United States v. Todd

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________

No. ACM 38988
________________________

UNITED STATES
Appellee
v.
Benjamin C. TODD
Senior Airman (E-4), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Decided 28 June 2017
________________________

Military Judge: Shelly W. Schools.
Approved sentence: Bad-conduct discharge, confinement for 5 months,
and reduction to E-1. Sentence adjudged 2 December 2015 by GCM con-
vened at Joint-Base San Antonio-Lackland, Texas.
For Appellant: Major Annie W. Morgan, USAF.
For Appellee: Major Jeremy D. Gehman, USAF; Major Meredith L.
Steer, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Military Judges
Judge C. BROWN delivered the opinion of the court, in which Senior Judge
MAYBERRY and Judge HARDING joined.
________________________

This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________

C. BROWN, Judge:
A general court-martial consisting of a military judge sitting alone, con-
victed Appellant, consistent with his pleas and pursuant to a pretrial agree-
ment (PTA), of two charges and three specifications of wrongfully possessing
child pornography, in violation of Article 134, Uniform Code of Military Justice
 United States v. Todd, No. ACM 38988

(UCMJ), 10 U.S.C. § 934. 1 The military judge sentenced Appellant to a bad-
conduct discharge, confinement for five months, and reduction to E-1. The con-
vening authority approved the sentence as adjudged.
On appeal Appellant raises three assignments of error: (1) the staff judge
advocate (SJA) improperly solicited a victim impact statement from AA, a non-
victim; (2) the military judge erred by refusing to conduct an in camera review
of victim AC’s mental health records after AC’s unsworn victim impact state-
ment referenced depression; and (3) the military judge abused her discretion
by curtailing defense counsel’s sentencing argument. 2 Finding no error that
prejudiced a material right of Appellant, we affirm the findings and sentence.

I. BACKGROUND
Appellant, who was between 21 and 22 years old at the time of the charged
offenses, engaged in variety of relationships with four different teenage girls:
AC, AG, LC, and AA. Appellant met all but AA when they were 15 years old;
AA was 16 years old. These relationships served as the genesis for Appellant’s
possession of child pornography convictions. Appellant and AC exchanged sex-
ually explicit photographs and videos of each other masturbating while naked
when AC was 15 years old and engaged in a sexual relationship after she
turned 16. Appellant exchanged sexually explicit pictures with AG when she
was 16. Appellant met LC online and they engaged in mutual naked mastur-
bation over “Skype.” Despite LC asking Appellant not to tell anyone about their
masturbation sessions, Appellant took and kept “screenshots” of LC mastur-
bating over “Skype.” Appellant also communicated indecent language to AA
via text message. This conduct resulted in a charge of communicating indecent
language in violation of Article 134, UCMJ which was dismissed at trial pur-
suant to Appellant’s PTA. Despite the dismissal, Appellant stipulated to the
underlying facts of this offense along with all but one of the other charges and

1In accordance with Appellant’s PTA, two charges and three specifications of indecent
exposure, in violation of Article 120, UCMJ, 10 U.S.C. § 920, and one charge and one
specification of indecent language and one specification of wrongfully possessing child
pornography, in violation of Article 134, UCMJ, were withdrawn and dismissed after
the military judge announced findings.
2 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Having
considered Appellant’s arguments, we summarily reject them as they do not require
additional analysis or warrant relief. See United States v. Matias, 25 M.J. 356, 363
(C.M.A. 1987).

2
 United States v. Todd, No. ACM 38988

specifications dismissed at trial. 3 Appellant also agreed not to object to AA
providing a victim impact statement at trial for consideration on his rehabili-
tation potential.

II. DISCUSSION
A. AA’s Victim Impact Statement
Subsequent to Appellant’s court-martial, the convening authority’s SJA so-
licited victim impact statements from the victims of the offenses to which Ap-
pellant pleaded guilty and AA, the alleged victim of one of the dismissed
charges. Only AA provided a statement. The statement, which was identical to
the one she provided at trial, was attached to the staff judge advocate’s recom-
mendation (SJAR), and the complete SJAR was served on Appellant and his
counsel. In response, the Defense raised several errors, but they did not object
to the convening authority considering AA’s victim impact statement. Appel-
lant now alleges it was error for the SJA to solicit a victim impact statement
from AA as she did not meet the definition of a victim under Article 6b(b),
UCMJ, 10 U.S.C. § 806(b), 4 making it improper for the convening authority to
consider the statement under Rule for Courts-Martial (R.C.M.)
1107(b)(3)(A)(iv). 5 Appellant believes he was prejudiced when the convening
authority considered the statement because it contained “uncharged matters”
thereby reducing the likelihood the convening authority would grant Appellant
clemency. He asks this court to order new post-trial processing. We are not
persuaded.
The proper completion of post-trial processing is a question of law, which
this court reviews de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct.
Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct.

3 Appellant did not stipulate to the facts of Charge II, Specification 4, which alleged
wrongful possession of child pornography, in violation of Article 134, UCMJ, 10 U.S.C.
§ 934.
4Article 6b(b), UCMJ states: “In this section, the term ‘victim of an offense under this
chapter’ means an individual who has suffered direct physical, emotional, or pecuniary
harm as a result of the commission of an offense under this chapter (the Uniform Code
of Military Justice).”
5 Pursuant to R.C.M 1107(b)(3)(A)(iv), prior to taking action, the convening authority
is required to consider “[a]ny statement submitted by a crime victim pursuant to
R.C.M. 1105A and subsection (C) of this rule. R.C.M 1105A(b) states: “‘Crime victim’
defined. For purposes of this rule, a crime victim is a person who has suffered direct
physical, emotional, or pecuniary harm as a result of the commission of an offense of
which the accused was found guilty, and on which the convening authority is taking
action under R.C.M. 1107.”

3
 United States v. Todd, No. ACM 38988

Crim. App. 2004)). “Absent defense waiver or forfeiture, erroneous advice on
substantial matters of fact or law will invalidate the action when the error
prejudices the accused.” United States v. Kerwin, 46 M.J. 588, 590 (A.F. Ct.
Crim. App. 1996) (citation omitted).
Failure to timely comment on matters in the SJAR, or matters attached to
the recommendation, forfeits any later claim of error in the absence of plain
error. R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F.
2005). “To prevail under a plain error analysis, Appellant must persuade the
Court that: ‘(1) there was an error; (2) it was plain or obvious; and (3) the error
materially prejudiced a substantial right.’” Scalo, 60 M.J. at 436 (citations
omitted). Although the threshold for establishing prejudice in this context is
low, the appellant must nonetheless make at least “a colorable showing of pos-
sible prejudice in terms of how the [alleged error] potentially affected an ap-
pellant’s opportunity for clemency.” Id. at 437.
We need not address whether the SJA erred in attaching AA’s victim im-
pact statement to the SJAR or whether AA meets the definition of a “crime
victim” under Article 6(b)(b), UCMJ, and R.C.M. 1105A(b) as Appellant has
not made a colorable showing of possible prejudice with regards to the conven-
ing authority considering AA’s statement prior to taking action in Appellant’s
case. The SJAR properly advised the convening authority that he must con-
sider all matters submitted by Appellant and he may consider the record of
trial prior to taking action. 6 Appellant and his trial defense counsel were given
an opportunity to comment on the contents of the statement, but declined to
do so. Despite Appellant’s contention that the convening authority considering
AA’s statement diminished his chances for clemency as it discussed matters in
aggravation concerning offenses which were dismissed at trial, Appellant him-
self made the statement relevant and part of the record of trial when he stipu-
lated to the facts of the dismissed charge involving AA and agreed to allow her
to present the unsworn statement during pre-sentencing proceedings. Accord-
ingly, we find Appellant has made no colorable showing of prejudice with re-
gards to the convening authority considering AA’s statement and thus decline
to order new post-trial processing.
B. AC’s Mental Health Records
During her oral and written unsworn statement, AC stated that she was
treated for depression after her relationship with Appellant. Trial defense
counsel objected to the military judge considering her treatment for depression
or, in the alternative, asked to renew a motion he had made pre-trial with re-
gards to production of AC’s mental health records pursuant to Mil. R. Evid.

6 R.C.M. 1107(3)(A)(iii), (B)(i).

4
 United States v. Todd, No. ACM 38988

513. After hearing defense counsel’s objection, the military judge ruled that
Appellant had waived his right to the motion pursuant to his PTA and stated
she would consider AC’s entire statement. Appellant now claims the military
judge erred in not addressing whether, in light of AC’s statement, the Defense
had made a threshold showing to warrant an in camera review of AC’s mental
health records to potentially rebut her statement that Appellant’s conduct
caused her to be treated for depression. United States v. Klemick, 65 M.J. 576,
580 (N-M. Ct. Crim. App. 2006). As such, Appellant asks this court to order a
DuBay hearing to allow a military judge to examine AC’s mental health records
in camera and determine whether any mental health records should have been
provided to Appellant’s trial defense counsel under the constitutionally re-
quired exception 7 to Mil. R. Evid. 513. United States v. Dubay, 17 C.M.A. 147
(C.M.A. 1967).
When an appellate issue concerns the meaning and effect of a PTA, inter-
pretation of the agreement is a question of law, subject to review under a de
novo standard. United States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006). “A
criminal defendant may knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution.” United States v. Mez-
zanatto, 513 U.S. 196, 201 (1995). When an appellant waives a known right at
trial, “it is extinguished and may not be raised on appeal.” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (citing United States v. Harcrow, 66
M.J. 154, 156 (C.A.A.F. 2008)). 8 Our superior court has held that an accused
may offer to waive several significant rights as part of a pretrial agreement.
United States v. McFadyen, 51 M.J. 289, 290–91 (C.A.A.F. 1999) (citing United
States v. Rivera, 46 M.J. 52 (C.A.A.F. 1997) (accused may waive evidentiary
objections); United States v. Weasler, 43 M.J. 15, 19 (C.A.A.F. 1995) (accused
may offer to waive unlawful command influence in the preferral of charges in
a pretrial agreement); see United States v. Burnell, 40 M.J. 175 (C.M.A. 1994)
(waiver of trial by court-martial composed of members); see also United States

7 Mil. R. Evid. 513 no longer contains this exception, but did so at the time of Appel-
lant’s trial. Mil. R. Evid. 513(d)(8) (2012).
8 Waiver is different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional relin-
quishment or abandonment of a known right. The distinction between
the terms is important. If an appellant has forfeited a right by failing
to raise it at trial, we review for plain error. When, on the other hand,
an appellant intentionally waives a known right at trial, it is extin-
guished and may not be raised on appeal.
United States v. Feliciano, 76 M.J. 237, No. 17-0035, 2017 CAAF Lexis 482, at *5–6 n.2
(C.A.A.F. 2017) (quoting Gladue, 67 M.J. at 313).

5
 United States v. Todd, No. ACM 38988

v. Gansemer, 38 M.J. 340 (C.M.A. 1993) (waiver of administrative board is per-
missible)).
PTAs are governed by R.C.M. 705(c), which identifies prohibited and per-
missible terms and conditions. “A [PTA] in the military justice system estab-
lishes a constitutional contract between the accused and the convening author-
ity.” United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (citing Lundy, 63
M.J. at 301).
In a typical pretrial agreement, the accused foregoes certain
“constitutional rights . . . in exchange for a reduction in sentence
or other benefit. As a result, when interpreting pretrial agree-
ments, ‘contract principles are outweighed by the Constitution's
Due Process Clause protections for an accused.’ In a criminal con-
text, the government is bound to keep its constitutional promises
. . .” Id. (quoting United States v. Acevedo, 50 M.J. 169, 172
(C.A.A.F. 1999) (citations omitted)).
Smead, 68 M.J. at 59.
“It is the military judge’s responsibility to police the terms of pretrial agree-
ments to insure compliance with statutory and decisional law as well as adher-
ence to basic notions of fundamental fairness.” United States v. Riley, 72 M.J.
115, 120 (C.A.A.F. 2013) (citations and internal quotation marks omitted). “To
ensure that the record reflects the accused understands the pretrial agreement
and that both the Government and the accused agree to its terms, the military
judge must ascertain the understanding of each party during the inquiry into
the providence of the plea.” United States v. Smith, 56 M.J. 271, 272–73
(C.A.A.F. 2002) (citing United States v. Care, 40 C.M.R. 247 (C.M.A. 1969)).
Although the President has prohibited the waiver of certain fundamental
rights in a PTA, the waiver of discovery, including the right to production of
mental health records pursuant to Mil. R. Evid. 513, is not among them. 9
Here, Appellant filed a pretrial motion concerning AC’s mental health rec-
ords pursuant to Mil. R. Evid. 513. During the PTA inquiry, the military judge
specifically inquired about the substance of motions covered by the “waive all
waivable motions” term in Appellant’s PTA. First, she asked Appellant if he
was aware his counsel had filed several pretrial motions, including a Mil. R.

9 R.C.M. 705(c)(1)(B) states:
A term or condition in a pretrial agreement shall not be enforced if it
deprives the accused of: the right to counsel; the right to due process;
the right to challenge the jurisdiction of the court-martial; the right to
a speedy trial; the right to complete sentencing proceedings; the com-
plete and effective exercise of post-trial and appellate rights.

6
 United States v. Todd, No. ACM 38988

Evid. 513 motion. She further explained that the waiver provision meant the
motions would not be litigated and she would not decide if Appellant was enti-
tled to any relief based on the motions. Appellant responded that he under-
stood the waiver provision and indicated no one had forced him to enter into it.
The military judge went on to ask trial defense counsel to specifically state
the basis for the waived motions, including the Mil. R. Evid. 513 motion. Then
she instructed Appellant that while any of the motions might have entitled him
to relief, the waiver meant his counsel would not litigate the motions, she
would not rule on the motions, and they would not be later reviewed by the
appellate court to determine if Appellant was entitled to any relief. Appellant
again stated he understood the waiver provision and that he voluntarily agreed
to its terms. Finally, the parties agreed they would have further discussion
concerning a Mil. R. Evid. 412 issue during presentencing and this pending
discussion was not contrary to the motion waiver provision. After this ex-
change, Appellant again stated he had no questions about the waiver of mo-
tions provision. The military judge later advised Appellant he could withdraw
from his guilty pleas at any time before his sentence was announced and that
if he did so, the PTA would be cancelled. Appellant indicated he understood the
withdrawal provision.
AC’s written unsworn statement was provided to the Defense the night be-
fore trial, prior to Appellant affirmatively waiving all waivable motions and
before she read the statement in court. After AC read the statement, trial de-
fense counsel objected to the judge’s consideration of AC’s depression and twice
asked to “renew” the Mil. R. Evid. 513 motion filed before trial. When the mil-
itary judge expressed concerns about renewing motions previously waived by
the PTA, defense counsel stated, “I don’t disagree with that at all, ma’am.”
Defense counsel claimed that while he had the written statement prior to court,
he did not have the opportunity to interview the witness prior to her reading
it in court. The military judge noted the Appellant had voluntarily given up
the motions raised by the pretrial filings and that if there was a concern about
the unsworn statement provided to Appellant prior to trial it should have been
discussed before the waiver as the parties had discussed the Mil. R. Evid. 412
issue as it applied to one sentencing witness. Defense counsel continued to as-
sert that despite having the unsworn statement before trial, they were una-
ware of the information concerning AC’s depression. The military judge reiter-
ated that she had gone over the PTA and its provisions many times, and that
Appellant had been given ample opportunity to withdraw from the PTA. The
military judge ultimately ruled that she would consider AC’s entire statement
keeping in mind the appropriate weight given to unsworn statements. Appel-
lant did not withdraw from the PTA.

7
 United States v. Todd, No. ACM 38988

Facing a similar issue, this court in United States v. Cron, held the appel-
lant had knowingly and voluntarily waived his right to the production of the
mental health records of sentencing witnesses who testified concerning the im-
pact the appellant’s crimes had on them. In doing so, the court recognized that
an appellant may waive constitutional and procedural protections, including
the right to receive material impeachment evidence. United States v. Cron, 73
M.J. 718, 733–34 (A.F. Ct. Crim. App. 2014).
Here, Appellant’s express waiver of all waivable motions waived his right
to the potential production of AC’s mental health records, and extinguished his
right to raise these issues on appeal. This being the case, we need not reach
the issue of whether the military judge erred by not applying Mil. R. Evid. 513
and Klemick to determine whether the Defense had made a threshold showing
for an in camera review of the contested mental health records. 10

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. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED. 11

FOR THE COURT

KURT J. BRUBAKER
Clerk of the Court

10 In Klemick, the Navy-Marine Corps Court set out a three-part test to determine
whether a party had made a threshold showing for an in camera review: (1) did the
moving party set forth a specific factual basis demonstrating a reasonable likelihood
that the requested privileged records would yield evidence admissible under an excep-
tion to Mil. R. Evid. 513; (2) is the information sought merely cumulative of other in-
formation available; and (3) did the moving party make reasonable efforts to obtain
the same or substantially similar information through non-privileged sources? Klem-
ick, 65 M.J. at 580. This court has applied the Klemick test. See United States v. Wright,
75 M.J. 501, 510 (A.F. Ct. Crim. App. 2015).
11We note pages two and three of the Court-Martial Order (CMO) are dated 5 February
2015. This appears to be a typographical error, as page one is dated 5 February 2016,
the date of the convening authority’s action. Appellant was not prejudiced by this error;
however, we direct promulgation of a new CMO to cure the oversight.

8