at Little Rock Air Force Base (AFB), Arkansas,
when he first met DS, a civilian woman, in 2009. They married later that same
year and their daughter was born in 2010. Due to permanent change of station
6 Appellant raised no issue regarding the convening authority’s approval of the forfei-
ture of pay and allowances, and we find no prejudicial error.
7 We heard oral argument on issues (3) and (4).
8 Appellant personally raised issues (6), (7), and (8) pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). We have carefully considered these issues and
find they warrant neither further discussion nor relief. See United States v. Matias, 25
M.J. 356, 361 (C.M.A. 1987).
3
United States v. Silvernail, No. ACM 39618
(PCS) orders, Appellant, DS, and their daughter moved to Joint Base Elmen-
dorf-Richardson (JBER), Alaska, in May 2013.
While living in Alaska, DS became friends with LM, a retired military
member, who was married to PM, a civilian. In 2017, PM contacted one of his
friends who worked as a detective for the security forces (SF) investigations
office at JBER and reported that LM had information about alleged acts of
domestic violence by Appellant against DS. As a result, SF initiated an inves-
tigation of Appellant. While performing a background check on Appellant, one
of the SF investigators discovered Appellant had been convicted of domestic
battery in Arkansas in 2008. Further investigation discovered Appellant had
been convicted of domestic battery in the third degree, a Class A misdemeanor,
in violation of Section 5-26.305 of the Arkansas Code, against a former girl-
friend, EA.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant contends that his convictions on the charges and specifications
are both legally and factually insufficient.9 With respect to the dereliction of
duty offense (Charge I and its specification), Appellant argues the conviction
is factually insufficient because the evidence shows he disclosed the fact that
he had been convicted in an Arkansas state court of a qualifying domestic vio-
lence offense. Similarly, for the Article 134, UCMJ, offense (Charge IV and its
specification), Appellant argues that the Government failed to prove that he
possessed any of the firearms “in or affecting” interstate commerce as alleged.
With respect to the specifications Appellant was convicted of relating to the
various domestic violence offenses against DS (Specifications 1 through 4, 7,
and 8 of Charge III), Appellant’s argument is two-fold: (1) DS fabricated the
allegations of domestic violence by Appellant to cover up her inappropriate re-
lationship with Detective DB, and (2) no evidence directly corroborates DS’s
testimony. We disagree with Appellant’s contentions and find his convictions
both legally and factually sufficient.
1. Law
We only affirm findings of guilty that are correct in law and fact and, “on
the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10
U.S.C. § 866(c). 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 omit-
ted). Our assessment of legal and factual sufficiency is limited to the evidence
9 For the most part, Appellant’s specific arguments address factual insufficiency. Our
later analysis will address both legal and factual sufficiency.
4
United States v. Silvernail, No. ACM 39618
produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (cita-
tions omitted).
“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) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
Circumstantial evidence may suffice. See United States v. Kearns, 73 M.J. 177,
182 (C.A.A.F. 2014) (citing Brooks v. United States, 309 F.2d 580, 583 (10th
Cir. 1962)). “[I]n resolving questions of legal sufficiency, we are bound to draw
every reasonable inference from the evidence of record in favor of the prosecu-
tion.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omit-
ted). As a result, “[t]he standard for legal sufficiency involves a very low thresh-
old to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F.
2019) (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 ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In
conducting this unique appellate role, we take ‘a fresh, impartial look at the
evidence,’ applying ‘neither a presumption of innocence nor a presumption of
guilt’ to ‘make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
The Gun Control Act of 1968 established a ban on firearms possession for
certain individuals including persons convicted of a crime punishable by im-
prisonment for a term exceeding one year. See Pub. L. 90-618 § 102, 82 Stat.
1213, 1220 (22 Oct. 1968); 18 U.S.C. § 922(g)(1). In 1996, the 104th Congress
enacted the “Gun Ban for Individuals Convicted of a Misdemeanor Crime of
Domestic Violence,” which bans access to firearms by persons convicted of a
misdemeanor crime of domestic violence. See Omnibus Consolidated Appropri-
ations Act of 1997, Pub. L. 104-208, § 658, 10 Stat. 3009-37 (30 Sep. 1996).
Provisions of the Domestic Violence Offender Gun Ban, enumerated in 18
U.S.C § 922(g)(9) and known as the “Lautenberg Amendment,” provide, in per-
tinent part, that “it shall be unlawful for any person . . . who has been convicted
in any court of a misdemeanor crime of domestic violence, to ship or transport
in interstate or foreign commerce, or possess in or affecting commerce, any
5
United States v. Silvernail, No. ACM 39618
firearm or ammunition . . . .” The Department of Defense imposes an “affirma-
tive, continuing obligation” upon servicemembers “to inform commanders or
supervisors if they have, or later obtain, a qualifying conviction.” See Depart-
ment of Defense Instruction (DoDI) 6400.06, Domestic Abuse Involving DoD
Military and Certain Affiliated Personnel, ¶ 6.1.4.5.1.1 (21 Aug. 2007, Change
4 dtd 26 May 2017). “For purposes of this instruction . . . the term ‘qualifying
conviction’ applies to . . . [a] State or Federal conviction for a misdemeanor
crime of domestic violence.” Id. at ¶ E2.24.
2. Analysis
a. Dereliction of Duty (Charge I)
In order to find Appellant guilty of willful dereliction of duty, as charged,
the Government was required to prove beyond a reasonable doubt: (1) that Ap-
pellant had a certain duty, that is to refrain from possessing Government-is-
sued firearms without informing his supervisors of his qualifying domestic vi-
olence conviction under 18 U.S.C. § 922(g)(9); (2) that Appellant knew or rea-
sonably should have known of the duty; (3) that the duty was affirmative and
continuing; and (4) that within the United States, on divers occasions, between
on or about 9 January 2013 and on or about 19 September 2017, Appellant was
willfully derelict in the performance of the duty by willfully possessing Gov-
ernment-issued firearms without informing his supervisors of his qualifying
domestic violence conviction under 18 U.S.C. § 922(g)(9). See Manual for
Courts-Martial, United States (MCM), pt. IV, ¶ 16.b.(3). “A duty may be im-
posed by treaty, statute, regulation, lawful order, standard operating proce-
dure, or custom of the service.” MCM, pt. IV, ¶ 16.c.(3)(a). “Actual knowledge
of duties may be proved by circumstantial evidence. Actual knowledge need
not be shown if the individual reasonably should have known of the duties.”
MCM, pt. IV, ¶ 16.c.(3)(b). A “person is derelict in the performance of duties
when that person willfully or negligently fails to perform that person’s duties
or when that person performs them in a culpably inefficient manner.” MCM,
pt. IV, ¶ 16.c.(3)(c). “Willful” is defined as “intentional.” MCM, pt. IV,
¶ 16.c.(3)(c).
The evidence at trial shows that while in Arkansas in 2008, Appellant was
convicted of domestic battery which qualified as a domestic violence conviction
under the Lautenberg Amendment. The Department of Defense imposes an
“affirmative, continuing obligation” upon servicemembers “to inform com-
manders or supervisors if they have, or later obtain, a qualifying conviction”
under the Lautenberg Amendment. The Department of Defense (DD) Form
2760, Qualification to Possess Firearms or Ammunition, “shall be made avail-
able for use by those personnel who come forward to report a qualifying con-
viction in compliance with their obligation to do so.” DoDI 6400.06 at
¶ 6.1.4.5.1.4.1. Witnesses from Appellant’s current and prior units testified as
6
United States v. Silvernail, No. ACM 39618
to their knowledge of unit requirements to recertify annually10 the absence of
any such qualifying conviction. The witnesses identified DD Form 2760 as the
form on which they accomplished the annual recertification. A blank copy of
the form was admitted into evidence as a prosecution exhibit. The DD Form
2760 states that a servicemember has “a continuing obligation” to inform lead-
ership of any qualifying conviction. SSgt JC, one of Appellant’s co-workers at
JBER, testified that a “Lautenberg Notice” stating the requirement to disclose
any such qualifying conviction that would prevent the use or possession of a
firearm was posted on the door of the armory in Appellant’s duty location. Pho-
tographs of the “Lautenberg Notice” posted on the armory door were admitted
into evidence as a prosecution exhibit.
Appellant handled Government-issued firearms as evidenced by his train-
ing record, which documented Appellant completed three separate tasks that
involved training with weapons at the JBER armory. Appellant asserts that
he complied with the requirement of disclosing his qualifying conviction as ev-
idenced by the fact that his conviction was referenced in his enlisted perfor-
mance report that closed out on 6 December 2008 at Little Rock AFB. Appel-
lant asserts that he had no “continuing” duty to report. Even in the absence of
a DD Form 2760 signed by Appellant during the charged timeframe, the testi-
mony of Appellant’s co-workers indicated that it was a standard operating pro-
cedure of the unit to recertify annually the absence of a Lautenberg qualifying
conviction.
We conclude that Appellant clearly knew or should have known of this
duty as evidenced by the posted “Lautenberg Notice” on the armory door of his
duty location. Appellant’s training records further establish that he possessed
Government-issued firearms during the charged timeframe. Appellant’s train-
ing records dated June 2016 reflecting the tasks on which Appellant was
trained were admitted into evidence as a prosecution exhibit. SSgt JC testified
that the “aircrew armory” training tasks that Appellant completed included,
“arms room and clearing barrel attendant responsibilities, weapons issue, load
clearing receipt, turn-in and formal weapons inspection.”
After considering the evidence in the light most favorable to the Govern-
ment, we conclude that a rational factfinder could find all of the elements of
10 DoDI 6400.06, ¶ 6.1.4.5.1, states, “Military personnel shall be periodically informed
of the Domestic Violence Amendment to the Gun Control Act . . .” and the DoD’s im-
plementing procedures. A witness from Appellant’s unit at Little Rock AFB testified
that the annual requirement to sign the DD Form 2760 coincided with a firearms train-
ing requirement. The witness explained “we have to keep current on M-9s because we
issue them.”
7
United States v. Silvernail, No. ACM 39618
willful dereliction of duty beyond a reasonable doubt. Therefore, we find Ap-
pellant’s conviction of dereliction of duty legally sufficient. Similarly, after
weighing all the evidence in the record of trial and making allowances for not
having personally observed the witnesses, we ourselves are convinced of Ap-
pellant’s guilt of willful dereliction of duty beyond a reasonable doubt and
therefore find his conviction factually sufficient.
b. Unlawful Possession of a Firearm (Charge IV)
In order to find Appellant guilty of unlawful possession of a firearm to the
prejudice of good order and discipline, the Government was required to prove
beyond a reasonable doubt: (1) that within the United States on divers occa-
sions, between on or about 9 January 2013 and on or about 30 November 2017,
Appellant unlawfully possessed a firearm, in or affecting interstate commerce,
in violation of 18 U.S.C. § 922(g)(9); and (2) that under the circumstances the
conduct of Appellant was to the prejudice of good order and discipline in the
Armed Forces. See MCM, pt. IV, ¶ 60.b.(1); 18 U.S.C. § 922(g)(9). Conduct that
is prejudicial to good order and discipline is described as those “acts directly
prejudicial to good order and discipline and not to acts which are prejudicial
only in a remote or indirect sense. . . . It is confined to cases in which the prej-
udice is reasonably direct and palpable.” MCM, pt. IV, ¶ 60.c.(2)(a). The mili-
tary judge defined interstate commerce for the court members as “commerce
between any place in a state and any place outside of that state; but, such term
does not include commerce between places within the same state; but, through
any place outside of that state.”
As noted above, Appellant was convicted of domestic battery in Arkansas
in 2008. In accordance with 18 U.S.C. § 922(g)(9), Appellant was prohibited
from possessing firearms. The evidence produced at trial included two bills of
sale from Arkansas establishing that Appellant purchased one firearm each
from two civilian individuals, GP and MH. Both of the civilians testified that
they sold a firearm to Appellant in Arkansas. Each bill of sale identified the
firearm by its serial number. DS testified that when moving pursuant to PCS
orders from Arkansas to Alaska, all of Appellant’s guns were packed and
shipped to Alaska by the Government-contracted movers. The household goods
inventory created by the movers reflected 15 firearms owned and shipped by
Appellant. Two of those firearms were identified by serial number as the fire-
arms Appellant had purchased from GP and MH. One of the sellers, MH, tes-
tified that Appellant identified himself as a military member by providing MH
8
United States v. Silvernail, No. ACM 39618
with his military identification card when purchasing the firearm from him.11
In addition, each bill of sale required the buyer to certify that he had not been
convicted of misdemeanor domestic battery.
Appellant challenges his conviction on this offense primarily on factual suf-
ficiency grounds. Specifically, Appellant contends that the Government failed
to prove that he possessed a firearm “in or affecting” interstate commerce. He
argues that Government-contracted movers took possession of his firearms and
transported them from Arkansas to Alaska, and that he did not have posses-
sion of the firearms during the period when they were moving in interstate
commerce. We disagree with Appellant’s contention that he did not have pos-
session of the firearms during their transport from Arkansas to Alaska. While
the firearms may not have been in Appellant’s physical custody during the
transport,12 the firearms were in his physical possession in both Arkansas and
Alaska and in his constructive possession during transit. Appellant availed
himself of a Government-paid move pursuant to PCS orders. Appellant placed
his firearms in the physical custody of the movers but never relinquished own-
ership or any expectation that the firearms were his property or that he would
not retake physical possession in Alaska. In addition, the evidence at trial es-
tablished that Appellant possessed the firearms on divers occasions, in both
Arkansas and Alaska.
We conclude that a rational factfinder could find all of the elements of un-
lawful possession of a firearm in or affecting interstate commerce to the preju-
dice of good order and discipline by Appellant beyond a reasonable doubt.
Therefore, we find Appellant’s conviction to be legally sufficient. After carefully
considering the evidence presented at trial in a light most favorable to the Gov-
ernment, we ourselves are convinced of Appellant’s guilt of unlawful possession
of a firearm and find his conviction of this offense factually sufficient.
c. Assault Offenses against DS (Charge III)
Appellant was convicted of four specifications of assault consummated by a
battery and two specifications of aggravated assault.
11 This firearm bill of sale lists Appellant’s name and bears his signature but it does
not include his address, driver’s license number, or phone number. MH explained in
his testimony that some of these sections of the form were blank because Appellant
presented his military identification card instead of his driver’s license.
12 See United States v. Dolen, 7 C.M.R. 666, 671 (A.F.B.R. 1952) (applying the ordinary
legal significance of the term bailment as the delivery of personal property to another
for a specific purpose and stating after creation of a bailment, the bailor retains title
to, and ownership of, the property) (citations omitted).
9
United States v. Silvernail, No. ACM 39618
In order to find Appellant guilty of assault consummated by a battery, the
Government was required to prove beyond a reasonable doubt: (1) that Appel-
lant did bodily harm to a particular person, and (2) that the bodily harm was
done with unlawful force or violence in the manner alleged. See MCM, pt. IV,
¶ 54.b.(2). “Bodily harm” is defined as “any offensive touching of another, how-
ever slight,” and the act “must be done without legal justification or excuse and
without the lawful consent of the person affected.” MCM, pt. IV, ¶ 54.c.(1)(a).
“Unlawful force or violence” is demonstrated if an accused “wrongfully caused
the contact, in that no legally cognizable reason existed that would excuse or
justify the contact.” United States v. Bonner, 70 M.J. 1, 3 (C.A.A.F. 2011) (cita-
tion omitted).
In order to find Appellant guilty of aggravated assault, the Government
was required to prove beyond a reasonable doubt: (1) that Appellant did bodily
harm to a particular person; (2) that Appellant did so with a certain force; (3)
that the bodily harm was done with unlawful force or violence in the manner
alleged; and (4) that the force was used in a manner likely to produce death or
grievous bodily harm. See MCM, pt. IV, ¶ 54.b.(4). “Other means or force” is
described as including “any means or instrumentality not normally considered
a weapon. When the natural and probable consequence of a particular use of
any means or force would be death or grievous bodily harm, it may be inferred
that the means or force is ‘likely’ to produce that result.” MCM, pt. IV,
¶ 54.c.(4)(a)(ii). “Grievous bodily harm” is defined as “serious bodily injury.”
MCM, pt. IV, ¶ 54.c.(4)(a)(iii).
Appellant was convicted of one specification of assault consummated by a
battery for unlawfully spitting on DS’s face on divers occasions between 9 Jan-
uary 2013 and 19 August 2017. At trial, DS testified that she was apprehensive
about the family’s move to Alaska in 2013 because it was far from home for her
and a place where she had no family or friends. She explained that this caused
tension between her and Appellant after the move as they worked to get the
family settled in Alaska. Eventually, DS began work as an optician in Eagle
River, Alaska. DS testified that throughout their marriage, Appellant “spit on
[her] many, many times.” DS stated Appellant “would just be angry about
something and . . . as he’s walking away or walking out the door, he would just
spit in [her] face.” She testified that it was not accidental, and she could not
estimate the number of times he had done so during the time they had lived in
Alaska.
Appellant was convicted of one specification of assault consummated by
battery and one specification of aggravated assault arising out of an incident
that occurred on or about 20 July 2013. The assault consummated by a battery
specification alleged that on or about 20 July 2013 in Alaska, Appellant struck
DS in the stomach with his fist. The aggravated assault specification alleged
10
United States v. Silvernail, No. ACM 39618
that on that same date and in the same place, Appellant strangled DS’s neck
with his hands with a force likely to produce death or grievous bodily harm. At
trial, DS testified about an incident that occurred in the kitchen of their house
in Anchorage, Alaska, around 20 July 2013. DS stated that following a “heated”
argument between her and Appellant, Appellant “punched [her] a few times in
the stomach and choked [her] twice.” She described doubling “over a bit in
pain.” She also described the “choking” as “[she] couldn’t breathe and he knew
that [she] was about to pass out, and then, he would let [her] breathe for a
second and then, he would choke [her] again.” DS also described the “choking”
as Appellant having both hands around her neck. She testified that she expe-
rienced a “lot of pain” and could not “breathe or talk.” DS also stated that she
had pain when swallowing for approximately a week after the incident.13
Appellant was convicted of another assault consummated by a battery—
originally charged as an aggravated assault but resulted in a conviction for the
lesser-included offense of assault consummated by a battery—for strangling
DS’s neck with his hand on or about 15 December 2015. DS testified that one
morning in December 2015 in Alaska, DS asked Appellant to take their daugh-
ter to school since he had the day off. An argument ensued and continued from
inside their house into their garage. During the argument, their daughter was
inside Appellant’s truck which blocked DS’s car inside the garage. DS testified
that Appellant pinned her against the back door of her car, with one hand
around her neck and was pointing at her with the other hand while yelling at
her. She distinguished this event in severity from the “choking” previously de-
scribed, stating, “I mean, he was choking me but it wasn’t as bad as normal. I
mean, I could still form words. It’s almost like he was just pinning me there
instead of trying to suffocate me.” DS testified that she was able to get away
from Appellant, retrieve their daughter from Appellant’s truck, and move to
another part of the garage, where Appellant pursued her. DS described their
daughter as intervening, and saying “no, daddy, no.” DS testified that she told
several co-workers about this incident and moved out of the house soon after.
One of DS’s co-workers testified that DS told her in August 2013 and again in
December 2015 that Appellant had physically abused DS. Approximately six
months after the December 2015 incident, DS moved back into the home with
Appellant.
Appellant was convicted of one specification of assault consummated by
battery and one specification of aggravated assault arising out of an incident
that occurred on or about 19 August 2017. The assault consummated by a bat-
tery specification alleged that on or about 19 August 2017 in Alaska, Appellant
13 The military judge granted the defense motion to merge the specifications related to
the July 2013 incident for purposes of sentencing.
11
United States v. Silvernail, No. ACM 39618
struck DS in the body with his fist on divers occasions. The aggravated assault
specification alleged that on the same date and at the same place, Appellant
strangled DS’s neck with his hands with a force likely to produce death or
grievous bodily harm. DS testified that she and Appellant had an argument in
August 2017 when she asked Appellant to help put away groceries. DS testified
that Appellant punched her in the stomach “several times” while in the garage
of their home. DS described feeling afraid because she felt like Appellant
“couldn’t control anything about himself.” She called out to her daughter and
screamed loudly in an effort to attract the attention of the neighbors. She tes-
tified that she tried to fight back, but her actions only seemed to make Appel-
lant angrier. DS stated that Appellant “choked” her twice, using “both hands.”
DS remembered everything “kind of fading and going limp,” and then Appel-
lant let her go and after she was able to take a breath, he “start[ed] choking
[her] again.” She described what she experienced while Appellant choked her.
DS said that she felt pressure, was unable to breathe or talk, heard a
“womping” sound in her ears, and her vision went black for a second or two.
The following day, on 20 August 2017, DS sent Appellant a text message, a
copy of which was admitted into evidence as a prosecution exhibit. The mes-
sage from DS to Appellant stated, “Btw, I’m sore from yesterday but luckily for
you there are no marks on my face or stomach, my throat is a little bruised but
no one will notice.” DS testified that she had “fingerprint” bruises on her neck,
pain swallowing, and a feeling like Appellant’s “hands were still around [her]
neck even three days later.”14
On appeal, as at trial, the Defense attempts to impeach DS’s credibility
through several lines of attack. The Defense argues that despite DS’s ability to
be financially independent from Appellant and provide for herself and her
daughter, she moved back in with Appellant following one or more of the al-
leged assaults. The Defense points to social media posts and other statements
by DS that were very positive about Appellant. The Defense argues that there
were no photographs of any injuries, that DS made no police reports, and no
witnesses, including DS’s friends and co-workers, saw marks or bruising fol-
lowing the assaults. The Defense also argues that DS and Appellant were in
the midst of divorce proceedings at the time of trial and that custody of their
daughter was a contentious issue. The Defense points to DS’s repeated re-
quests to Detective DL for information regarding the domestic violence inves-
tigation. The Defense also suggests that DS was involved in some form of in-
appropriate relationship with Detective DB, who at the time of trial was the
subject of a commander’s investigation regarding his role as a supervisor in the
investigation of Appellant. Detective DL testified that he was “uncomfortable”
14 The military judge granted a defense motion to merge the specifications related to
the August 2017 incident for purposes of sentencing.
12
United States v. Silvernail, No. ACM 39618
with the relationship between Detective DB and DS and felt that it was “inap-
propriate.” However, both Detective DB and DS testified that they were only
friends, and the Defense presented no evidence to the contrary.
Despite the Defense suggestions regarding DS’s divorce and child-custody
proceedings, it is undisputed that DS did not initially bring the evidence of
domestic violence by Appellant to the attention of authorities. The evidence
showed that she had been confiding in her friends, LM and PM, about the as-
saults since 2015, when they helped her move out of her house the first time.
It was not until after the incident in August 2017 that PM reported the alleged
assault to authorities. At trial, Detective DL confirmed that it was someone
other than DS that made the initial report. He testified that when he first met
with DS, his perception was that she did not want to talk to investigators or be
involved in the investigation.
Appellant exposed all of these concerns during the trial. The court members
were able to assess DS’s credibility and observe her demeanor in court, includ-
ing during the cross-examination by trial defense counsel. Based upon her tes-
timony alone, a rational factfinder could conclude beyond a reasonable doubt
that each of these assaults occurred.
In assessing legal sufficiency, we are limited to the evidence produced at
trial and are required to consider it in the light most favorable to the Prosecu-
tion. The bulk of the evidence produced at trial supporting these offenses was
provided by DS’s testimony. While not all the evidence was free from conflict,
it did not have to be. See Wheeler, 76 M.J. at 568 (citation omitted). We conclude
that a rational factfinder could have found beyond a reasonable doubt all the
elements to support Appellant’s convictions on the four specifications of assault
consummated by a battery and on the two specifications of aggravated assault.
Furthermore, in assessing factual sufficiency, after weighing all the evidence
in the record of trial and having made allowances for not having personally
observed the witnesses, we are convinced of Appellant’s guilt beyond a reason-
able doubt. See Turner, 25 M.J. at 325. Therefore, we find Appellant’s convic-
tions both legally and factually sufficient.
B. Appellant’s Motion to Sever
Appellant contends that the military judge abused his discretion by decid-
ing not to sever the domestic violence offenses from the other offenses charged
in Appellant’s case because of the likelihood of impermissible spillover. We dis-
agree.
1. Additional Background
As noted above, the charges and specifications originally preferred against
Appellant included allegations of dereliction of duty, making false official
13
United States v. Silvernail, No. ACM 39618
statements, unlawfully possessing a firearm, and eight specifications of aggra-
vated assault and assault consummated by a battery against his spouse, DS.
Prior to trial, the Defense moved to sever all of the specifications pertaining to
dereliction of duty, false official statement, and unlawfully possessing a fire-
arm from the specifications pertaining to the domestic violence offenses. In the
alternative, the Defense asked the military judge to require the Government
to give separate opening statements, presentation of the evidence, and closing
arguments; that there be separate findings instructions and separate work-
sheets for the domestic violence offenses and the other offenses; and for the
military judge to give a “tailored spillover instruction to guard against ‘mani-
fest injustice.’” The Government opposed the motion.
After conducting an Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing and
receiving additional evidence and argument from counsel, the military judge
denied the motion to sever. In a written ruling issued prior to authentication
of the record of trial, he analyzed the three factors identified in United States
v. Curtis, 44 M.J. 106, 128 (C.A.A.F. 1996), rev’d as to sentence on recon, 46
M.J. 129 (C.A.A.F. 1997) (per curiam), and articulated in United States v.
Southworth, 50 M.J. 74, 76 (C.A.A.F. 1999): “(1) whether the evidence of one
offense would be admissible proof of the other; (2) whether the military judge
has provided a proper limiting instruction; and (3) whether the findings reflect
an impermissible crossover.”
While acknowledging that the Government had not conceded the first fac-
tor, the military judge assumed this factor favored the Defense “for the purpose
of resolving the motion.” However, the military judge did not find this factor
dispositive and instead found that the remaining two factors weighed against
severance. The military judge concluded that “no manifest injustice” would re-
sult if all of the alleged offenses were tried together. See R.C.M. 906(b)(10).
However, as part of this ruling, the military judge directed the Government “to
frame its opening statement, closing argument and cross examination of the
accused – in the event he elects to testify – so as to maintain separation” be-
tween the domestic violence specifications and the other specifications. The
military judge further required the Government:
[T]o specifically identify the complete scope of the anticipated
testimony and evidence intended to be offered to prove the ac-
cused’s “qualifying domestic violence conviction” in support of
the allegations [of dereliction of duty and unlawfully possessing
a firearm as conduct prejudicial to good order and discipline] in
a session outside the presence of the court members so that any
additional objections may be raised and ruled upon.
During the presentation of evidence during the findings case, Detective DL
stated that during his background investigation of Appellant, he discovered
14
United States v. Silvernail, No. ACM 39618
that Appellant had a “conviction from 2008 in Arkansas for a . . . qualifying
domestic violence conviction for Lautenberg.” Trial defense counsel immedi-
ately objected, and the military judge sustained the objection, instructing the
court members:
Members, you’ll disregard that portion of the witness’s response.
Let me be plain, no witness can testify that they believe any
other witness or that any other witness’s account is credible or
true, or whether a crime occurred. To the extent that you believe
that this witness has so testified, you’ll disregard that portion of
his testimony. You can consider his response that he found a da-
tabase revealing a conviction from 2008 in Arkansas. You’ll dis-
regard the portion of his response characterizing it as a qualify-
ing domestic violence conviction. This instruction will be in-
cluded, at least in broad strokes, in my written instructions at
the end of the case. Additionally, this rule applies to the earlier
testimony that you’ve received from [DS] on this point, where at
various times, she sponsored what another witness may or may
not have believed about her account. You are going to get that
instruction at the end, but since I’m giving it to you now, I fig-
ured I would surface that concern as well. So, again, one more
time to be clear, no witness can testify that they believe another
witness’s account is true or that a crime occurred. It’s for you to
make those determinations. Witnesses tell you what the evi-
dence is. I tell you what the law is. And, then, you make your
determination on the findings in this case. Does every member
understand and can you follow along with the court’s instruc-
tion?
The court members responded that they could do so, and the Defense re-
quested no further instructions at that point. Later, when instructing the court
members with respect to findings, the military judge stated, inter alia:
An accused may be convicted based only on evidence before the
court and not on evidence of a general criminal disposition. Each
offense must stand on its own and you must keep the evidence
of each offense separate. Stated differently, if you find or believe
that the accused is guilty of one offense, you may not use that
finding or belief as a basis for inferring, assuming, or proving
that he committed any other offense.
If evidence has been presented which is relevant to more than
one offense, you may consider that evidence with respect to each
offense to which it is relevant. . . .
15
United States v. Silvernail, No. ACM 39618
The burden is on the prosecution to prove each and every ele-
ment of each offense, beyond a reasonable doubt. Proof of one
offense carries with it no inference that the accused is guilty of
any other offense.
I just instructed you that you may not infer the accused is guilty
of one offense because his guilt may have been proven on another
offense, and that you must keep the evidence with respect to
each offense separate. However, there is an exception to this pro-
hibition. Evidence of the accused’s knowledge of his assigned
duty, if any, may be considered as part of your deliberations on
the specification of Charge I.[15] It may also be considered for its
bearing on whether, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline in the
Armed Forces as alleged in the specification of Charge IV.
You have received evidence that the accused may have been pre-
viously convicted for an offense [of domestic battery]. You may
consider this evidence, whether from those exhibits or any other
evidence and testimony admitted, in determining the weight and
significance, if any, to be given to the other evidence and testi-
mony in this case. You may not consider this evidence, however,
in determining the accused’s guilt of any of the allegations in
Charge III and its specifications.[16] The fact that the accused
may have been previously convicted for an offense will have no
bearing on the allegations of aggravated assault and assault con-
summated by a battery. Further, you may not conclude from this
evidence that the accused is a bad person or has general criminal
tendencies and that he therefore committed any of the offenses
charged.
The military judge also provided additional tailored instructions to the
court members as to how they could properly use evidence of Appellant’s un-
charged misconduct.17
15 Charge I and its specification was the alleged dereliction of duty offense.
16 Charge III and its specifications were the alleged domestic violence offenses.
17 After cross-examination of DS, the military judge admitted limited purpose testi-
mony under Mil. R. Evid. 404(b) that Appellant “may have physically and emotionally
abused” DS prior to 9 January 2013, a time period outside of the five-year statute of
limitations.
16
United States v. Silvernail, No. ACM 39618
2. Law
We review a military judge’s ruling on a motion to sever for an abuse of
discretion. United States v. Giles, 59 M.J. 374, 378 (C.A.A.F. 2004) (citation
omitted). “A military judge abuses his discretion when his findings of fact are
clearly erroneous, when he is incorrect about the applicable law, or when he
improperly applies the law.” United States v. Roberts, 59 M.J. 323, 326
(C.A.A.F. 2004).
“Under R.C.M. 906(b)(10), a military judge is required to grant a severance
motion when necessary to avoid a ‘manifest injustice.’” Giles, 59 M.J. at 378.
On appeal, “the appellant must demonstrate more than the fact that separate
trials would have provided a better opportunity for an acquittal[;]” he must
demonstrate “the ruling caused actual prejudice by preventing the appellant
from receiving a fair trial.” Id. (citations omitted). Appellate courts review such
rulings by applying the following factors: “(1) Do the findings reveal an imper-
missible crossover of evidence? (2) Would the evidence of one offense be admis-
sible proof of the other? (3) Did the military judge provide a proper limiting
instruction?” Id. (citing Curtis, 44 M.J. at 128).
Court members are presumed to follow the military judge’s instructions in
the absence of evidence to the contrary. United States v. Taylor, 53 M.J. 195,
198 (C.A.A.F. 2000) (citations omitted).
3. Analysis
The military judge did not abuse his discretion in concluding severance was
not required in order to prevent manifest injustice to Appellant. Anticipating
the evidence that would be presented in this case, the military judge acknowl-
edged the importance placed on the presumption of innocence and the obliga-
tion of court members to follow the law in general voir dire would be of “partic-
ular emphasis” in Appellant’s case. The military judge reasonably anticipated
that he would give a “tailored instruction explaining the permitted uses – if
any – of the evidence admitted to prove one offense with respect to another if
[Appellant] maintains his election to be tried by members,” which Appellant
did. The military judge also found that the clear legal and factual distinctions
between the alleged offenses pertaining to domestic violence and all of the
other offenses made the risk of “impermissible crossover unlikely.”
As noted above, the military judge did give appropriate limiting instruc-
tions, and the Government generally adhered to his directions to present its
opening statement and closing argument in a manner that maintained sepa-
ration between the offenses. The military judge also required the Government
to “specifically identify the complete scope of the anticipated testimony and
evidence intended to be offered to prove [Appellant]’s ‘qualifying domestic vio-
lence conviction’ . . . in a session outside the presence of the court members so
17
United States v. Silvernail, No. ACM 39618
that any additional objections may be raised and ruled upon.” Reviewing the
record as a whole, we find no indication the court members failed to follow the
military judge’s instruction or impermissibly relied on evidence of any other
offense in order to find Appellant guilty of the domestic violence offenses.
Despite Appellant’s argument to the contrary, we find that the military
judge’s limiting instruction was tailored to address the specific evidence in this
case. The military judge clearly recognized the potential impact of the evidence
of Appellant’s prior domestic violence conviction and tailored his instruction to
caution the court members about the permissible and impermissible uses of
that evidence. As the Government points out, the court members’ findings of
not guilty as to some of the domestic violence offenses supports the conclusion
that the court members followed the military judge’s instructions. We do not
agree with Appellant’s contention that the evidence supporting the domestic
violence offenses was weak, and that there was a “high likelihood of impermis-
sible crossover when weak evidence supports a charge.” See Curtis, 44 M.J. at
128. The sufficiency of the evidence as to each of the offenses of which Appel-
lant was convicted is discussed above, and we find that the joinder of the of-
fenses in this case did not create an impermissible risk of spillover or any other
manifest injustice. We find that the military judge’s findings of fact were sup-
ported by the evidence in the record, and that he correctly applied the law to
the facts. Accordingly, we conclude the military judge did not abuse his discre-
tion.
C. Statute of Limitations
Appellant asserts that his conviction of dereliction of duty, alleging he pos-
sessed Government-issued firearms without informing his supervisors of his
prior domestic violence conviction, was barred by the statute of limitations.
Appellant argues that the act or omission giving rise to the duty for which he
was allegedly derelict arose more than five years prior to receipt of the charge
and its specification by the summary court-martial convening authority. We
disagree.
1. Additional Background
As noted above, in 2008 Appellant was convicted in Arkansas for domestic
battery against his girlfriend at that time, EA.
The summary court-martial convening authority receipted for the sworn
charges in Appellant’s case on 9 January 2018. At his court-martial, on 15 Sep-
tember 2018, Appellant was convicted for being derelict in the performance of
his duties by willfully possessing Government-issued firearms on divers occa-
sions between on or about 9 January 2013 and on or about 19 September 2017
without informing his supervisors of his qualifying domestic violence convic-
tion “as it was his continuing, affirmative duty to do.”
18
United States v. Silvernail, No. ACM 39618
2. Law
The statute of limitations applicable to a particular offense is a question of
law, which appellate courts review de novo. United States v. Lopez de Victoria,
66 M.J. 67, 73 (C.A.A.F. 2008) (citation omitted).
Article 43(b)(1), UCMJ, 10 U.S.C. § 843(b)(1), provides in pertinent part
that “[a] person charged with an offense is not liable to be tried by court-mar-
tial if the offense was committed more than five years before the receipt of
sworn charges and specifications by an officer exercising summary court-mar-
tial jurisdiction over the command.”
3. Analysis
On appeal, Appellant argues that his failure to report his qualifying domes-
tic violence misdemeanor offense occurred at the time of his conviction in Ar-
kansas in 2008 and was completed at that time. Consequently, Appellant con-
cludes, the statute of limitations had run by 2013, several years prior to the
receipt of court-martial charges by the summary court-martial convening au-
thority in 2018 in this case. Appellant relies on the United States Supreme
Court opinion in Toussie v. United States, 397 U.S. 112 (1970), in support of
his argument that the failure to report the qualifying offense was not a “con-
tinuing offense” and therefore, was completed in 2008. In Toussie, the Supreme
Court held that the obligation to register for the Selective Service Act within
five days of the appellant’s eighteenth birthday was not a “continuing offense,”
relying on Congress’s silence on whether it intended the failure to register to
be a continuing offense. Id. at 120–21.
The Government acknowledges some similarities between the duties im-
posed to register in Toussie and to report in this case, but argues that Toussie
is not dispositive on the issue of whether the obligation to report the qualifying
domestic violence conviction is a continuing offense. The Government points to
the language of paragraph 6.1.4.5.1.1 of DoDI 6400.06 as “unambiguously” im-
posing an “affirmative, continuous obligation” to report the conviction.
We agree that Toussie is not dispositive on the issue of whether the statute
of limitations lapsed in this case. While 18 U.S.C. § 922(g)(9) may not have
specified by its terms that it was a continuing offense, Appellant was charged
and convicted with being derelict in the performance of his duties on divers
occasions. The duty of which Appellant was convicted was imposed by DoDI
6400.06, which clearly described the duty as an “affirmative, continuing” one.
As a result, Appellant had an ongoing duty to inform his supervisors of the
qualifying conviction during the charged timeframe. The evidence established
that Appellant was provided Government-issued firearms within the statute
of limitations and willfully failed to report his qualifying conviction as he was
19
United States v. Silvernail, No. ACM 39618
required to do at the time he received the Government-issued firearms. In ad-
dition, DoDI 6400.06 contains no provision that would have relieved Appellant
from reporting his qualifying conviction at a new duty station even if he had
reported it at a prior duty station. Therefore, the dereliction of duty offense for
which Appellant was convicted was not barred by the statute of limitations.
D. Constitutional Challenges
On appeal, for the first time Appellant asserts as a single assignment of
error that Charge IV, alleging that he unlawfully possessed a firearm in or
affecting interstate commerce in violation of Article 134, UCMJ, is unconstitu-
tional as applied to him. Appellant also asserts that if he was subject to a “con-
tinuing” duty to report a Lautenberg qualifying offense to his supervisors as
alleged in Charge I, that charge is also unconstitutional as applied to him. Spe-
cifically, Appellant contends these charges deprive him of his Second Amend-
ment18 right to keep and bear arms. We are not persuaded that either offense
is unconstitutional as applied to Appellant.
1. Additional Background
As noted above, Appellant was convicted of being willfully derelict in the
performance of his duty on divers occasions by possessing a Government-is-
sued firearm without informing his supervisors of his qualifying conviction un-
der the Lautenberg Amendment. Appellant was also convicted of unlawfully
possessing a firearm in or affecting interstate commerce on divers occasions,
in violation of 18 U.S.C. § 922(g)(9), such conduct being to the prejudice of good
order and discipline.
2. Law
We review the constitutionality of a statute de novo. United States v. Ali,
71 M.J. 256, 265 (C.A.A.F. 2012) (citing United States v. Disney, 62 M.J. 46, 48
(C.A.A.F. 2005)).
The Second Amendment to the United States Constitution states that: “A
well regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.” In District of Co-
lumbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the Second
Amendment confers upon an individual the right to keep and bear arms. Later,
in McDonald v. City of Chicago, 561 U.S, 742 (2010), the Supreme Court held
that the Second Amendment’s individual right to keep and bear arms applies
to the states through the Due Process Clause of the Fourteenth Amendment.19
18 U.S. CONST. amend. II.
19 U.S. CONST. amend. XIV.
20
United States v. Silvernail, No. ACM 39618
In United States v. Smith, 56 M.J. 711, 716 (A.F. Ct. Crim. App. 2001), rev.
denied, 56 M.J. 477 (C.A.A.F. 2002), this court addressed the issue of whether
the Lautenberg Amendment was constitutional as applied to an individual in
possession of a firearm after having been convicted of a misdemeanor crime of
domestic violence. In Smith, the appellant was charged with violating 18
U.S.C. § 922(g)(9) by possessing a firearm after being convicted of a misde-
meanor domestic violence offense under Ohio state law. Id. at 712. The appel-
lant argued that 18 U.S.C. § 922(g)(9) unconstitutionally denied him the right
to keep and bear arms under the Second Amendment. Id. at 716. Without de-
ciding the appropriate standard of constitutional scrutiny, this court found “no
merit in this argument,” holding that “[r]egardless of whether the right con-
ferred by the Second Amendment is ‘individual’ or ‘collective’ . . . . Congress
has the power to regulate the interstate trade in firearms, and may act to stem
the flow of guns to those whose convictions for domestic violence offenses re-
flect a propensity to inflict bodily harm upon others.” Id. (citing Gillespie v.
City of Indianapolis, 185 F.3d 693, 706 (7th Cir. 1999)).
3. Analysis
Relying on Heller, Appellant claims the Lautenberg Amendment is uncon-
stitutional as applied to him. Specifically, Appellant argues that he cannot be
deprived, for life, of his right to keep and bear arms based on a misdemeanor
conviction. He further argues that statutes—such as the Lautenberg Amend-
ment—restricting “core Second Amendment” protections are subject to “strict
scrutiny.” Consequently, Appellant contends that if he was under a “continu-
ing” duty to report the Lautenberg qualifying offense, it is unconstitutional as
applied to him because the Lautenberg Amendment “fails” under a strict scru-
tiny analysis.
At the outset we note that the “right of law-abiding, responsible citizens to
use arms in defense of home and hearth,” as recognized in Heller was not im-
plicated by the dereliction of duty offense of which Appellant was convicted.
See Heller, 554 U.S. at 635. As the Government correctly points out, the dere-
liction of duty offense of which Appellant was convicted related to his posses-
sion of Government-issued firearms.
Appellant argues that because Smith was decided before Heller’s recogni-
tion of an “individual” right to keep and bear arms, we should hold that Smith
is no longer controlling and overrule it. We decline to do so. In Smith, this court
recognized that Congress has the power to regulate the Second Amendment
“regardless of whether the right conferred by the Second Amendment is ‘indi-
vidual’ or ‘collective.’” 56 M.J at 716. The Supreme Court’s decision in Heller
did not affect Smith’s conclusion that Congress “may act to stem the flow of
guns to those whose convictions for domestic violence offenses reflect a propen-
sity to inflict bodily harm upon others.” See 56 M.J. at 716 (citation omitted).
21
United States v. Silvernail, No. ACM 39618
In the years following the Supreme Court’s decision in Heller, federal cir-
cuits that have considered a Second Amendment challenge to the Lautenberg
Amendment, specifically Section 922(g)(9) of Title 18, have similarly upheld
this statute, though “under varying frameworks and rationales.” Stimmel v.
Sessions, 879 F.3d 198, 203 (6th Cir. 2018) (citations omitted).
In Stimmel, the United States Court of Appeals for the Sixth Circuit ana-
lyzed a constitutional challenge to the Lautenberg Amendment under a two-
part inquiry, considering whether the challenged statute burdens a Second
Amendment guarantee, and if so, whether the statute satisfies “the appropri-
ate level of heightened means-end scrutiny.” Id. at 204 (citations omitted). The
court assumed, without deciding, that “a domestic violence misdemeanant’s
Second Amendment rights remain intact to some degree.” Id. at 206 (citations
omitted). Turning next to the level of scrutiny, the Sixth Circuit applied inter-
mediate scrutiny, requiring the Government to advance a “significant, sub-
stantial, or important” objective that “reasonabl[y] fit” between the challenged
statute and the objective. Id. at 207 (citations omitted). The court ultimately
held “it is reasonable to conclude that domestic abusers have high recidivism
rates, pose a continued risk to their families, as well as law enforcement, are
more likely to kill their victims when armed, and should be disarmed[,]” and
in accordance with “the unanimous view of those circuits that have addressed
the question” concluded the “fit” is “reasonable” and Section 922(g)(9) survives
intermediate scrutiny. Id. at 211; see also United States v. Chovan, 735 F.3d
1129, 1139 (9th Cir. 2013), cert. denied, 574 U.S. 878 (2014); United States v.
Booker, 644 F.3d 12, 22–26 (1st Cir. 2011), cert. denied, 565 U.S. 1204 (2012);
United States v. Skoien, 614 F.3d 638, 639–45 (7th Cir. 2010) (en banc), cert.
denied, 562 U.S. 1303 (2011); cf. United States v. White, 593 F.3d 1199, 1205–
06 (11th Cir. 2010) (holding the statute “presumptively lawful”).
We find nothing in the Supreme Court’s decision in Heller or in the decisions
by other federal circuits that would cause us to adopt a strict scrutiny frame-
work for reviewing Appellant’s challenge to the Lautenberg Amendment or to
overrule this court’s decision in Smith. Accordingly, we reject Appellant’s as-
applied challenges to both Charge I and Charge IV, and we find no constitu-
tional infirmity with either conviction.
E. Denial of Motion for Mistrial
During the Government’s findings case and following testimony by LM,
who was one of DS’s friends, Appellant made a motion to strike LM’s testimony
or, in the alternative, that the military judge declare a mistrial. The military
judge granted Appellant’s motion to strike the testimony of LM and denied the
motion for a mistrial. Appellant contends the military judge abused his discre-
tion by denying the motion for mistrial based on the “unique circumstances” of
this case. Appellant points to the high risk of spillover from the non-domestic
22
United States v. Silvernail, No. ACM 39618
violence offenses and that the military judge ordered the testimony of LM
“stricken from the record.”20 Appellant asserts that this combination of factors
was so prejudicial to Appellant that it could not be cured by an instruction to
the court-members. We disagree.
1. Additional Background
Appellant first made a motion for mistrial during DS’s testimony after DS
made mention of Appellant’s prior conviction for domestic violence. During her
testimony during the Government’s case-in-chief, DS stated that one of the de-
tectives told her about Appellant’s prior misdemeanor conviction for domestic
violence in Arkansas and DS added Appellant “does have that previous convic-
tion.” The military judge sustained in part an objection by the trial defense
counsel and then provided a limiting instruction to the court members advising
them that they could only consider that information as to the effect it had on
DS hearing that information and not as to whether the information was true.
A short time later, the military judge sustained another objection by trial de-
fense counsel after DS testified that Appellant was “no longer allowed to be at
his job and around guns and everything.” The military judge provided another
limiting instruction to the court members that they could only consider that
information as to the effect that it had on DS to decide to move out of the family
home.
DS further testified that she moved in with friends the day after receiving
the phone call from law enforcement because they were planning to bring Ap-
pellant in for questioning and were concerned for her safety at home. The mil-
itary judge then took a break in the proceedings. Trial defense counsel re-
quested an Article 39(a), UCMJ, session during which the Defense then re-
quested a mistrial based on the failure to sever the domestic assault offenses
involving DS from the other offenses (Charges I, II, and IV), and DS’s testi-
mony referencing uncharged misconduct and Appellant’s prior conviction.
Trial defense counsel stated the basis for the motion for a mistrial was the
testimony of DS referencing three incidents prior to the charged timeframe.
Trial defense counsel also stated he was renewing his motion to sever the do-
mestic violence offenses from the other offenses, arguing that Appellant could
not receive a fair trial under the circumstances. After hearing the argument of
counsel for both sides, the military judge denied the defense motion for a mis-
trial, stating,
20 The military judge instructed the court members to “wholly, completely, and without
exception disregard the entirety of [LM’s] testimony, and it must have no bearing,
whatsoever, on [their] deliberations.”
23
United States v. Silvernail, No. ACM 39618
Under [R.C.M.] 915, mistrial is required when such action is
manifest and necessary in the interest of justice because of the
circumstances arising during the proceedings which casts [sic]
substantial doubt upon the fairness of the proceedings. . . . I
have inquired into the views of the parties as required by
[R.C.M.] 915(b); and, based on 915(a), as well as the [D]iscussion
section, which enjoins military judges to exercise this power with
great caution, under urgent circumstances only and for plain
and obvious reasons. Taking into account that this is not the
kind of information or material that is so prejudicial that a cu-
rative instruction would be inadequate, I don’t find that a mis-
trial would be appropriate in these proceedings.
The denial of the motion for mistrial discussed above is not the one chal-
lenged by Appellant on appeal. Later, during the testimony of LM, trial defense
counsel moved for a mistrial in the alternative to a motion to strike the testi-
mony of LM. It is the denial of the second motion for a mistrial that Appellant
raises as error on appeal.
The motion to strike the testimony of LM originated from a discovery issue
raised by trial defense counsel before the court-martial. Prior to trial, the mil-
itary judge denied a defense motion to compel discovery or abate the proceed-
ings as a result of the Government’s loss of discoverable material. Specifically,
the pretrial interview of LM by SF investigators, as well as those of other wit-
nesses, was recorded but the recording was not saved. According to the military
judge’s findings of fact, while the investigators routinely saved the recordings
of any subject interview, the preservation of witness interview recordings was
discretionary on the part of investigators under the local “internal recording
policy.” Seven witness-interview recordings were not saved in this case. When
the recording of a witness interview was not saved, investigators captured the
substance of a witness interview in writing on a witness interview form. LM’s
witness statement, as well as those of other witnesses in this case, were pre-
served in this way. The military judge denied the defense motion to compel
discovery or abate the proceedings after determining that the Defense (1) was
“able to obtain comparable evidence” through other reasonably available
means; (2) failed to demonstrate the exculpatory value was apparent before
the destruction; and (3) failed to demonstrate bad faith by the Government.
The military judge acknowledged the destroyed recordings would have pro-
vided additional information but concluded that it was entirely speculative
that the additional information would be of central importance to an issue as
to be essential to a fair trial.
24
United States v. Silvernail, No. ACM 39618
Later, after DS testified, but prior to LM being called to testify, trial de-
fense counsel requested an Article 39(a), UCMJ, session to discuss LM’s ex-
pected testimony. Acknowledging that the issue was not ripe until LM testi-
fied, trial defense counsel provided notice to the court as to concerns regarding
the application of the Jencks Act21 with respect to the destroyed recording of
LM’s interview with investigators. LM was then called as a witness and testi-
fied. She described prior statements by DS that were mostly consistent with
DS’s testimony regarding the assault in December 2015. LM became emotional
at times during her testimony. She also stated that DS did not want to tell
anyone else about the assaults. LM additionally testified that when she and
PM helped Appellant and his family move, they helped them move a gun safe
that she believed contained guns. After trial counsel completed the direct ex-
amination of LM, trial defense counsel requested an Article 39(a), UCMJ, ses-
sion.
LM then testified during the Article 39(a) session about her interview with
Detective DL in October 2017. While she could not remember specific details,
she estimated that she was at the SF investigations office for one to two hours
for her interview. She confirmed that she wrote a statement that was approx-
imately half of a page that only captured the “meat and potatoes,” as opposed
to the more detailed statement she had given verbally to Detective DL. She
had difficulty recalling the details of what she discussed during her interview
with Detective DL.
After LM’s Article 39(a) session testimony concluded, trial defense counsel
asked the military judge to strike LM’s prior testimony that she had given on
the merits. The military judge asked trial defense counsel whether he wanted
LM’s testimony struck or if he was requesting a mistrial. Trial defense counsel
stated he was requesting LM’s testimony be struck. The military judge then
again asked whether trial defense counsel was requesting a mistrial. Trial de-
fense counsel said that he was requesting a mistrial in the alternative to LM’s
testimony being struck. After hearing arguments from counsel for both sides,
the military judge took a break, during which he considered the arguments
presented, reviewed the evidence and “voluminous materials” that had been
provided during the course of the court-martial to that point, and reviewed the
applicable case law. The military judge concluded that R.C.M. 914 and the
Jencks Act had been violated and that the good-faith loss exception argued by
the Government did not apply. The military judge then discussed his conclu-
sions regarding the options available to him—to either strike LM’s testimony
or grant a mistrial.
21 18 U.S.C. § 3500.
25
United States v. Silvernail, No. ACM 39618
The military judge then granted the defense request to strike LM’s testi-
mony and denied the motion for mistrial. The military judge explained his ra-
tionale on the record. He noted that the corroborating evidence provided by LM
was not the only available evidence. He noted that the court members had
demonstrated that they could follow his instructions as he had previously in-
structed them to disregard other information in the court-martial. The military
judge stated that he considered the fact that LM became somewhat emotional
at times during her testimony. He also noted that LM’s testimony was not the
kind of information that was “so salacious or distracting” that the members
would not be able to disregard.
The military judge then provided the following instruction to the court
members regarding LM’s testimony:
Members, I have an instruction for you. As with all my instruc-
tions, I’d ask you to pay close attention to what I’m about to read
to you; and, then, I’m going to have some individualized ques-
tions for each of you.
Members, based on legal issues that were raised to my attention
yesterday, following the direct examination of Mrs. [LM], the
court has determined that the Rules for Courts-Martial do not
permit you to consider her testimony. Accordingly, you are in-
structed to wholly, completely, and without exception disregard
the entirety of her testimony, and it must have no bearing, what-
soever, on your deliberations in this case. It is as if it were never
given and you will draw no inference favorable or unfavorable to
either side based on this order. I specifically note you were not
afforded the opportunity to observe her cross-examination from
the defense, or the chance to pose her questions yourselves and
have thereby not been provided a full account of what her testi-
mony might have been once it was subjected to challenge. As a
consequence of that, you have similarly not been provided suffi-
cient information to determine her credibility. Nonetheless, be-
cause the court has determined her testimony during direct ex-
amination is inadmissible, any additional questioning by the de-
fense or the court members, or me derived therefrom would be
similarly inadmissible. For that reason, it will not be developed.
Can every member follow this instruction?
In response to questioning by the military judge, each court member indi-
vidually affirmed he or she could follow the military judge’s instruction. The
military judge also noted that each court member either lined out material or
folded up paper and provided it to the bailiff to shred after he instructed them
to destroy any notes they had taken regarding LM’s testimony. The military
26
United States v. Silvernail, No. ACM 39618
judge again provided the above-quoted instruction to disregard LM’s testimony
in its entirety during findings instructions.
2. Law
We review a military judge’s ruling on a motion for mistrial for a clear
abuse of discretion. United States v. Coleman, 72 M.J. 184, 186 (C.A.A.F. 2013)
(citing United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009)). “The military
judge may, as a matter of discretion, declare a mistrial when such action is
manifestly necessary in the interest of justice because of circumstances arising
during the proceeding which casts substantial doubt upon the fairness of the
proceedings.” R.C.M. 915(a). “Declaration of a mistrial is a drastic remedy, and
such relief will be granted only to prevent a manifest injustice against the ac-
cused.” United States v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990) (citation omit-
ted). “Because of the extraordinary nature of a mistrial, military judges should
explore the option of taking other remedial action, such as giving curative in-
structions.” Ashby, 68 M.J. at 122 (citations omitted). A mistrial should only
be granted “when ‘inadmissible matters so prejudicial that a curative instruc-
tion would be inadequate are brought to the attention of the members.’” United
States v. McFadden, 74 M.J. 87, 89–90 (C.A.A.F. 2015) (quoting United States
v. Diaz, 59 M.J. 79, 92 (C.A.A.F. 2003)).
3. Analysis
We find the military judge did not abuse his discretion by denying the mo-
tion for a mistrial. Declaration of a mistrial is a drastic and disfavored remedy,
and is not appropriate when curative instructions are adequate. See McFad-
den, 74 M.J. at 89–90 (citations omitted). In this case, the military judge not
only sustained timely objections to inadmissible testimony, but also gave
strong and specific instructions describing how, if at all, the court members
could properly consider the evidence before them.
We addressed Appellant’s contention regarding the risk of impermissible
spillover in the discussion of the motion to sever above. The military judge
granted the relief requested by the trial defense counsel by striking LM’s tes-
timony. We are not persuaded by Appellant’s attempt to combine these two
contentions to form “unique circumstances” warranting a mistrial. The effect
of the military judge’s ruling with respect to LM’s testimony prevented the tes-
timony of at least three additional government witnesses, which certainly did
not work to the prejudice of Appellant. Other witnesses, JL and AS, also de-
scribed prior consistent statements of domestic abuse by DS, similar to the
testimony provided by LM. As the military judge noted, while LM’s testimony
was sometimes emotional, it was not to such a degree that the court members
would not be able to disregard it. Each of the military judge’s rulings were fully
27
United States v. Silvernail, No. ACM 39618
supported by the evidence in the record and reflected the correct application of
the law.
We presume the court members followed the military judge’s instructions
absent evidence to the contrary. See United States v. Stewart, 71 M.J. 38, 42
(C.A.A.F. 2012) (citing United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F.
2000)). We conclude the military judge did not clearly abuse his discretion in
finding the favored remedy of curative instructions was adequate, and conclud-
ing that the disfavored remedy of mistrial was not “manifestly necessary in the
interest of justice.” See R.C.M. 915(a); Coleman, 72 M.J. at 186 (citation omit-
ted).
F. Timeliness of Appellate Review
1. Additional Background
Appellant’s case was originally docketed with this court on 30 January
2019. The delay in rendering this decision within 18 months of docketing is
presumptively unreasonable. However, we determine there has been no viola-
tion of Appellant’s right to due process and a speedy post-trial review and ap-
peal.
2. Law
“We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citing United States v. Rodriguez, 60 M.J.
239, 246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.
2003)). In Moreno, the United States Court of Appeals for the Armed Forces
(CAAF) established a presumption of facially unreasonable delay when the
Court of Criminal Appeals does not render a decision within 18 months of dock-
eting. Id. at 142. Where there is such a delay, we examine the four factors set
forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(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 [to the appellant].” Moreno, 63 M.J. at 135
(citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United
States, 60 M.J. 100, 102 (C.A.A.F. 2004) (per curiam)). “No single factor is re-
quired for a finding of a due process violation and the absence of a given factor
will not prevent such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533.
However, where an appellant has not shown prejudice from the delay, there
is no due process violation unless the delay is so egregious as to “adversely
affect the public’s perception of the fairness and integrity of the military justice
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In Moreno,
the CAAF identified three types of cognizable prejudice arising from post-trial
processing delay: (1) oppressive incarceration; (2) anxiety and concern; and (3)
28
United States v. Silvernail, No. ACM 39618
impairment of ability to present a defense at a rehearing. 63 M.J. at 138–39
(citations omitted).
3. Analysis
The court is affirming the findings and sentence in this case. We find no
oppressive incarceration because Appellant is no longer in confinement and his
appeal has not resulted in a finding warranting sentencing relief. As for anxi-
ety and concern, the CAAF has explained that “the appropriate test for the
military justice system is to require an appellant to show particularized anxi-
ety or concern that is distinguishable from the normal anxiety experienced by
prisoners awaiting an appellate decision.” Id. at 140. Appellant has made no
claim of such particularized anxiety, and we discern none in his case. Lastly,
where the appeal does not result in a rehearing on findings or sentence, as in
this case, an appellant’s ability to present a defense at a rehearing is not im-
paired. Id. Because we conclude that Appellant suffered no prejudice from the
delay, we do not address the first three Barker factors.
Where, as here, 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 military justice system.”
Toohey, 63 M.J. at 362. This is a lengthy and complicated case. The record of
trial includes 10 volumes. The proceedings took place over eight days, and the
transcript is almost 2,000 pages long. Appellant filed his brief with this court
almost seven months after docketing, the Government filed its brief more than
two months later, and Appellant then filed a reply brief a month later. Appel-
lant raised significant issues for our consideration, including those about
which we heard oral argument. We originally granted Appellant’s motion for
oral argument on 8 January 2020 and the oral argument was scheduled for 24
April 2020. However, due to the imposition of federal COVID-19 social distanc-
ing guidelines and travel restrictions—all in response to a global pandemic—
the oral argument was delayed with Appellant’s consent until 21 July 2020.
On 6 July 2021, counsel for Appellant submitted a motion for leave to file
a notice of Appellant’s demand for speedy appellate processing. We denied Ap-
pellant’s motion, but nevertheless recognized Appellant’s demand for speedy
appellate review. The delay in issuing the court’s opinion exceeded the 18-
month Moreno standard by approximately 12 months. Under the particular cir-
cumstances in this case, we do not find the delay so egregious as to adversely
affect the perceived fairness and integrity of the military justice system. See
Toohey, 63 M.J. at 362.
Recognizing our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we
have also considered whether relief for excessive post-trial delay is appropriate
even in the absence of a due process violation. See United States v. Tardif, 57
29
United States v. Silvernail, No. ACM 39618
M.J. 219, 225 (C.A.A.F. 2002). After considering 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 it is not.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred.22 Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
NATALIA A. ESCOBAR, Capt, USAF
Deputy Clerk of the Court
22 Our review of the record reveals the convening authority ordered no portion of Ap-
pellant’s sentence executed in the initial court-martial order. The term of confinement
already having been served, we note that if the other elements of the sentence are not
ordered executed in the final court-martial order, any reduction in grade and forfeiture
of pay and allowances imposed upon Appellant pursuant to the adjudged sentence
must be restored to Appellant. See United States v. Bridges, 65 M.J. 531, 534–35 (C.G.
Ct. Crim. App. 2007), aff’d, 66 M.J. 246 (C.A.A.F. 2008).
30