United States v. Snyder

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39470
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UNITED STATES
Appellee
v.
Brandon L. SNYDER
Major (O-4), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Decided 15 April 2020
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Military Judge: J. Wesley Moore (arraignment); Vance H. Spath.
Approved sentence: Dismissal, confinement for 6 months, forfeiture of
$1,000.00 pay per month for 6 months, and a reprimand. Sentence ad-
judged 11 January 2018 by GCM convened at Patrick Air Force Base,
Florida.
For Appellant: Major Benjamin H. DeYoung, USAF; Major Jarett F.
Merk, USAF; Donald G. Rehkopf, Jr., Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Major Zachary T. West, USAF; Captain
Peter F. Kellett, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and POSCH, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Senior Judge
MINK and Judge LEWIS joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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 United States v. Snyder, No. ACM 39470

POSCH, Judge:
A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of one specification of sexual assault in violation of Article
120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. 1 The conviction
concerns Appellant’s sexual act upon SB, a female friend of a coworker’s daugh-
ter. 2 Appellant was sentenced to a dismissal, confinement for six months, for-
feiture of $1,000.00 pay per month for six months, and a reprimand. The con-
vening authority approved the sentence as adjudged.
Appellant raises 22 issues on appeal and we consider one additional issue.
This opinion addresses 13 assignments of error, nine issues that Appellant per-
sonally raises combined as one assignment of error, 3 and one additional issue
raised by the court: (1) whether the evidence is legally and factually sufficient
to support the conviction; (2) whether the Specification of the Charge fails to
state an offense because it fails to allege any mens rea element; (3) whether
Appellant was denied the right to be represented at trial by retained civilian
counsel of choice in violation of the Sixth Amendment; 4 (4) whether Appellant
was denied the Sixth Amendment right to a public trial; (5) whether the rea-
sonable doubt instruction the military judge gave was constitutionally defec-
tive; (6) whether Appellant was denied the Sixth Amendment right to confront
SB after she read an unsworn victim impact statement in presentencing; (7)
whether the military judge abused his discretion in precluding Appellant from
including attachments to his written unsworn statement in violation of Rule
for Courts-Martial (R.C.M.) 1001(c)(1)(B); (8) whether Appellant was deprived
of due process and equal protection under the law in violation of the Fifth

1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial (R.C.M.), and Military Rules of Evidence are to the Manual for
Courts-Martial, United States (2016 ed.).
2 Appellant’s sole charge consisted of two specifications in which he pleaded not guilty
to both specifications, and was acquitted of the second specification of abusive sexual
contact of SB in violation of Article 120, UCMJ, 10 U.S.C. § 920.
3Appellant’s counsel raised 13 assignments of error on 23 July 2019, and the Govern-
ment answered on 5 September 2019. On 10 October 2019, pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant identified nine issues alleging he
received ineffective assistance by Major MR and Captain (Capt) JK who represented
Appellant at trial, and by Capt JK who represented Appellant in his post-trial clem-
ency submission.
4 U.S. CONST. amend. VI.

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Amendment 5 because the military judge excluded attachments to his unsworn
statement, and yet SB could discuss the collateral consequences of Appellant’s
conviction in her unsworn statement; (9) whether the military judge abused
his discretion when he instructed the members to disregard the consequences
to Appellant of sex offender registration; (10) whether Appellant’s sentence to
a mandatory dismissal is unconstitutional; (11) whether Appellant’s sentence
is inappropriately severe; (12) whether the military judge’s undisclosed em-
ployment negotiations created a disqualifying appearance of bias; (13) whether
Appellant was denied the right to procedural due process in the post-trial pro-
cessing of his case; and (14) whether Appellant was denied effective assistance
of counsel under the Sixth Amendment as alleged in nine deficiencies in the
performance of his trial defense counsel. 6 In addition, we consider the issue of
timely appellate review.
We find Appellant’s conviction both legally and factually sufficient, and no
error materially prejudicial to the substantial rights of Appellant occurred. We
thus affirm.

I. BACKGROUND
Appellant first met 18-year-old SB, a female friend of a coworker’s daugh-
ter, when she was introduced to Appellant at his workplace on Patrick Air
Force Base (AFB), Florida. The visit and introduction occurred during the
workweek before Father’s Day weekend in 2016. On Sunday evening, while
visiting the coworker’s family as a guest in their home, Appellant digitally pen-
etrated SB’s vulva with his finger as SB lay down in a bedroom she shared with
her best friend, FK. Appellant was convicted on the basis of SB’s testimony,
the testimony given by FK, FK’s parents, and SB’s mother, and by evidence
uncovered in the investigation when SB reported the incident to civilian and
military authorities.
Appellant was tried on 11–12 July 2017 and 8–11 January 2018 at Patrick
AFB. On the eve of trial reconvening in January with Judge Spath presiding,
Appellant, through two detailed military trial defense counsel, moved for a
continuance so Appellant could be represented by a civilian defense counsel
(CDC), Mr. Donald G. Rehkopf, Jr., Esquire, in addition to military counsel.
Judge Spath denied the continuance. After trial, the CDC prepared a brief in
accordance with Article 38(c), UCMJ, 10 U.S.C. § 838(c), which he intended for

5 U.S. CONST. amend. V.
6 We address the allegation that Appellant’s military defense counsel were deficient
during post-trial processing together with our resolution of his thirteenth assignment
of error.

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the convening authority’s consideration before the convening authority took
action on Appellant’s case. However, the CDC submitted the brief to the con-
vening authority’s legal staff after action had been taken, and the convening
authority did not recall the action to consider the brief.
In this appeal, Appellant claims structural error in Judge Spath’s denial of
Appellant’s request for a continuance to be represented by the CDC, and al-
leges Judge Spath was disqualified from presiding at trial on grounds that his
post-retirement employment negotiations created an appearance of bias. Ap-
pellant also claims prejudice from the convening authority’s failure to recall
the action to consider the CDC’s Article 38(c), UCMJ, brief. We consider these
allegations of error among the other aforementioned errors Appellant assigns
for review, and begin with Appellant’s contention that his conviction is legally
and factually insufficient.

II. DISCUSSION
A. Legal and Factual Sufficiency
1. Additional Facts
SB and FK became close friends in the two years they attended the same
high school in Virginia and they kept in touch after FK’s father, a major in the
Air Force, was reassigned and moved with his family to Florida. FK’s parents
also developed a close relationship with SB, and FK’s mother regarded SB as
a daughter. SB graduated high school in Northern Virginia in the summer of
2016 when she was 18 years old. Her best friend, FK, was present at SB’s grad-
uation, and after the ceremony the two traveled together to Florida. SB stayed
with FK and her family as a guest in their home near Patrick AFB.
SB arrived in Florida during the week before Father’s Day weekend in June
2016. Shortly after, she joined FK on a visit to FK’s father at the workplace he
shared with Appellant. A week or two before SB’s visit, FK’s father told Appel-
lant that SB was his daughter’s best friend from high school, and Appellant
would probably meet her. He portrayed SB as a pretty, athletic girl and showed
Appellant her picture. Because FK’s father knew Appellant was likely to make
sexual comments during the visit, he told Appellant to tone down what Appel-
lant said because SB was just 18 years old and might be uncomfortable with
his jokes and sexual innuendo. On several occasions, FK and her family simi-
larly prepared SB for Appellant’s “very crude” humor, explaining Appellant
“just happens to make very inappropriate jokes, specifically towards women,”
always excusing Appellant’s behavior as “very harmless.”
At the workplace, SB was introduced to Appellant who right away made a
comment about the size of her breasts. In that same visit SB dubbed FK a
“tomboy,” to which Appellant retorted, “No, [FK] doesn’t have a penis she has

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a gigantic clit.” SB left the office shortly after Appellant’s comments. After the
office visit, SB next saw Appellant when she and FK worked out at a gym.
Although SB and Appellant had limited interaction, she overheard Appellant
tell a friend in reference to SB, “Oh, look. [FK] brought me a little treat, an-
other little treat.” SB explained that FK had once introduced Appellant to a
female friend from college who was adopted from China, and Appellant had
remarked, “Oh, I want to eat my Chinese food. She’s a treat of mine.”
SB next saw Appellant on Father’s Day. Appellant, his wife, and their two
children joined FK’s family and SB for brunch, and later in the afternoon were
guests at a pool party and barbecue at FK’s home. At one point, while SB
played with Appellant’s young daughter in the pool, Appellant swam up to SB,
went underwater, and stared at a tattoo of a Bible verse on SB’s right hip for
about 30 seconds. SB found Appellant’s behavior “very weird,” and got out of
the pool and changed into clothes.
At some point that day, FK’s mother relayed to SB that Appellant gave
good back rubs. Either in the kitchen with others present, or earlier in the day,
Appellant gave backrubs to both SB and FK. 7 While in the kitchen, Appellant
overheard a conversation about SB’s inverted nipple, which prompted him to
ask SB to show him her “boob” several times. SB testified she told Appellant
“there is no way I am showing you my boob. That’s not happening. I’m not
doing that.” Appellant approached FK on multiple occasions that afternoon to
be, in Appellant’s words, “his wingman” to help him convince SB to show him
her breast. FK refused and at one point told Appellant to “please go away”
because she “felt he was badgering [her] to make that happen.”
Before dinner, and while FK, FK’s mother, Appellant’s wife, and others
took a tour of nearby model homes, SB lay down alone on the bed in the room
she was sharing with FK. FK’s father stayed behind to finish preparing the
meal, and asked Appellant to tell SB that dinner was ready. According to FK’s
father, Appellant left the kitchen, entered SB’s room, and five to seven minutes
passed until Appellant returned to the kitchen.
SB testified she was using her cell phone and her back was to the door when
Appellant entered the bedroom and told her that dinner was ready. She replied
she would be out shortly. Appellant approached her from behind as she lay on
the bed and tickled up her leg. She felt Appellant’s body “coming on over” hers,
and was “frozen,” thinking, this was another “joke.” She asked Appellant,
“What are you doing? What is this, a joke? What is going on right now?” and

7SB testified on cross-examination that the backrub may have been earlier in the day
and she was unsure of the timeline.

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told Appellant, “This is not funny.” Appellant replied, “No. This is not a joke.
I’m not joking.” SB described that Appellant was “hovering” over her body
while telling her she was “gorgeous” and “need[ed] to make time for him,” and
that Appellant could “make this happen” if she babysat while Appellant’s wife
worked the night shift at her job.
SB noticed Appellant had an erection. She testified “things kept escalating”
as she tried to get off the bed, when Appellant moved her underwear and
“shoved his finger into [her] vagina.” SB felt Appellant’s knuckles as he digi-
tally penetrated her. Her genitals were uncomfortable because she was recov-
ering from a vaginal infection. SB told Appellant to “[g]et off of [her],” pushing
him away on his upper body and he pulled his fingers out of her. SB ran to the
bathroom, locked the door, and waited until she heard Appellant leave. She
then returned to the bedroom to get her phone and promptly tried calling, and
then texted, FK’s phone. SB texted FK to “[c]ome home right f[**]king now,”
and “[l]iterally right now I’m hyperventilating.” SB relayed that “[Appellant]
just put his fingers in [her] vagina and kissed [her],” and pleaded for FK to
“come home” because she was “freaking out,” “can’t breath[e,]” and was “bawl-
ing.” SB texted FK again, asking FK to “[c]ome home,” “please come home,” to
“[p]lease answer [her],” and relayed, “I’m hiding in your closet with the door
locked.” After getting no response from FK, SB tried calling FK’s mother, but
FK’s father picked up his wife’s phone and answered instead.
FK’s father testified about what happened when Appellant returned to the
kitchen and before he picked up his wife’s cell phone. He asked Appellant, “Is
everything all right?” and Appellant replied, “Yeah, everything is fine.” A cou-
ple of minutes later, FK’s father noticed his wife had left her cell phone behind
when it started to ring. He looked at the phone and saw SB was identified as
the caller, and thought it was odd she was calling from inside the house. He
answered the phone and SB asked him if he would “come down here please?”
and not to be, in his words, “too conspicuous about it.” FK’s father entered his
daughter’s bedroom where SB was staying and saw that SB was teary-eyed
and upset. He asked her what was wrong and SB replied, “He touched me . . . .
Yeah, he touched me. He put his fingers in my vagina.”
FK’s father returned to the kitchen and asked Appellant, “Did you touch
her inappropriately?” Appellant replied, “Yes,” and tried to elaborate, but FK’s
father told Appellant he needed to “get [his] s[**]t and leave now.” The group
that had left the house were returning as Appellant was leaving. Appellant
approached FK’s mother and said, “I think I owe you an apology. . . . There was
a misunderstanding between [SB] and me.” FK and her mother then went to
FK’s bedroom and found the door was locked. SB opened the door and was
crying. SB relayed to them that Appellant had touched her and put his fingers

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inside her vagina. SB reported the incident to her parents, and a civilian and
military investigation ensued.
At some point during the gathering of families on Father’s Day at FK’s
home, SB told FK she thought Appellant had a crush on her. FK found the idea
silly, because she would “never know a Major in the Air Force to have a crush
on an 18 year old girl.”
2. Law
Appellant was convicted of sexual assault by bodily harm in violation of
Article 120(b)(1)(B), UCMJ, 10 U.S.C. § 920(b)(1)(B), which required the Gov-
ernment to prove four elements beyond a reasonable doubt: (1) that Appellant
committed a sexual act upon SB by penetrating her vulva with his finger; (2)
that Appellant did so by causing bodily harm to SB, to wit: penetrating her
vulva with his finger; (3) that Appellant did so with an intent to gratify his
sexual desire; and (4) that Appellant did so without the consent of SB. 8 See
Manual for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶
45.b.(4)(b). “‘[B]odily harm’ means any offensive touching of another, however
slight, including any nonconsensual sexual act.” Article 120(g)(3), UCMJ, 10
U.S.C. § 920(g)(3). With regard to consent, the statute provides, “‛[C]onsent’
means a freely given agreement to the conduct at issue by a competent person.”
Article 120(g)(8)(A), UCMJ, 10 U.S.C. § 920(g)(8)(A). “Lack of consent may be
inferred based on the circumstances of the offense. All the surrounding circum-
stances are to be considered in determining whether a person gave consent, or
whether a person did not resist or ceased to resist only because of another per-
son’s actions.” Article 120(g)(8)(C), UCMJ, 10 U.S.C. § 920(g)(8)(C).
A court of criminal appeals may affirm only such findings of guilty “as it
finds correct in law and fact and determines, on the basis of the entire record,
should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “Article 66(c) re-
quires the Courts of Criminal Appeals to conduct a de novo review of legal and
factual sufficiency of the case.” United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment is limited to the evidence
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

8In a separate assignment of error, Appellant claims the specification fails to state an
offense because the element of consent lacked a mens rea requirement. We disagree.
“Congress clearly intended a general intent mens rea for Article 120(b)(1)(B),” United
States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019).

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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).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations 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).
3. Analysis 9
Appellant argues the evidence is insufficient because SB was not a credible
witness in that she did not attempt to push Appellant off of her sooner, and
because of the inherent improbability that Appellant could have committed the
act without her participation and, thus, consent. We conclude a reasonable
factfinder would find SB’s testimony and the supporting evidence both proba-
ble and convincing. SB’s testimony provided convincing proof of each of the
elements of the offense, to include that Appellant penetrated her vulva with
his finger and did so without SB’s consent and with intent to gratify his own
sexual desire. Other evidence lends support to her testimony and proof of the
charged offense, including SB’s actions moments after the assault that in-
cluded her texting FK that Appellant had “put his fingers in [her] vagina,” SB’s
demeanor as observed by FK and FK’s parents, and Appellant’s admission to
FK’s father that he touched SB inappropriately and to FK’s mother that Ap-
pellant owed her an apology.

9In his brief, Appellant’s counsel cites information that was not introduced in the find-
ings portion of trial for this court’s determination of the factual and legal sufficiency of
his conviction, and thus, this court cannot consider it. See United States v. Reed, 54
M.J. 37, 43–44 (C.A.A.F. 2000) (citations omitted) (The “record” refers to matters in-
troduced at trial. Matters outside the record may not be considered for factual or legal
sufficiency on appeal).

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Appellant also contends the Government failed to disprove that Appellant
labored under an honest and reasonable mistake of fact as to consent. Mistake
of fact as to consent is a defense to sexual assault. See R.C.M. 916(j)(1). It re-
quires that an appellant, due to ignorance or mistake, incorrectly believed that
another consented to the sexual conduct. See id. To be a viable defense, the
mistake of fact must have been honest and reasonable under all the circum-
stances. See id.; see generally United States v. Jones, 49 M.J. 85, 91 (C.A.A.F.
1998) (quoting United States v. Willis, 41 M.J. 435, 438 (C.A.A.F 1995)) (charge
of rape). Having just met before the weekend, Appellant and SB had little in-
teraction before the offense and none of it was mutually sexual or involved
activities unaccompanied by others. The settings were an office, a gym, and
gatherings of families including children at a restaurant for breakfast and later
at a co-worker’s home on Father’s Day. To be persuaded by Appellant’s argu-
ment that he was mistaken, a factfinder would have to discount evidence that
Appellant initiated sexual penetration of SB’s vulva with his finger when he
approached SB unannounced while she was alone in a bedroom with her back
to the door. FK’s father told Appellant to tone down Appellant’s sexual com-
ments and innuendo during SB’s visit. SB rebuffed his request that she show
Appellant her breasts, and FK told Appellant she would not be his “wingman”
to convince SB otherwise. None of Appellant’s interactions with SB before the
offense should have led him or a reasonable person to believe that SB would
consent to Appellant penetrating her vagina with his finger. On these facts we
find the Government proved beyond a reasonable doubt that Appellant was not
reasonably mistaken as to consent.
Considering the evidence in the light most favorable to the Prosecution, we
find that a rational factfinder could have found Appellant guilty beyond a rea-
sonable doubt of all the elements of sexual assault as charged. Furthermore,
after weighing all the evidence in the record of trial and having made allow-
ances for not having personally observed the witnesses, we are convinced of
Appellant’s guilt beyond a reasonable doubt. Therefore, we find Appellant’s
conviction both legally and factually sufficient.
B. Defense Motion for Continuance to Retain Civilian Counsel
1. Additional Background
The Charge and its two specifications were preferred on 31 January 2017
and an Article 32, UCMJ, 10 U.S.C. § 832, preliminary hearing took place on
3 February 2017. Appellant was informed of his right to counsel including the
right to be represented by civilian counsel of his own choosing at his own ex-
pense, R.C.M. 405(d)(3)(C), and elected to be represented by military counsel.
Appellant was arraigned on the docketed trial date of 11 July 2017. During
this Article 39(a), UCMJ, session, the first military judge informed Appellant

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of his right to retain civilian counsel under R.C.M. 506(a). After a defense con-
tinuance request to have access to a deployed witness, the trial was scheduled
to reconvene on Monday, 8 January 2018, to allow time for the Government to
obtain the unavailable witness 10 and produce discovery compelled by the first
military judge. Meanwhile, Appellant released both of his detailed military
counsel because they were set to begin new positions well before the new trial
date, 11 and two different military trial defense counsel were detailed to repre-
sent Appellant.
Towards the end of the nearly seven month period that trial was delayed,
Appellant avers he experienced growing unease about his military defense
counsel and his case. In late December 2017 he reached out to a lawyer friend
who advised Appellant to contact the CDC who would subsequently represent
Appellant in post-trial matters and this appeal. Appellant contacted the CDC
on Wednesday afternoon, 3 January 2018, and notified his military counsel on
Friday, 5 January 2018, of his intent to retain the CDC. That same day the
CDC signed a “Notice of Provisional Appearance” stating he was unavailable
to begin a contested trial on Monday.
The CDC stated in the notice he was “conditionally retained” to represent
Appellant “subject to the approval of the Presiding Military Judge.” The CDC
explained he “advised [Appellant] that [the CDC] was unavailable to begin a
contested GCM on Monday, 8 January 2018, and that the Military Judge would
have to approve a continuance.” The provisional notice mentioned that the
CDC discussed with Appellant “other motions and investigations that in [the
CDC’s] professional opinion would have to be done,” but did not indicate when
the CDC was available to appear in court. The notice mentioned the steps Ap-
pellant was taking to pay one-third of the CDC’s retainer fee by Monday, with
the rest paid not later than Friday, 12 January 2018.
On Saturday, 6 January 2018, Appellant’s military defense counsel filed a
motion to continue the case to give the CDC time to prepare for trial. Both the
Government and SB, through her detailed victim’s legal counsel (VLC), op-
posed the motion. Accompanying the motion was Appellant’s own affidavit ex-
plaining he hired the CDC because of discomfort with the preparedness and
experience of his military defense counsel.
On Monday, 8 January 2018, Judge Spath reconvened the court-martial as
scheduled and held a hearing on the motion. He asked Appellant by whom he

10 In the end, the witness did not testify.
11On 14 July 2017, Appellant released his first pair of military defense counsel. When
he did so, Appellant signed two written releases that advised him of his right to hire
and be represented by civilian defense counsel.

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wished to be represented at trial, and Appellant identified both his detailed
military defense counsel who were present and the CDC who was not. The CDC
testified by telephone that he first spoke to Appellant five days before trial.
The CDC explained he had formed an attorney-client relationship with Appel-
lant and that the “provisional” notice of representation was patterned on a
practice utilized in New York state courts. The CDC stated he would be avail-
able for trial during the week of 26 March 2018. On cross-examination, the
CDC stated he did not have any upcoming trials but was working on “four ha-
beas writs” 12 involving military trials and appeals that he needed to file before
20 March 2018. Both military counsel acknowledged they were prepared to
represent Appellant.
After the military judge denied the motion for continuance and the CDC
received Appellant’s fee, the CDC did not file a notice of appearance with the
trial court or otherwise indicate a change in the provisional nature of the notice
he gave or that he was unconditionally retained to represent Appellant at
trial. 13
2. Law
An accused has a Sixth Amendment right to counsel of choice. United States
v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (citations omitted). If an appellant
has been erroneously deprived of this right, then the “violation is not subject
to harmless-error analysis.” Id. at 152. A trial court nonetheless has “wide lat-
itude in balancing the right to counsel of choice against the needs of fairness
and against the demands of its calendar.” The United States Supreme Court
has observed:
Trial judges necessarily require a great deal of latitude in sched-
uling trials. Not the least of their problems is that of assembling
the witnesses, lawyers, and jurors at the same place at the same
time, and this burden counsels against continuances except for
compelling reasons. Consequently, broad discretion must be
granted trial courts on matters of continuances; only an unrea-
soning and arbitrary “insistence upon expeditiousness in the
face of a justifiable request for delay” violates the right to the
assistance of counsel.

12 Writs of habeas corpus. See All Writs Act, 28 U.S.C. § 1651(a).
13 In a post-trial declaration to this court, the CDC avers “[a]s the court-martial pro-
gressed, [the CDC] was in continuous contact either via telephone or email with [Ap-
pellant] and his detailed counsel, and assisting them ‘remotely’ on some of the legal
issues that were arising during the trial.”

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Morris v. Slappy, 461 U.S. 1, 11–12 (1983) (quoting Ungar v. Sarafite, 376 U.S.
575, 589 (1964)); United States v. Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003).
We review a military judge’s denial of a request for a continuance to be
represented by civilian counsel of choice for an abuse of discretion. United
States v. Wiest, 59 M.J. 276, 279 (C.A.A.F. 2004) (citing United States v.
Weisbeck, 50 M.J. 461, 464–66 (C.A.A.F. 1999)). In determining whether the
military judge abused his discretion, we consider the factors articulated in
United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997) (citation omitted). See
Wiest, 59 M.J. at 279 (citations omitted) (listing Miller factors). The factors
include:
surprise, nature of any evidence involved, timeliness of the re-
quest, substitute testimony or evidence, availability of witness
or evidence requested, length of continuance, prejudice to oppo-
nent, moving party received prior continuances, good faith of
moving party, use of reasonable diligence by moving party, pos-
sible impact on verdict, and prior notice.
Miller, 47 M.J. at 358 (quoting F. Gilligan and F. Lederer, Court-Martial Pro-
cedure, § 18–32.00, at 704 (1991)).
An abuse of discretion “requires more than just [a reviewing court’s] disa-
greement with the military judge’s decision.” United States v. Bess, 75 M.J. 70,
73 (C.A.A.F. 2016) (citing United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F.
2015)). An abuse of discretion occurs when the military judge’s findings of fact
are clearly erroneous, when an erroneous view of the law influenced his deci-
sion, or when his decision is “outside the range of choices reasonably arising
from the applicable facts and the law.” Id. (quoting Stellato, 74 M.J. at 480).
The challenged decision “must be arbitrary, fanciful, clearly unreasonable, or
clearly erroneous.” United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013)
(quoting United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)).
3. Military Judge’s Ruling Denying the Continuance
Trial was scheduled to commence on Monday, 8 January 2018, as agreed
upon by all parties in late July 2017. In an oral ruling at the Article 39(a),
UCMJ, session, on 8 January 2018, the military judge denied the Defense’s
motion for a continuance. The military judge supplemented his ruling on the
record, adding greater detail on Thursday, 11 January 2018, the last day of
trial. He found the parties agreed on 31 July 2017 to reconvene for trial the
week of 8 January 2018. Between 31 July 2017 and 5 January 2018, Appel-
lant’s military counsel participated in joint status updates and none mentioned
the potential for civilian counsel to represent Appellant. On Friday, 5 January
2018, the Defense notified the Government and military judge that the Defense

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would request a continuance. The military judge received this notice at 1622
hours on the last weekday before the 8 January 2018 trial date.
On Saturday, 5 January 2018, the CDC entered a notice of a provisional
appearance contingent on receipt of fees and a delay in the proceedings. The
CDC did not have any court appearances scheduled for the week of Appellant’s
trial. He did not make any efforts to travel to Patrick AFB in advance of trial, 14
and he did not formally enter an appearance while awaiting payment of his
retainer. The CDC had no trial obligations between the date of trial and 28
March 2018, 15 the date of the requested continuance, but he needed to file four
habeas petitions.
The military judge found the CDC did not enter a formal appearance after
he received the retainer fee from Appellant on 8 January 2018. He found the
March 2018 continuance date “a bit optimistic” bearing in mind that the CDC
indicated further investigations and motion practice would have to be done.
The military judge observed that the charge sheet had been served on Appel-
lant in March16 “and motion practice had already been completed in July of
2017.” The military judge noted that the CDC picked the March 2018 date
“with no discussion of availability of other counsel or other witnesses.”
After considering Appellant’s burden as the moving party, R.C.M. 906, and
relevant case law, the military judge denied Appellant’s continuance request.
The military judge considered whether fairness dictated he should grant the
request, with fairness assessed against Appellant’s Sixth Amendment right to
counsel. Citing Morris, the military judge observed the right is not absolute
and must be balanced against society’s interest in the efficient and expeditious
administration of justice. In performing this assessment, the military judge
found that he should consider a named victim’s right under Article 6b(a)(7),
UCMJ, 10 U.S.C. § 806b(a)(7), to have a proceeding free from unreasonable
delay, so long as the assertion of that right did not deprive an accused of his
Sixth Amendment right. The military judge stated that even if a reviewing
court found that SB lacked standing on a continuance motion, his analysis
would remain the same.

14 The CDC averred that a snowstorm at the CDC’s location when trial began prohib-
ited travel to Patrick AFB.
15 This finding was error. The date the CDC said he was available was 26 March 2018.
16The referred charge and specifications were served on 6 March 2017. The military
judge misstated the service date as “March of ’16.”

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Before analyzing the Miller factors, the military judge found that Appellant
was informed of his right to retain civilian counsel multiple times and had suf-
ficient opportunity to retain civilian counsel of his choice. Considering the sig-
nificant delay already in the case, and the fact that Appellant had sufficient
opportunity to obtain civilian counsel, the military judge found that proceeding
to trial was “neither unreasonable [n]or arbitrary.”
The military judge then applied the Miller factors he considered germane
to consideration of a continuance 17 and denied Appellant’s request. As to each
factor, he found as follows:
a. Surprise
The timing of Appellant’s continuance request was a surprise to the trial
court and to the Government because it came at the end of the last business
day before trial was set to commence. The military judge found this factor
weighed against Appellant, citing the multiple times Appellant “was informed
of, indicated he understood, and exercised his rights to counsel.”
b. Timeliness of the request
The military judge found Appellant “had more than a reasonable ability
and opportunity to secure counsel of his choice” after July 2017 and that “[h]e
failed to do so in a timely manner despite being advised of his rights on multi-
ple occasions and exercising them on at least one occasion.” Appellant’s request
was untimely, he found, because Appellant did not request the continuance
until the end of the last business day before trial, after the parties agreed on
31 July 2017 to reconvene for trial the week of 8 January 2018. The military
judge found this factor weighed against Appellant.
c. Availability of witness or evidence requested
While noting that Appellant’s continuance request was not based on a re-
quest for evidence or a witness, the military judge noted that the parties agreed
to the January 2018 date, and that further delay would require the Govern-
ment to rearrange witness travel. The military judge took note that scheduling
of the 8 January 2018 trial included consideration of the availability of a wit-
ness whose presence Appellant had requested. This factor weighed against Ap-
pellant.
d. Length of continuance

17The military judge found two factors inapplicable, and they were not part of his
analysis: the nature of any evidence involved and the availability of substitute testi-
mony or evidence. See Miller, 47 M.J. at 358 (quoting F. Gilligan, Court-Martial Pro-
cedure, § 18–32.00, at 704).

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The military judge considered that Appellant’s CDC requested a delay until
the last week of March 2018, but this date did not account for the availability
of other witnesses, experts, and the Government counsel. Based on the CDC’s
indication that further investigation and motion practice would have to be
done, the military judge considered the March date “optimistic.” He found a
nearly three-month delay after a six-month delay weighed against Appellant
especially considering that the CDC did not have any trials during this period
that justified the delay.
e. Prejudice to opponent
The military judge found the Government had “some limited right in the
orderly administration of justice.” He found a concern that delay in timely
presentation of testimony on the merits could affect witness testimony and the
memory on which it depends. In assessing this factor, he considered SB’s Arti-
cle 6b, UCMJ, right to a proceeding free from unreasonable delay that SB’s
VLC asserted on her behalf, but observed “[t]his factor didn’t carry very much
weight in [his] analysis.” The military judge found what little weight it did
have favored the Government.
f. Moving party received prior continuance
The military judge found Appellant had already been granted a six-month
continuance to secure the attendance of a possible witness and to align a new
trial date with the schedules of counsel for both sides and all witnesses. The
military judge noted the original docketed 11 July 2017 trial date was estab-
lished in April 2017. The military judge found this factor weighed against Ap-
pellant
g. Good faith of moving party
The military judge contrasted the good faith of Appellant’s military coun-
sel—who notified the military judge as soon as they were aware Appellant
planned to hire the CDC—with Appellant’s actions, which he found “problem-
atic.” Specifically, the military judge referred to Appellant’s decision to wait
until the last business day before trial to be represented by the CDC, which
generated the request. The military judge found this factor was “reasonably
neutral” and stated “I have no doubt the party acted in good faith.” The mili-
tary judge contrasted again the good faith of Appellant with that of the CDC
who took on representation for a trial he knew he could not attend that was
starting the next business day. The military judge took into account that the
CDC had not entered an appearance even after he had been retained and the
CDC’s retainer payment was no longer pending.
h. Use of reasonable diligence by moving party

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The military judge found Appellant did not show diligence in making the
request because “[i]t was provided to this court [at] 1622 hours on 5 January
2018, the very end of the last business day before trial was scheduled to com-
mence. At best, initial contact was made with civilian counsel by the accused
on 3 January 2018.”
i. Possible impact on verdict
The military judge found two qualified military defense counsel repre-
sented Appellant, including an experienced senior defense counsel. He noted
both counsel proffered they were prepared for trial and that they would, and
did, provide effective representation. The military judge caveated his analysis
of this factor noting that his assessment that Appellant “did receive effective
representation” was “not relevant to this ruling” because he denied the contin-
uance before he could observe the effectiveness of counsel. The military judge
found that “[a]dding a counsel is going to have no appreciable effect on the
verdict simply because he happens to be a civilian counsel,” and appeared to
weigh this factor against Appellant without stating as such.
j. Prior notice
The military judge found there was no issue of prior notice of the January
2018 proceeding, and this factor weighed against Appellant. The date trial was
scheduled to reconvene was established on 31 July 2017. Appellant had been
on notice of the 8 January 2018 trial date for over five months.
4. Analysis
The military judge did not abuse his discretion when he denied the De-
fense’s motion. The military judge detailed his consideration of the Miller fac-
tors in his ruling, and the weight of the factors fell in favor of the Government.
Miller examines a number of factors useful in determining whether a judge has
abused his discretion. We, too, consider the application of those factors bearing
in mind that “[t]here are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process.” Ungar, 376 U.S. at 589.
Although the right of the victim to a proceeding free from unreasonable delay
is not among the listed factors, the military judge appropriately considered it
when determining if there was prejudice to Government and did not give the
matter undue weight.
A fair reading of the record suggests that there was no “unreasoning and
arbitrary ‘insistence upon expeditiousness in the face of a justifiable request
for delay.’” Morris, 461 U.S. at 11–12 (quoting Ungar, 376 U.S. at 589). If there
was one controlling factor in the ruling, it is whether Appellant had reasonable
opportunity to secure counsel of choice, see Miller, 47 M.J. at 358, and the mil-
itary judge found Appellant had been given that opportunity. That Appellant

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failed to secure counsel of choice in a timely manner was relevant to the mili-
tary judge’s “wide latitude” to balance the right to counsel against the court’s
calendar, see Gonzalez-Lopez, 548 U.S. at 151 (citation omitted). Indeed, the
focus of the ruling was that Appellant had been informed of his right to be
represented by civilian counsel and did not begin searching for civilian repre-
sentation until late December 2017, after a lengthy continuance had been
granted, and then secured provisional representation on the eve of trial recon-
vening.
The military judge gave appropriate consideration to the provisional nature
of the CDC’s notice of appearance, which stated that the CDC was “condition-
ally retained” to represent Appellant “subject to the approval of the Presiding
Military Judge.” Both the timing and substance of the notice were properly
relied on by the military judge. The record shows Appellant’s request for a
nearly three-month delay was not based on a need to deconflict the CDC’s trial
schedule—he had none, and offered little assurance that a third continuance
would not be necessary.
The military judge made findings of fact supported by the evidence, applied
those facts to the appropriate law, and used the Miller factors to conclude Ap-
pellant’s continuance request was unreasonable. The military judge’s applica-
tion of the Miller factors and his decision to deny the request was not “clearly
untenable,” Miller, 47 M.J. at 358 (quoting United States v. Travers, 25 M.J.
61, 62 (C.M.A. 1987)), or “outside the range of choices reasonably arising from
the applicable facts and the law,” Bess, 75 M.J. at 73 (quoting Stellato, 74 M.J.
at 480). We conclude his decision was neither arbitrary, fanciful, clearly un-
reasonable, nor clearly erroneous. See Solomon, 72 M.J. at 179 (quoting White,
69 M.J. at 239).
C. Alleged Denial of Right to a Public Trial
On two occasions, the first military judge held an Article 39(a), UCMJ, ses-
sion and closed the courtroom to spectators to determine whether evidence that
might qualify as sexual behavior or predisposition was admissible in Appel-
lant’s trial. See Mil. R. Evid. 412(c)(2) (“Before admitting evidence under this
rule, the military judge must conduct a hearing, which shall be closed.”). The
record shows spectators departed the courtroom on both occasions before the
military judge took evidence to decide admissibility.
Appellant did not object to the closures nor did any member of the public.
Before the first closure and while SB was on the witness stand, the military
judge asked the Defense, “So, my understanding is we want to take up some
additional matters in closed session than [sic] at this time?” The trial defense
counsel who at the time was conducting a direct examination of SB replied,
“Yes, sir,” and continued his examination of SB in the closed session. After

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going back into open session of the court and before the second closure, the
military judge notified the parties of a matter he would consider in a closed
session and then asked the Defense if there was “anything further?” before
closing the court. The trial defense counsel replied, “No, sir, not in this open
session.” In the closed session that followed, the military judge, counsel for both
parties, and SB’s VLC discussed a matter that SB’s VLC claimed was protected
by his attorney-client privilege with SB, as well as a matter involving SB’s
medical and cell phone records as they related to the Government’s discovery
obligation and Mil. R. Evid. 412 admissibility.
Appellant contends for the first time on appeal that he was denied his Sixth
Amendment right to a public trial and the military judge erred in failing to
conduct the four-part closure analysis under R.C.M. 806(b)(5). See also Waller
v. Georgia, 467 U.S. 39 (1984) (holding state court failed to give proper weight
to a criminal defendant’s Sixth Amendment right to a public trial at a weeklong
suppression hearing that was closed over defense objection).
Appellant observes that the military judge and all counsel apparently just
assumed that the closure and sealing provisions of Mil. R. Evid. 412(c)(2) con-
trolled the matter. We find Appellant waived this issue by failing to object so
that the military judge might conduct the closure analysis, which we decline
to conduct after the fact. It is the military judge, not a court of criminal appeals,
that “makes case-specific findings on the record justifying closure.” See R.C.M.
806(b)(5). We decline Appellant’s suggestion that we should find structural er-
ror and remand for a new trial because this was not done.
Appellant’s failure to object at trial waived the right to challenge the closed
hearing requirement of Mil. R. Evid. 412(c)(2), and thus leaves no error for this
court to correct on appeal. See Levine v. United States, 362 U.S. 610, 619–20
(1960) (counsel and client forfeited public trial challenge by failing to ask trial
judge to open the proceedings); see also Peretz v. United States, 501 U.S. 923,
936 (1991) (“failure to object to closing of courtroom is waiver of right to public
trial” (citing Levine, 362 U.S. at 619)). In reaching this result we recognize that
in United States v. Hershey, a case decided 25 years after the Supreme Court
decided Levine, our superior court applied a more stringent test than the Su-
preme Court did in Levine, requiring an appellant’s waiver of a public trial to
be “intentional and knowing.” 20 M.J. 433, 437 (C.M.A. 1985) (quoting Marti-
neau v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979)) (additional citation omit-
ted) (refusing to apply the doctrine of waiver). Hershey relied on a decision by
the United States Court of Appeals for the First Circuit, Martineau v. Perrin,
601 F.2d 1196, 1200 (1st Cir. 1979), as authority for this conclusion, and cited
Supreme Court precedent that predated Levine for support. 18 Hershey, 20 M.J.

18 Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

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at 437. The Supreme Court’s later decision in Peretz and those of several fed-
eral circuits including the First Circuit cast doubt on the validity of Hershey as
precedent. 19
Even if Hershey remains the law of this jurisdiction after the Supreme
Court in Peretz followed the Court’s precedent in Levine, we still find waiver.
The trial defense counsel did not just fail to object, but acceded both times to
the closed session. Before the first closure, Appellant’s counsel agreed with the
military judge’s understanding that the Defense wanted to continue its direct
examination of a witness in a closed session. Before the second closure, counsel
agreed there was nothing further to discuss in the open session. Both the state-
ments and actions of counsel evince an “intentional and knowing” waiver on
Appellant’s behalf. See Hershey, 20 M.J. at 437. Thus, Appellant’s public trial
challenge to Mil. R. Evid. 412 was waived, see id., and we determine to leave
the waiver intact, see United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016)
(citation omitted) (courts of criminal appeals “are required to assess the entire
record to determine whether to leave an accused’s waiver intact, or to correct
the error.”).
D. Challenge to the Reasonable Doubt Instruction
Also for the first time on appeal, and what appears to be an issue of first
impression, Appellant challenges the reasonable doubt instruction the military
judge gave as constitutionally unsound. Appellant claims it was error to in-
struct that a reasonable doubt is one “arising from the state of the evidence,”
as the military judge stated in both his preliminary instructions to the mem-
bers and again after the close of evidence. Appellant claims he was denied a
fair trial because the military judge erred in failing to instruct that reasonable
doubt may arise from a lack of evidence as opposed to the state of the evidence.
Appellant argues we should find structural error and remand for a new trial.

19 See, e.g., United States v. Reagan, 725 F.3d 471, 488–89 (5th Cir. 2013) (knowledge
of courtroom closure and failure to object unreviewable), cert. denied, 572 U.S. 1003
(2014); United States v. Christi, 682 F.3d 138, 142–43 (1st Cir. 2012) (“In Peretz, the
Supreme Court expressly cited [Levine v. United States, 362 U.S. 610, 619 (1960)] for
the proposition that a failure to object to closing a courtroom waives any claim of in-
fringement to a right of public trial.”), cert. denied, 568 U.S. 988 (2012); Johnson v.
Sherry, 586 F.3d 439, 444 (6th Cir. 2009) (If the litigant does not assert the right to a
public trial “in a timely fashion, he is foreclosed.” (quoting Freytag v. Commissioner,
501 U.S. 868, 896 (1991)), overruled in part on other grounds by Weaver v. Massachu-
setts, 137 S. Ct. 1899, 1907 (2017).

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Before trial, Appellant advocated for a modified reasonable doubt instruc-
tion and raised an objection to the standard instruction that is unlike the chal-
lenge he makes now. 20 After the close of the Government’s case, the military
judge requested proposed instructions from counsel for both parties. Appellant
requested a mistake of fact instruction, but did not seek a modified reasonable
doubt instruction as he did before trial. After the military judge circulated his
draft instructions, Appellant asked for an instruction regarding his decision
not to testify and again proposed no modification to the reasonable doubt in-
struction. The military judge asked whether the Defense had any objections or
requests for additional instructions. Trial defense counsel replied, “No. Your
Honor.” After the arguments of counsel the military judge again asked the De-
fense if there were any objections to the findings instructions or request for
additional instructions. Counsel again answered in the negative.
Whether an appellant has waived an objection to a findings instruction is
a legal question that this court reviews de novo. United States v. Davis, ___
M.J. ___ , No. 19-0104, 2020 CAAF LEXIS 76, at *6–7 (C.A.A.F. 12 Feb. 2020)
(“By ‘expressly and unequivocally acquiescing’ to the military judge’s instruc-
tions, Appellant waived all objections to the instructions.” (quoting United
States v. Smith, 9 C.M.R. 70, 72 (C.M.A. 1953))). The CAAF in Davis repeated
what the court has previously explained is the significance of waiver, as op-
posed to forfeiture:
“Waiver is different from forfeiture. Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the in-
tentional relinquishment or abandonment of a known right.”
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). Con-
sequently, while we review forfeited issues for plain error, “we
cannot review waived issues at all because a valid waiver leaves
no error for us to correct on appeal.” United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009).
Id. at *6 (internal quotation marks omitted).
Before trial, Appellant suggested a modification to the reasonable doubt
instruction without identifying changes to the language he now claims is con-
stitutionally deficient. Then, at trial he twice declined to propose an instruction
like the one he proposes now, and twice declined to object to the instruction
and offered no additional instructions when prompted by the military judge.

20Appellant moved for appropriate relief to instruct that the members “should,” and
not “must,” convict if they are convinced of Appellant’s guilt beyond a reasonable doubt.
The first military judge denied the motion in an Article 39(a), UCMJ, session without
members. The military judge who presided on the merits instructed that the members
“may find” Appellant guilty of an offense if they are firmly convinced of guilt.

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On these facts, Appellant expressly and unequivocally acquiesced to the rea-
sonable doubt instruction the military judge gave to the members. See Davis
at *7 (citing United States v. Wall, 349 F.3d 18, 24 (1st Cir. 2003) (“[C]ounsel
twice confirmed upon inquiry from the judge that he had ‘no objection and no
additional requests [regarding the instructions].’ Having directly bypassed an
offered opportunity to challenge and perhaps modify the instructions, appel-
lant waived any right to object to them on appeal.” (alteration in original))).
Appellant thus waived the objection he raises on appeal, see id., and we deter-
mine to leave his waiver intact, see Chin, 75 M.J. at 223 (citation omitted).
E. Sentencing
Appellant assigns five errors he claims occurred in sentencing. First, Ap-
pellant claims he was denied his Sixth Amendment right to confront SB after
she read an unsworn victim impact statement in presentencing. Second, he
alleges the military judge abused his discretion by sustaining an objection to
documents Appellant wanted to attach to his written unsworn statement.
Third, he claims he was deprived of due process and equal protection under the
law in violation of his rights under the Fifth Amendment because he was pro-
hibited from including the attachments in his unsworn statement, and yet SB
could discuss the collateral consequences of Appellant’s crime in her unsworn
statement. Fourth, he claims that it was error for the military judge to allow
Appellant to mention the consequence to him of having to register as a sex
offender, and then instruct the members to disregard those consequences. 21
Lastly, Appellant claims his sentence that includes a mandatory dismissal was
unconstitutional and inappropriately severe.
1. Additional Background
After the Government rested its sentencing case, SB read an unsworn
statement. She described how “a lot of things changed” in her life after the
sexual assault including her relationship with her best friend and her best
friend’s family. It also affected her “entire freshman year of college,” which was
“full of sadness, loss, doubt, and a lack of self-esteem.” In the summer after her
first year “she couldn’t hold [her] part-time job because of [her] distress for
strangers and fear of being alone.” SB thanked the members for their “gift of
closure” and conveyed optimism that with the trial over she could restore her
friendship with her best friend, and could “start to live life as a normal college

21Appellant’s appellate counsel does not assert instructional error on its own, but in-
cludes it as a footnote to the assignment of error that alleges the military judge erred
when he excluded the two attachments. We consider the issue even though counsel did
not raise a distinct claim that the military judge abused his discretion. See JT. CT.
CRIM. APP. R. 18(a) (effective 1 Aug. 2019) (“Appellate Counsel for the accused may file
assignments of error, setting forth separately each error assigned.”).

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student” without interruptions to talk to investigators and attorneys. The mil-
itary judge prefaced SB’s statement with an instruction to the members about
how they could use the information SB presented:
The weight and significance to be attached to an unsworn state-
ment rests with the sound discretion of each court member. You
may consider that the statement is not under oath, it’s [sic] in-
herent probability or improbability, whether it is supported or
contradicted by evidence in the case, as well as any other matter
which may have a bearing upon its credibility. In weighing and
[sic] unsworn statement you are expected to use your common
sense, and your knowledge of human nature, and the ways of the
world.
In the presentencing proceeding, Appellant elected to give a verbal un-
sworn statement in response to questions that were put to him by his counsel.
The military judge first gave an instruction about the unsworn statement that
was similar to the one he gave before SB’s statement. Appellant said he
thought about the day of the incident “[e]very day,” and how “one lapse of judg-
ment” “can screw everything up.” He acknowledged understanding he would
be a “registered sex offender just based on this conviction” 22 and that his status
would impact his ability to go to meetings at his children’s school, and also to
be present at his children’s gymnastics and cheerleading practices. Appellant
explained to the members this was because, based on his understanding, “a
registered sex offender isn’t allowed anywhere near schools or anything like
that regardless of it being a minor or an adult offense,” and these limitations
would last a “lifetime.” Appellant told the members that the mandatory dis-
missal “as well as being a registered sex offender” would make it hard for him
to find a job. He emphasized, that no matter how much time he would spend
confined, “a dismissal and having to register is going to affect everything.”
At the end of Appellant’s verbal presentation, the trial defense counsel of-
fered Appellant’s written unsworn statement that was substantially the same
as Appellant’s verbal statement and marked it as a Defense Exhibit. The writ-
ten presentation as offered included two attachments: a 5-page appendix to a

22 The trial defense counsel asked, “Now you know you’ll have to be a registered sex
offender just based on this conviction, correct?” Appellant answered, “Yes, ma’am.”

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Department of Defense Instruction (DoDI) listing offenses that require sex-of-
fender processing; 23 and a 22-page article about the collateral consequences of
sex-offender registry laws. 24 The trial counsel objected to the inclusion of these
attachments on grounds that they were not Appellant’s statements. Trial de-
fense counsel defended their inclusion, in part, arguing it was the Defense’s
“understanding that [the members] are going to be given an instruction, essen-
tially, to disregard this as part of the[ir] deliberation[s]” and that the instruc-
tion would place the attachments “in the proper context.” The military judge
sustained the objection for two reasons: (1) neither document was Appellant’s
own statement; and (2) admitting them as an exhibit and then charging the
members to disregard collateral consequences of sex offender registration re-
quirements in arriving at a sentence was inapposite. The military judge al-
lowed the Defense to publish Appellant’s written unsworn statement without
the attachments that was marked as a Defense Exhibit. He instructed the
members it was part of Appellant’s unsworn statement and reminded them of
the instructions he had given earlier regarding unsworn statements.
Trial defense counsel did not object to the military judge’s sentencing in-
structions, which included this description of sex-offender registration require-
ments and that collateral consequences of Appellant’s conviction should not be
part of the members’ deliberations in reaching a sentence: 25
Under DOD instructions when convicted of certain offenses, in-
cluding the offense here, the accused must register as a sex of-
fender for the appropriate authorities and the jurisdiction of
which he resides, works, or goes to school. Such registration is
required in all 50 states. The requirements may differ between
jurisdictions. Thus, specific requirements are not necessarily
predictable. It is not your duty to attempt to predict sex offender
registration requirements or the consequences thereof.
While the accused is permitted to address these matters . . . in
an unsworn statement, these possible collateral consequences
should not be part of your deliberations in arriving at a sentence.
Your duty is to adjudge an appropriate sentence for this accused

23Department of Defense Instruction 1325.07, Administration of Military Correctional
Facilities and Clemency and Parole Authority, Encl. 2, App. 4 (11 Mar. 2013) (“Listing
of Offenses Requiring Sex Offender Processing”).
24Erika D. Frenzel, Understanding Collateral Consequences of Registry Laws: An Ex-
amination of the Perceptions of Sex Offender Registrants, 11 JUST. POL’Y J. 2 (Fall
2014).
25The instruction was modeled on the sentencing instructions in the Military Judges’
Benchbook, Dept. of the Army Pamphlet 27-9 at 75 (10 Sep. 2014).

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based upon the offense for which he has been found guilty that
you regard as fair and just when it is imposed and not one whose
fairness depends on possible requirements of sex offender regis-
tration and the consequences thereof in certain locations in the
future.
Before issuing the above instruction to the members, the military judge
gave both parties the opportunity to discuss his proposed sentencing instruc-
tions, including the one he gave in response to Appellant’s unsworn statement
regarding sex offender registration. Afterwards, in an Article 39(a), UCMJ,
session, the military judge asked whether the Defense had any objections or
requests for additional instructions. Other than a request to highlight a matter
in mitigation involving Appellant’s family, the Defense responded, “And that’s
it, Your Honor.” After a brief recess during which the military judge finalized
his instructions, the military judge asked again if the Defense had any objec-
tions or request for additional instructions. The trial defense counsel replied,
“No, Your Honor.” After argument by both sides, the military judge again
asked if the Defense had any objections or request for additional instructions.
The Defense replied it had no objections to the instructions that were given.
2. Victim’s Unsworn Statement and Confrontation
Appellant claims R.C.M. 1001A(e), which authorizes a crime victim to give
an unsworn statement in presentencing, is unconstitutional on its face and as
applied on grounds that it deprives Appellant and those similarly situated of
their Sixth Amendment right of confrontation at a critical stage of a criminal
trial. Although Appellant did not object at trial, under any standard of review
we disagree.
“[T]he Sixth Amendment right of confrontation does not apply to the
presentencing portion of a non-capital court-martial.” United States v. McDon-
ald, 55 M.J. 173, 177 (C.A.A.F. 2001). In McDonald, a three-judge majority
noted that “Congress would not be disabled from changing the sentencing pro-
cedures in the military.” Id. at 177. Judge Sullivan, concurring in the result,
agreed with the majority that “the Sixth Amendment does not require an ad-
versarial sentencing proceeding with a right of confrontation.” Id. at 179 (Sul-
livan, J., concurring) (citation omitted).
In 2013, Congress revised presentencing procedures by enacting Article
6b(a)(4)(B), UCMJ, 10 U.S.C. § 6b(a)(4)(B), 26 to give a crime victim the right to

26National Defense Authorization Act (NDAA) for Fiscal Year 2014 (FY14), Pub. L.
No. 113–66, § 1701, 127 Stat. 672, 952 (2013).

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 United States v. Snyder, No. ACM 39470

be reasonably heard. In a 2015 amendment to the Manual for Courts-Martial,
United States, 27 R.C.M. 1001A was added to implement Article 6b(a)(4)(B),
UCMJ, and to allow a victim to make an unsworn statement that is not subject
to cross-examination, though either party may “rebut any statements of facts
therein.” R.C.M. 1001A(e). Accordingly, the right to confrontation did not ex-
tend to the presentencing proceeding of Appellant’s court-martial, and we find
no error.
3. Exclusion of Attachments to Appellant’s Unsworn Statement
Appellant maintains the military judge erred in ruling to exclude the at-
tachments to Appellant’s written unsworn statement that referenced sex of-
fender registration and its consequences. 28 Appellant claims the attachments
would have explained the consequences of the Federal Sexual Offender Regis-
tration and Notification Act (SORNA) 29 to the factfinder and were permissible
matters in mitigation under R.C.M. 1001(c)(1)(B).
Our superior court has held that the consequences of sex offender registra-
tion are not a proper consideration for sentencing. United States v. Talkington,
73 M.J. 212, 216 (C.A.A.F. 2014) (addressing a military judge’s instruction re-
garding an appellant’s unsworn statement and observing that the proper focus
of sentencing is on the offense and the character of the accused, and “to prevent
the waters of the military sentencing process from being muddied by an un-
ending catalogue of administrative information” (quoting United States v.
Rosato, 32 M.J. 93, 96 (C.M.A. 1991)) (internal quotation marks omitted)). Alt-
hough an appellant may reference sex offender registration in his unsworn
statement, id. at 217 (citations omitted), we find no authority and Appellant
cites none for the proposition that an appellant has an unfettered right to at-
tach anything he wants to an unsworn statement and then have it marked as
an exhibit and admitted into evidence, or otherwise presented to the factfinder,
to determine an appropriate sentence.

27On 17 June 2015, the President signed Executive Order 13,696 (“2015 Amendments
to the Manual for Courts-Martial, United States”). Exec. Order No. 13,696, 80 Fed.
Reg. 35,783 (22 Jun. 2015).
28Appellant further claims he was deprived of due process and equal protection under
the law, U.S. CONST. amend. V, because he was prohibited from including the attach-
ments, and yet SB could discuss the “collateral consequences” of Appellant’s crime
through her unsworn victim impact statement. SB’s victim impact statement ad-
dressed victim impact matters authorized by R.C.M. 1001A. We find this issue does
not require further discussion or warrant relief. See United States v. Matias, 25 M.J.
356, 361 (C.M.A. 1987).
29Sex Offender Registration and Notification Act, 34 U.S.C. §§ 20901–962, formerly 42
U.S.C. §§ 16901–991.

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The plain language of R.C.M. 1001(c)(2)(C) allows for an unsworn state-
ment given “by the accused,” his counsel, or both. Consistent with the rule, the
military judge did not preclude Appellant from commenting on sex offender
registration requirements, which Appellant brought to the attention of the
members in his verbal unsworn statement and again in a written unsworn
statement that the military judge admitted as a Defense Exhibit. The DoDI
appendix and journal article are neither a statement by Appellant nor by coun-
sel on his behalf and are instead the statements of others. We conclude that
the military judge did not abuse his discretion in excluding evidence of state-
ments not written by Appellant, which contained inadmissible information
about collateral consequences of a court-martial conviction.
4. Instruction on Sex Offender Registration
At trial, Appellant’s counsel argued that the attachments at issue were
“within the scope” of the permissible bounds of an unsworn statement and that,
as with Appellant’s own statements about sex offender registration, in due
course the military judge would just instruct the members to disregard the
attachments as part of their deliberations. Although the trial defense counsel
did not object to the limiting instruction the military judge gave, on appeal
Appellant claims the military judge erred in giving the instruction. 30
While an appellant’s right of allocution in presentencing may be very broad,
a military judge may provide instructions to the members to limit his state-
ments and place them in their proper context. See United States v. Grill, 48
M.J. 131, 133 (C.A.A.F. 1998). In Talkington, our superior court held that sex
offender registration is a collateral consequence of the conviction alone and has
no causal relationship to the sentence imposed for the offense. 73 M.J. at 216–
17. Thus, while an accused is permitted to raise this collateral consequence in
his unsworn statement, “the military judge may instruct the members essen-
tially to disregard the collateral consequence in arriving at an appropriate sen-
tence for an accused.” Id. at 213 (citations omitted).

30Appellant’s appellate counsel claims as an assigned error that the instruction, inter
alia, “amounts to legal schizophrenia”:
On one hand the members are told that the Accused can bring unsworn
“information” to their attention; on the other hand they are then in-
structed to ignore it versus giving it “appropriate consideration.” The
ultimate effect on the members, and thus the Accused, is that they re-
ceived no coherent or consistent judicial guidance or “instructions.”
Furthermore, Appellant claims the instruction was “simply erroneous as a matter of
law” in reply to the Government’s answer.

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Appellant is resolute in his appeal that Talkington was wrongly decided
and the military judge erred even if he “considered himself bound by it.” Even
so, Talkington holds that the military judge is authorized to place sex offender
registration in its proper context by informing the members that it is permis-
sible for an accused to address sex offender registration in an unsworn state-
ment, while also informing them that possible collateral consequences of a con-
viction should play no part in their deliberations. Id. at 218 (citations omitted).
Considering the holding in Talkington, we find Appellant waived our re-
view of the limiting instruction now complained of by making sex offender reg-
istration a key part of both unsworn statements, and conclude there is no error
to correct on appeal. Whether an appellant has waived an objection to an in-
struction is a legal question that this court reviews de novo. See Davis, 2020
CAAF LEXIS 76, at *6–7 (findings instruction waived). In presentencing, the
defense strategy was designed to highlight Appellant’s understanding of hav-
ing to register as a sex offender as a consequence of his conviction for sexual
assault. When contesting the military judge’s ruling on the inadmissible at-
tachments, his counsel stated it was “so important” for Appellant to be able to
“bring up [having to register as a sex offender] as a matter in his unsworn
statement.” A key argument the Defense made on this point was that collateral
information should be permitted to be given to the members “understanding
that [the members] are going to be given an instruction, essentially, to disre-
gard [registration] as part of the[ir] deliberation[s].” To this end, Appellant re-
viewed the draft instructions at trial and was twice asked if there was any
objection or request for additional instructions. Both times Appellant answered
in the negative. On these facts, we find Appellant conceded to the instruction
he now objects to on appeal. Appellant thus waived our consideration of the
issue, see id., and we determine to leave his waiver intact, see Chin, 75 M.J. at
223 (citation omitted).
5. Mandatory Dismissal Required by Article 56(b)(1), UCMJ
Appellant claims his sentence that included a dismissal required by Article
56(b)(1), UCMJ, 10 U.S.C. § 856(b)(1), 31 violates his right to equal protection
under the Fifth Amendment. 32 Appellant argues that an officer who “stabs
someone with a hunting knife” would not be required to be so punished, and it

31 The NDAA for Fiscal Year 2014 modified Article 56, UCMJ, 10 U.S.C. § 856, and
required that the punishment for, inter alia, violations of Article 120(b) “must include,
at a minimum, dismissal or dishonorable discharge,” subject to exceptions not relevant
to Appellant’s case. Pub. L. No. 113–66, § 1705(a)(1), 127 Stat. 672, 959 (2013).
32 U.S. CONST. amend. V.

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follows, Appellant contends, that his sentence that included a mandatory dis-
missal for sexual assault is “arbitrary, capricious, and unconstitutional.”
We are unpersuaded by Appellant’s analogy and find his sentence is not
unconstitutional on grounds that his punishment included a mandatory dis-
missal. In Chapman v. United States, 500 U.S. 453, 467 (1991), the Supreme
Court observed that a statutory sentencing scheme that eschewed “individual
degrees of culpability . . . would clearly be constitutional.” The Supreme Court
noted a statute that imposed a fixed sentence for distributing any quantity of
lysergic acid diethylamide (LSD), in any form, with any carrier, would be con-
stitutional. Id. It follows that Congress has the power to require a minimum
sentence for sexual assault as it does a fixed sentence for LSD. It also follows
that whether Congress commanded a minimum sentence for an unrelated of-
fense (e.g. homicide or assault) has no bearing on the constitutionality of a
minimum sentence of a punitive discharge for sexual assault.
The Supreme Court explained that “[a] sentencing scheme providing for
‘individualized sentences rests not on constitutional commands, but on public
policy enacted into statutes.’” Id. at 467 (quoting Lockett v. Ohio, 438 U.S. 586,
604–05 (1978)). “Congress has the power to define criminal punishments with-
out giving the courts any sentencing discretion,” and in fact, “[d]eterminate
sentences were found in this country’s penal codes from its inception.” Id. (ci-
tations omitted). Although mandatory minimum sentencing schemes “fail to
account for the unique circumstances of offenders who warrant a lesser pen-
alty,” the Supreme Court has nonetheless held them constitutional. Harris v.
United States, 536 U.S. 545, 568–69 (2002), overruled on other grounds by Al-
leyne v. United States, 570 U.S. 99, 103 (2013) (any fact that increases the
mandatory minimum must be submitted to the jury); see also Harmelin v.
Michigan, 501 U.S. 957, 996 (1991) (“We have drawn the line of required indi-
vidualized sentencing at capital cases, and see no basis for extending it fur-
ther.”)
Article 56(b)(1), UCMJ, commands that Appellant’s punishment must in-
clude, at a minimum, dismissal from the service. This is akin to Article of War
95, the predecessor of Article 133, UCMJ, 10 U.S.C. § 933, in which Congress
originally provided that “[a]ny officer or cadet who is convicted of conduct un-
becoming an officer and a gentleman shall be dismissed from the service,”
United States v. Timberlake, 18 M.J. 371, 377 (C.M.A. 1984) (Everett, C.J.,
concurring) (alteration in original). The law does not support Appellant’s con-
tention that a mandatory minimum sentence of a dismissal for sexual assault
is unconstitutional on grounds that Congress has not proscribed the same min-
imum sentence for other crimes. We find no violation of equal protection under
the Fifth Amendment from Congress’ establishment of a minimum sentence
for sexual assault.

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6. Sentence Appropriateness
Appellant also claims his mandatory dismissal is inappropriately severe.
We review issues of sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270, 272
(C.M.A. 1990)). Our authority to determine sentence appropriateness “reflects
the unique history and attributes of the military justice system, [and] includes
but is not limited to considerations of uniformity and evenhandedness of sen-
tencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001)
(citations omitted). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ. Although we have great discretion to deter-
mine whether a sentence is appropriate, we have no power to grant mercy.
United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted).
Appellant faced 30 years of confinement, but was sentenced to just six
months, along with a mandatory dismissal, forfeiture of $1,000.00 pay per
month for six months, and a reprimand. Appellant had known SB for only a
few days after meeting her for the first time. We have given individualized
consideration to Appellant, the nature and seriousness of his offense, his record
of service, and all other matters contained in the record of trial, see United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citations omit-
ted), and conclude Appellant’s sentence is appropriate. Although we have the
authority to disapprove a mandatory minimum sentence required by Article
56, UCMJ, we decline to do so. See United States v. Kelly, 77 M.J. 404, 408
(C.A.A.F. 2018).
F. Military Judge’s Alleged Conflict of Interest
Appellant contends his conviction must be set aside because Judge Spath’s
undisclosed employment negotiations with the United States Department of
Justice (DoJ) created a disqualifying appearance of bias. For support, Appel-
lant relies on Judge Spath’s denial of his continuance request and ruling that
excluded two documents Appellant wanted to attach to his written unsworn
statement, both discussed supra. We find Judge Spath was not disqualified
from presiding as the military judge at Appellant’s trial.
1. Additional Background
After Appellant’s arraignment and initial Article 39(a), UCMJ, session
ended on 12 July 2017, Judge Spath, in his capacity as the chief trial judge of
the Air Force, detailed himself, on 26 September 2017, to preside at Appellant’s
court-martial and ordered trial to reconvene on 8 January 2018 at 0830 hours.
Judge Spath replaced the previous military judge who had presided over Ap-
pellant’s arraignment on 11 July 2017 and then retired from active duty. Judge

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Spath himself was also preparing to retire to become an immigration judge
employed by the DoJ.
Judge Spath applied for the DoJ position on 19 November 2015, well before
Appellant’s trial. As part of his application, he stated he had 5 years of experi-
ence as a trial judge and another 15 years of extensive experience as both a
prosecutor and criminal defense counsel. He stated he “tried over 100 sexual
assault cases” among other felony trials and, as a military judge, he “presided
over close to 100 sexual assault trials, and another 50+ trials involving other
violent crimes.”
The DoJ extended an initial job offer to Judge Spath in March 2017, and in
mid-June 2017 established an 18 September 2017 start date. Judge Spath ne-
gotiated his salary and start date in a series of emails, including emails be-
tween 27 March 2017 and 3 July 2017 that are attached to the appellate record.
The job offer and its terms were pending when Appellant’s trial reconvened on
8 January 2018 with Judge Spath presiding as the military judge.
2. Analysis
“An accused has a constitutional right to an impartial judge.” United States
v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (quoting United States v. Wright, 52
M.J. 136, 140 (C.A.A.F. 1999)). R.C.M. 902 outlines the circumstances when a
military judge shall disqualify himself or herself in any proceeding. Two dis-
tinct grounds include when the “military judge’s impartiality might reasonably
be questioned,” or the military judge has “an interest, financial or otherwise,
that could be substantially affected by the outcome of the proceeding.” R.C.M.
902(a), 902(b)(5)(B). “‘Proceeding’ includes pretrial, trial, post-trial, appellate
review, or other stages of litigation.” R.C.M. 902(c)(1).
When an appellant challenges a military judge’s impartiality for the first
time after trial, “‘the test is whether, taken as a whole in the context of this
trial, a court-martial’s legality, fairness, and impartiality were put into doubt’
by the military judge’s actions.” United States v. Martinez, 70 M.J. 154, 157
(C.A.A.F. 2011) (quoting United States v. Burton, 52 M.J. 223, 226 (C.A.A.F.
2000)). The appearance of impartiality is reviewed on appeal objectively and
the military judge’s conduct is tested to determine if it “would lead a reasonable
[person] knowing all the circumstances to the conclusion that the judge’s im-
partiality might reasonably be questioned.” United States v. Kincheloe, 14 M.J.
40, 50 (C.M.A. 1982) (quoting E. Thode, Reporter’s Notes to Code of Judicial
Conduct 60 (1973)) (internal quotation marks omitted); see also United States
v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (“Whether the military judge
should disqualify herself is viewed objectively, and is ‘assessed not in the mind
of the military judge [her]self, but rather in the mind of a reasonable man

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. . . who has knowledge of all the facts.’” (alterations in original) (quoting
United States v. Wright, 52 M.J. 136, 141 (C.A.A.F. 1999))).
When the issue of disqualification is raised for the first time on appeal, we
apply the plain error standard of review. Martinez, 70 M.J. at 157 (citing
United States v. Jones, 55 M.J. 317, 320 (C.A.A.F. 2001)). “Plain error occurs
when (1) there is error, (2) the error is plain or obvious, and (3) the error results
in material prejudice.” Id. (citing United States v. Maynard, 66 M.J. 242, 244
(C.A.A.F. 2008)).
Appellant argues Judge Spath’s “flaunting” of his experience as a judge ad-
vocate and military judge in his job application was disqualifying. In particular
relevance to Appellant’s case, he further claims “it is more than reasonable to
logically infer” that (1) Judge Spath excluded two attachments that referenced
sex offender registration consequences so as not to jeopardize his prospective
DoJ employment; and (2) Judge Spath denied Appellant’s motion for a contin-
uance because he was clearing his docket in preparation to begin his immigra-
tion judge duties. We address each contention in turn.
First, we find no basis for disqualification in Judge Spath’s job application
or his negotiations with the DoJ. He described his trial and judicial experience
by reference to his years of practice and the number and types of cases he tried.
He did not gild his communications with DoJ personnel in a manner that could
raise doubts about the legality, fairness, or impartiality of Appellant’s trial—
by boasting of, for example, a record of convictions or expediency in moving
cases as a trial judge. Appellant draws parallels with the disqualifying interest
Judge Spath was found to have in In re Al-Nashiri, 921 F.3d 224 (D.C. Cir.
2019), where he presided over Al-Nashiri’s military commission. The United
States Court of Appeals for the District of Columbia Circuit observed that
judges may not sit in judgment on cases in which their prospective employers
are a party:
the Attorney General was a participant in Al-Nashiri’s case from
start to finish: he has consulted on commission trial procedures,
he has loaned out one of his lawyers, and he will play a role in
defending any conviction on appeal. The challenge [Judge] Spath
faced, then, was to treat the Justice Department with neutral
disinterest in his courtroom while communicating significant
personal interest in his job application. Any person, judge or not,
could be forgiven for struggling to navigate such a sensitive sit-
uation. And that is precisely why judges are forbidden from even
trying.

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Id. at 236–37 (citation omitted). Ultimately, the court found that “[Judge]
Spath’s job application, therefore, cast an intolerable cloud of partiality over
his subsequent judicial conduct.” Id. at 237.
But the circumstances of Appellant’s court-martial are different than Al-
Nashiri’s military commission. The DoJ was not a party to Appellant’s trial
and did not have an identifiable interest in its result, nor was the Attorney
General or anyone in the DoJ a participant. Neither the DoJ nor the Attorney
General has a close association with military courts-martial generally, or Ap-
pellant’s case specifically. Appellant cites one connection with the DoJ: Appel-
lant claims the DoJ’s role overseeing and administering the SORNA was dis-
qualifying because of Judge Spath’s “rulings on various SORNA issues liti-
gated below.” In fact, just one of Judge Spath’s rulings tangentially related to
SORNA—a ruling excluding two attachments that referenced sex offender reg-
istration Appellant wanted to give to the members as part of his written un-
sworn statement. However, the connection of this ruling and SORNA is tenu-
ous. Judge Spath neither applied SORNA nor interpreted, much less under-
mined or reinforced, the Government’s reliance on any provision. Rather, his
ruling addressed the military presentencing procedures in R.C.M. 1001, a rule
promulgated by the President, and related to the permissible bounds of an ap-
pellant’s unsworn statement. There is no reason to believe that a DoJ hiring
official would hear about the ruling and be pleased or displeased, or that Judge
Spath believed a DoJ hiring official would be aware of his ruling or that it
would be any matter of consequence. This case is therefore distinguishable
from the disqualification found in In re Al-Nashiri.
Second, there is no evidence in the record that Judge Spath denied Appel-
lant’s continuance motion for personal reasons or that an objective observer
knowing the facts would conclude that he did. No evidence or reasonable infer-
ence suggests that Judge Spath was under pressure to move Appellant’s case
hurriedly so that he could retire. As the chief trial judge, Judge Spath had
plenary detailing authority which would have allowed him to identify any trial
judge in the Air Force to preside at Appellant’s trial if he concluded Appellant
met his burden to show a continuance was warranted. See Air Force Manual
51-204, United States Air Force Judiciary and Air Force Trial Judiciary, ¶ 1.3
(18 Jan. 2008, Incorporating Through Change 2, 9 Oct. 2014) (the duties of the
chief trial judge include “detailing judges to all Air Force General and Special
courts-martial.”). 33 Even if there was some evidence that Judge Spath was un-
der pressure to keep a post-retirement timeline, and there is none, he could

33Superseded by Air Force Instruction 51-204, United States Air Force Judiciary and
Air Force Trial Judiciary, ¶ 2.3.1 (10 Sep. 2018).

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have detailed a judge other than himself to preside at Appellant’s trial if a
continuance was warranted.
We find Judge Spath was not disqualified from presiding at Appellant’s
court-martial. An objective observer knowing all of the facts would not question
Judge Spath’s impartiality, and there is no evidence in the trial or appellate
record that Judge Spath had an interest that could be substantially affected
by the outcome of the proceeding. See R.C.M. 902(a), 902(b)(5)(B). “There is a
strong presumption that a judge is impartial, and a party seeking to demon-
strate bias must overcome a high hurdle, particularly when the alleged bias
involves actions taken in conjunction with judicial proceedings.” United States
v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001) (citation omitted). Appellant has
not overcome the presumption. We find no error, much less plain and obvious
error, on this issue.
G. Post-Trial
In the post-trial proceeding, Appellant was represented by both his CDC
and military defense counsel, Captain (Capt) JK. 34 In an assignment of error
raised by the CDC on Appellant’s behalf, Appellant claims he was prejudiced
by (1) the failure of the base legal office to serve the record of trial (ROT) and
the staff judge advocate’s recommendation (SJAR) on his CDC; and (2) the re-
fusal by the convening authority’s staff judge advocate to recall Appellant’s
case after the convening authority had taken action so that the convening au-
thority would have the benefit of an Article 38(c), UCMJ, brief that the CDC
submitted after the deadline to submit clemency. Appellant claims both proce-
dural errors denied Appellant of his right to procedural due process.
In a related issue raised by Appellant, he argues his military defense coun-
sel was ineffective because he failed to “adequately communicate to the gov-
ernment the role and status of [the] CDC in post-trial proceedings.” 35 Appellant
avers that both he and his CDC “communicated to [Appellant’s] detailed mili-
tary defense counsel the role that [the] CDC had been retained to play in post-
trial processing, and submission of clemency and related matters to the con-
vening authority.” Appellant explains, “If my detailed military defense counsel
in fact informed the legal office that my CDC was only acting as appellate coun-
sel, as alleged by the government, that would be false and contrary to my ex-
press wishes.”

34 Capt JK promoted to major after trial.
35In response to an order of this court, Appellant’s three appellate counsel identified
military appellate counsel as “primary” counsel on the assignment of error that Appel-
lant raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

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1. Additional Background
In a final session of the court held on 11 January 2018 while the members
deliberated on their sentence, the military judge conducted an inquiry with
Appellant and one of his two detailed military defense counsel, Capt JK, to
ensure Appellant had been advised both orally and in writing of his post-trial
and appellate rights. The military judge asked Capt JK if he was “going to be
responsible for post-trial processing?” Capt JK responded in the affirmative
and submitted a post-trial rights advisement dated the first day of trial that
Appellant and both military counsel had signed.
a. Capt JK’s Clemency Submission on Behalf of Appellant
Capt JK actively represented Appellant after the members sentenced Ap-
pellant to a dismissal, to be confined for six months, to forfeit $1,000.00 of pay
per month for six months, and to be reprimanded. On 16 January 2018, Capt
JK sent a request to the convening authority to defer the adjudged forfeitures
until action and waive mandatory forfeitures for a period of six months for the
benefit of Appellant’s dependent children. See Articles 57(a)(2), 58b(b), UCMJ,
10 U.S.C. §§ 857(a)(2), 858b(b). 36 Capt JK also certified the transcript, re-
ceipted for the SJAR, requested and received an extension to submit matters,
and submitted his own attorney clemency memo identifying himself as Appel-
lant’s defense counsel.
In his 3 May 2018 attorney clemency memo, Capt JK responded to the
SJAR dated 16 April 2018. On Appellant’s behalf, Capt JK advocated the mil-
itary judge erred in (1) denying Appellant’s motion for a continuance to allow
Appellant to be represented at trial by the CDC; (2) denying Appellant’s motion
to compel discovery of text messages between SB and her friend FK; and (3)
denying a request by a court member to receive evidence of a statement Appel-
lant made to the Brevard County (Florida) Sheriff’s Office on grounds that the
statement was hearsay and its probative value was outweighed by other con-
siderations under Mil. R. Evid. 403.
Capt JK correctly informed the convening authority that his power “to mod-
ify the findings and sentence in [Appellant’s] case is greatly restricted.” He
noted the convening authority had the power to reduce or set aside the ad-
judged confinement, forfeitures, and reprimand, but could not set aside the

36 On 19 January 2018, the convening authority denied the request to defer adjudged
and mandatory forfeitures, and, effective 25 January 2018, granted waiver of $1,000.00
of the mandatory forfeitures for a period of six months, upon expiration of Appellant’s
term of service, or until release from confinement, whichever was sooner, to be paid for
the benefit of Appellant’s dependent children.

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findings of guilty or disapprove the dismissal. Capt JK asked the convening
authority to grant clemency by disapproving the $1,000.00 forfeitures for six
months and to reduce Appellant’s confinement by 32 days. Along with the relief
Capt JK requested as clemency, 37 Capt JK asked the convening authority to
write a letter in support of Appellant’s claims of error. As entreated, the letter
would advocate that the convening authority would have set aside the findings
or ordered a new trial if he had the power to do so; it also would have recom-
mended that the Secretary of the Air Force (SECAF) substitute an administra-
tive discharge for the dismissal as authorized by Article 74(b), UCMJ, 10
U.S.C. § 874(b).
Appellant’s own submission, also dated 3 May 2018, echoed the clemency
and other relief Capt JK requested on Appellant’s behalf. Appellant requested
the convening authority to “consider the letter from [his] Defense Counsel,
Capt [JK]” along with other matters that were submitted in clemency. He also
discussed the consequences of the mandatory dismissal and sex offender regis-
tration. Five days later, on 8 May 2018, the convening authority took action
and denied the clemency and other relief that Appellant and Capt JK had
urged the convening authority to grant. There is no evidence in the record or
reason to believe that the convening authority wrote the letter to the SECAF
that Appellant and Capt JK asked for, much less favored either outcome Ap-
pellant sought.
b. Conduct of Counsel in Appellant’s Post-Trial Representation
Appellant’s CDC learned that the convening authority took action a week
after it happened. In a sworn affirmation to this court, the CDC provided
emails exchanged with Capt JK, and with personnel at the base legal office
who tried the case and the convening authority’s legal staff. The CDC ex-
plained he received the SJAR sometime on 15 May 2018, when he learned the
convening authority had already taken action, but did not receive a copy of the
authenticated ROT he needed to finalize an Article 38(c), UCMJ, brief to iden-
tify legal errors to the convening authority. 38

37 See Article 60(b)(1), UCMJ, 10 U.S.C. § 860(b)(1) (“The accused may submit to the
convening authority matters for consideration by the convening authority with respect
to the findings and the sentence.”); see also R.C.M. 1105(b)(1) (“The accused may sub-
mit to the convening authority any matters that may reasonably tend to affect the
convening authority’s decision whether to disapprove any findings of guilty or to ap-
prove the sentence, except as may be limited by R.C.M. 1107(b)(3)(C).”).
38Appellant’s CDC avers he did receive a copy of the “unauthenticated ROT for the
January 2018 proceedings.”

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In response to the CDC’s affirmation and Appellant’s claims of ineffective
assistance of his military defense counsel, the Government provided declara-
tions from the assistant trial counsel and the chief of military justice on the
convening authority’s legal staff. Additionally, we ordered and received a dec-
laration from Capt JK. We have considered whether a post-trial evidentiary
hearing is required to resolve any factual disputes and are convinced such a
hearing is unnecessary. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967) (per curiam).
Pared down to the relevant facts, the post-trial affirmation, declarations, and
attachments thereto are generally consistent and indicate the following facts.
After sentencing, the CDC and Capt JK ultimately resolved that both at-
torneys would represent Appellant in seeking clemency and other relief from
the convening authority, and the CDC would represent Appellant in his appeal.
Each attorney undertook to prepare and separately submit matters to the con-
vening authority. Capt JK would assist Appellant with his personal clemency
request and submit it along with a supporting attorney memorandum that
Capt JK would prepare and sign. At the same time the CDC would prepare
and submit an Article 38(c), UCMJ, brief, that identified errors in Appellant’s
trial.
Legal office personnel at the base where the case was tried and on the con-
vening authority’s staff had a different understanding. Above all, their actions
show they relied on Capt JK’s acknowledgement at trial that he was responsi-
ble for post-trial processing. The Government attorneys believed that Capt JK
alone was responsible for representing Appellant on post-trial matters and
that Appellant’s CDC would be representing Appellant on appeal. Their beliefs
were reinforced by two important facts evident from the declarations: first, that
Appellant’s CDC did not send a notice of representation to the Government or
formally countermand Capt JK’s acknowledgement on the record that Capt JK
would handle post-trial processing; and second, Appellant identified his CDC
as appellate counsel on AF Form 304, Request for Appellate Defense Counsel,
on the day his court-martial adjourned. The understanding of the Govern-
ment’s attorneys apparently did not change when Capt JK, on 13 April 2018
and on the CDC’s behalf, requested the legal office to make a copy of the au-
thenticated ROT and send it to the CDC. Capt JK’s request did not specify
whether the CDC needed the ROT for the purpose of clemency, appeal, or some
other purpose. Capt JK had been provided his own copy for use while preparing
the response to the SJAR. See R.C.M. 1106(f)(3).
On 16 April 2018, and in accordance with R.C.M. 1106(f)(2), the legal office
served Capt JK, by email, with the SJAR. Appellant receipted for his copy of

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the SJAR on 18 April 2018. 39 Appellant’s CDC was not served with the SJAR.
Capt JK erroneously believed the legal office would provide Appellant’s CDC
with a copy guided by the misunderstanding that the Government had a “re-
sponsibility to provide this type of document to all defense counsel involved in
the post-trial process.” Not coincidentally, the CDC asserts as much in this
appeal.
Appellant had a ten-day period to submit clemency. See R.C.M. 1105(c)(1).
As the 28 April 2018 deadline drew near, Capt JK “continued to work on [his]
attorney memorandum for [Appellant]’s clemency submission” and “worked
with [Appellant] on his clemency letter and was in communication with [Ap-
pellant’s CDC].” Capt JK’s “communication with [Appellant’s CDC] included
emailing [Appellant]’s draft clemency letter with [Capt JK’s] suggestions for
his input. This was done at [Appellant]’s request and was emailed to [Appel-
lant’s CDC] on 20 April 2018.” There is nothing in the post-trial declarations
to suggest that the CDC asked Capt JK to provide, or that Capt JK did provide,
the SJAR he received by email from the Government. 40
Capt JK “talked to [Appellant’s CDC] about [Appellant]’s approaching
clemency submission deadline.” Even though Appellant’s CDC supposed he
would receive a copy of the SJAR from the Government and had not received
one himself, nonetheless, on 24 April 2018, the CDC asked Capt JK to request
an extension from the convening authority to allow for additional time to sub-
mit matters. Capt JK avers he had separate telephone conversations with two
attorneys in the base legal office and let them know he “would be requesting
an extension for [Appellant]’s clemency submission.” He told one of the attor-
neys that the justification for the request was “due in part to [Capt JK’s] work-
load and leave and in part for [Appellant’s CDC] who would also be submitting
matters for [Appellant]’s clemency.” (Emphasis added). This is the first and
only clear indication in the post-trial declarations that anyone in the Govern-

39 Appellant receipted for a copy of the record of trial on 17 April 2018.
40 Included as an attachment to the affirmation of Appellant’s CDC is an email he sent
to a judge advocate on the convening authority’s staff stating the CDC “received a copy
of the SJAR from [Capt JK on 15 May 2018] when [Capt JK] found out that [the CDC]
had not been served with a copy.” We decline to speculate why one counsel did not
share the SJAR with the other between 16 April 2018 and 3 May 2018, the date clem-
ency was submitted. However, the SJAR was apparently of no consequence to the
CDC’s part of the representation as neither defense counsel aver that the CDC asked
Capt JK to send him a copy.

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ment should have been aware that Appellant’s CDC expected to submit mat-
ters separate from the submission the Government expected to receive from
Appellant and Capt JK. 41
On the other hand, Capt JK’s written extension request to the convening
authority and his staff judge advocate (SJA) made no mention that more time
was needed for Appellant’s CDC to submit matters. It also did not reference
that Appellant’s CDC had not received an authenticated copy of the ROT or a
copy of the SJAR and that more time was needed for the CDC’s review of those
documents. And, unlike Capt JK’s verbal conversation with an attorney from
the base legal office, his written request that was approved by the SJA to the
convening authority—who was not the supervisor of the base legal office per-
sonnel whom Capt JK spoke to on the telephone—did not mention that Appel-
lant’s CDC was preparing a separate submission and also needed an extension.
Rather, the request asked the Government for a delay until Friday, 4 May 2018
at 1630 hours because Capt JK simply needed “more time to speak with [Ap-
pellant] and coordinate with [Appellant’s] civilian counsel.” The extension was
granted with a new deadline of 4 May 2018; significantly, on 25 April 2018,
Capt JK informed the CDC of the new deadline.
On 2 May 2018, Capt JK let Appellant’s CDC know he was prepared to
submit Appellant’s clemency matters with his accompanying attorney memo-
randum the next day so that the convening authority’s legal staff would have
it before 4 May 2018. Capt JK informed the CDC that he would ensure the
CDC was copied on the submission so that the CDC would have the contact
information for the attorneys at the base legal office and know to whom he
should send his Article 38(c), UCMJ, brief.
True to Capt JK’s intention to meet the 4 May 2018 deadline, on 3 May
2018, Capt JK’s paralegal submitted Capt JK’s attorney clemency memo along
with Appellant’s personal clemency submission. Appellant’s CDC was copied
on the email, which read, “Please see attached clemency request for [Appellant]
and feel free to contact our office with any questions.” Thereafter, neither the
CDC, nor Capt JK on the CDC’s behalf, alerted the Government that the sub-
mission was incomplete as the CDC intended to submit a brief. Capt JK avers

41 The CDC avers he:
personally communicated with the Assistant Trial Counsel [ATC] the
fact that he needed a copy of the RoT, which the ATC agreed to provide
and CDC provided his office mailing address to him, as CDC was going
to be submitting matters for the [staff judge advocate] and [convening
authority]’s post-trial consideration in this case . . . .
It is unclear from the CDC’s affirmation what exactly the CDC communicated to the
ATC other than he required a copy of the record of trial.

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he “believed that [Appellant’s CDC] would subsequently be submitting his Ar-
ticle 38[(c), UCMJ,] brief to them before the clemency deadline.” In a memo-
randum for record Capt JK composed on 21 June 2018 that was attached to his
declaration, Capt JK states “[i]t was not until on or about 14 May 2018, that
[he] learned [Appellant’s CDC] did not submit his brief since he was waiting
for the ROT and SJAR to be served to him from the legal office.” Coincidentally,
Appellant was released from confinement on 14 May 2018.
In the days that followed, Appellant’s CDC was unsuccessful in convincing
the Government to withdraw the action and recall Appellant’s case so that the
convening authority would have the benefit of his Article 38(c), UCMJ, brief.
Appellant’s record of trial was docketed with this court on 22 May 2018. On 30
May 2018, this court received a memorandum from the Air Force Legal Oper-
ations Agency, Military Justice Division, Appellate Records Branch
(AFLOA/JAJM), identifying the CDC’s 40-page brief dated 14 May 2018 for
inclusion in the original record of trial. 42 The JAJM memorandum was signed
as having been received by representatives of the Appellate Government Divi-
sion (JAJG) and the Appellate Defense Division (JAJA). The brief is included
in the record of trial.
2. Law
“The standard of review for determining whether post-trial processing was
properly completed is de novo.” United States v. Sheffield, 60 M.J. 591, 593
(A.F. Ct. Crim. App. 2004) (citing United States v. Kho, 54 M.J. 63 (C.A.A.F.
2000)). An error in post-trial processing results in material prejudice to the
substantial rights of an appellant under Article 59(a), UCMJ, 10 U.S.C. §
859(a), if an appellant “makes some colorable showing of possible prejudice.”
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (quoting United
States v. Chatman, 46 M.J. 321, 323–34 (C.A.A.F. 1997)). Given our superior
court’s reliance on “the highly discretionary nature of the convening authority’s
clemency power, the threshold for showing prejudice is low.” United States v.
Lee, 52 M.J. 51, 53 (C.A.A.F. 1999).
The Sixth Amendment guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).

42A second document included with the brief was a 3-page memorandum regarding
“Excess Appellate Leave Issues” that was signed by Appellant’s CDC, which the court
accepted for inclusion in the record of trial.

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Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000)).
We review allegations of ineffective assistance of counsel de novo. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United States v.
Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). “To prevail on an ineffective assis-
tance claim, the appellant bears the burden of proving that the performance of
defense counsel was deficient” and that this deficiency resulted in prejudice.
United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing Strickland,
466 U.S. at 698). Accordingly, we consider “whether counsel’s performance fell
below an objective standard of reasonableness.” United States v. Gutierrez, 66
M.J. 329, 331 (C.A.A.F. 2008) (citations omitted). An appellate court must
“evaluate the combined efforts of the defense as a team rather than evaluating
the individual shortcomings of any single counsel.” United States v. Garcia, 59
M.J. 447, 450 (C.A.A.F. 2004) (citing United States v. McConnell, 55 M.J. 479,
481 (C.A.A.F. 2001)).
3. Analysis
All too often we see careless mistakes by government attorneys and defense
counsel during post-trial processing. But this is the unusual case where an
appellant and his civilian counsel fault the Government and the military de-
fense counsel for the CDC’s own missed deadline—one that the military de-
fense counsel timely requested in part on the CDC’s behalf and the CDC knew
had been granted. Still, resolution of Appellant’s assigned errors are straight-
forward even if the reasons underlying the failures in communication on Ap-
pellant’s team are peculiar. Pared down to the relevant facts, the declarations
reveal the Government complied with standards applicable to post-trial pro-
cessing, and Appellant has shown neither deficiency in the combined perfor-
mance of his defense counsel nor a colorable showing of possible prejudice by
the convening authority taking action without the benefit of the Article 38(c),
UCMJ, brief the CDC had prepared.
Rule for Courts-Martial 1106(f)(2) lists the order of precedence on whom
the SJAR is served if an accused fails to designate a specific counsel at trial.
The SJAR is served on one counsel only, and civilian counsel is first in the
order of precedence if an accused does not so designate. Because Capt JK iden-
tified he was counsel of record for post-trial processing, the order of precedence
is inapplicable, and the Government met its obligation under R.C.M. 1106(f)(2)
by serving the SJAR on Capt JK and him alone. See United States v. Washing-
ton, 45 M.J. 497, 498 (C.A.A.F. 1997) (finding error after appellant requested
his military counsel be served with the SJAR and ROT, but service was accom-
plished on appellant’s civilian counsel instead). There is no evidence in the rec-
ord of proceedings—or indication in any declaration or affirmation—that the
CDC sent notice of representation to the Government that might have changed

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this designation or the understanding of any legal office personnel. 43 On these
facts it was not error for the Government to refuse to withdraw the action after
faithfully observing the R.C.M. 1106(f)(2) procedures and granting in full Ap-
pellant’s request for an extension to submit matters.
Appellant had a 4 May 2018, 1630 hour deadline to submit clemency, which
both defense counsel knew had been extended once. Each counsel undertook a
well-defined responsibility. Capt JK capably met his. Despite asking Capt JK
to request an extension and knowing a new deadline had been set, Appellant’s
CDC did not submit his Article 38(c), UCMJ, brief or request a second exten-
sion so that his brief would be timely. 44 Once the clemency deadline passed,
Government attorneys could reasonably conclude Appellant’s clemency sub-
mission was complete: the matters the Government did receive, which the CDC
also received because the defense paralegal included him on the email, made
no reference to a separate submission that would be forthcoming from the
CDC. For these reasons, we find the Government did not err in post-trial pro-
cessing and Appellant was not denied his right to procedural due process.
Even if we presume deficiency of the defense team, see Garcia, 59 M.J. at
450, we find no colorable showing of possible prejudice, see Wheelus, 49 M.J. at
289, and thus no grounds to order post-trial processing anew. The convening
authority had the power to reduce or set aside Appellant’s adjudged confine-
ment, forfeitures, and reprimand, but could not set aside the findings of guilty
or disapprove the dismissal. Consistent with these restrictions, and citing the
power the convening authority did have under Article 60, UCMJ, 10 U.S.C. §
860, Capt JK’s submission asked the convening authority to disapprove the
$1,000.00 forfeitures for six months and to reduce Appellant’s confinement by
32 days. His request was in harmony in all respects with the relief Appellant
wanted and the clemency the convening authority had the power grant.

43Appellant faults his military defense counsel for failing to make clear to the Govern-
ment that the scope of the CDC’s representation included preparing a post-trial sub-
mission to the convening authority. We find this was the CDC’s responsibility, and his
alone, and is customarily done by sending notice to an adverse party that defines the
scope of the representation undertaken by the attorney. As discussed previously, the
military judge also found Appellant’s CDC did not enter a formal appearance during
trial, even after receiving a retainer fee.
44Appellant’s CDC could have asked the convening authority to push the deadline to
18 May 2018. See R.C.M. 1105(c)(1) (“If, within the 10-day period [to submit matters],
the accused shows that additional time is required for the accused to submit such mat-
ters, the convening authority or that authority’s staff judge advocate may, for good
cause, extend the 10-day period for not more than 20 additional days.”).

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In contrast to Capt JK’s submission, the Article 38(c), UCMJ, brief is silent
about clemency and advocates for relief that the convening authority had no
power to grant. Its focus, much like Appellant’s appeal to this court, are errors
Appellant claims occurred at trial. Appellant’s CDC advocated for retrial on
grounds that Appellant was denied the right to be represented by his civilian
counsel of choice. He advocated for the findings and sentence to “be disap-
proved and reversed, as constitutionally invalid” and that Appellant’s “sen-
tence herein should be set aside and a rehearing as to an appropriate sentence
for this Accused, ordered.” The convening authority did not have the power to
do these things. 45 Appellant’s CDC did not address, as Capt JK did, either the
power the convening authority did have or the clemency Appellant asked the
convening authority to grant.
More to the point, although Appellant’s Article 38(c), UCMJ, brief identifies
errors, it does not seek clemency or any other relief the convening authority
might have given. Even so, Appellant’s CDC argues “prejudice per se” and re-
mand for post-trial processing anew because the action “fails to acknowledge
that the Military Judge ordered that [Appellant] be credited with 16 days of
pretrial confinement in the Brevard County [Florida] Jail.” (Second alteration
in original). This too misses the mark. The convening authority’s action was
not incomplete because the convening authority must only include credit for
illegal pretrial confinement in the action. R.C.M. 1107(f)(4)(F). The action was
thus proper without stating the 16 days of administrative credit Appellant was
due. In fact Appellant was properly credited with these days on the DD Form
2707-1, Department of Defense Report of Result of Trial, which is included in
the record of trial with the confinement order. Further, Appellant’s CDC notes
in his Statement of the Case as part of his Article 38(c), UCMJ, brief that Ap-
pellant had been released from confinement on 14 May 2018 after serving a
six-month sentence that began on 11 January 2018.
Because Capt JK submitted clemency on Appellant’s behalf and his request
was clemency Appellant sought and the convening authority could grant, this
is not a case where an appellant was effectively without representation during
the post-trial process and prejudice is presumed. See United States v. Knight,
53 M.J. 342 (C.A.A.F. 2000) (citations omitted).
We evaluate trial defense counsel’s performance not by the success of their
strategy, see United States v. Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001) (quot-
ing United States v. Hughes, 48 M.J. 700, 718 (A.F. Ct. Crim. App. 1998)), but
by an objective standard of reasonableness. Gutierrez, 66 M.J. at 331 (citations

45 See R.C.M. 1102 (proceedings in revision and Article 39(a), UCMJ, post-trial ses-
sions); R.C.M. 1107(e) (ordering rehearing or other trial); R.C.M. 1210 (new trial); see
generally Articles 60(f) and 73, U.C.M.J, 10 U.S.C. §§ 860(f), 873.

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omitted). Having evaluated the combined actions of both defense counsel in
their post-trial representation of Appellant, see Garcia, 59 M.J. at 450, we find
their performance as a whole did not fall below applicable standards even
though the convening authority took action without the benefit of the Article
38(c), UCMJ, brief.
H. Remaining Allegations of Ineffective Assistance of Counsel
After Appellant submitted his assignments of error and the Government
answered, Appellant submitted a declaration pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), personally setting forth nine allegations
of ineffective assistance of counsel by the two military defense counsel who
represented him at trial. One of the counsel, Capt JK, assisted Appellant in
post-trial processing as described above. In response to Appellant’s claims, we
ordered and received declarations from both trial defense counsel, which refute
Appellant’s claims and are generally consistent with one another. We have con-
sidered whether a post-trial evidentiary hearing is required to resolve any fac-
tual disputes and are convinced such a hearing is unnecessary. See Ginn, 47
M.J. at 248; DuBay, 37 C.M.R. at 413.
As discussed previously, Appellant personally alleges that the military de-
fense counsel who represented him in clemency was ineffective in that he failed
to adequately communicate with Appellant’s retained CDC and the Govern-
ment regarding post-trial representation and the desire of the CDC to submit
matters in clemency. In addition, Appellant contends that his military defense
counsel were ineffective in eight assignments of error, which we considered
and summarily resolve here. Appellant declares his second team of detailed
military defense counsel failed to: (1) investigate the alleged offense; (2) chal-
lenge the Government’s denial of Appellant’s request for investigative assis-
tance; (3) refrain from dissuading Appellant that hiring an investigator at per-
sonal expense was not necessary or worthwhile; (4) make timely objections at
trial; (5) challenge the general prohibition on using the good-soldier defense
and offer evidence and present argument of a good-soldier defense; (6) present
photographs or a to-scale floor plan of the scene of the alleged crime; (7) advise
Appellant of the advantages of taking the stand in his own defense; and (8)
clarify and preserve the record regarding the retention of civilian defense coun-
sel. 46
We find these issues do not require further discussion and are without
merit. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). We further

46Although Appellant was represented by two former detailed military defense counsel
when the deficiencies underlying the first three of these alleged errors occurred, Ap-
pellant claims ineffective representation from his second defense team only.

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conclude from our review of the record and all post-trial declarations that Ap-
pellant was neither deprived of a fair trial nor was the trial outcome unreliable.
See Strickland, 466 U.S. at 696. Accordingly, we find Appellant’s claims of in-
effective assistance of counsel do not warrant relief.
I. Timeliness of Appellate Review
We review de novo whether an appellant has been denied the due process
right to a speedy post-trial review and appeal. United States v. Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006) (citations omitted). A presumption of unreasonable
delay arises when appellate review is not completed and a decision is not ren-
dered within 18 months of the case being docketed. Id. at 142. When a case is
not completed within 18 months, such a delay is presumptively unreasonable
and triggers an analysis of the four factors laid out 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.” Moreno, 63 M.J. at 135 (citations omitted).
Appellant’s case was originally docketed with the court on 22 May 2018.
The overall delay in failing to render this decision by 22 November 2019 is
facially unreasonable. See Moreno, 63 M.J. at 142. However, we determine no
violation of Appellant’s right to due process and a speedy post-trial review and
appeal. Analyzing the Barker factors, we find the delay is not excessively long.
The reasons for the delay include the time required for Appellant to file his
brief on 23 July 2019, and the Government to file its answer on 5 September
2019. After Appellant’s reply on 30 September 2019, ten days later on 10 Oc-
tober 2019, Appellant submitted a declaration identifying nine allegations of
ineffective assistance of counsel, which the Government answered on 2 Janu-
ary 2020, and Appellant replied on 14 January 2020. We granted 12 enlarge-
ments of time—11 for Appellant and 1 for the Government—resulting in the
scheduling of a status conference with all appellate counsel before a panel
judge. This court issued 11 orders, ruled on 6 out-of-time filings submitted by
Appellant and 1 from the Government, and returned 4 of Appellant’s filings
with no action for non-compliance with this court’s Rules of Practice and Pro-
cedure.
The court affirms the findings and sentence in this case after carefully ex-
amining numerous assignments of error, including nine alleged deficiencies of
Appellant’s trial defense counsel that the parties had not completed briefing
by 22 November 2019, after which date the appellate delay was facially unrea-
sonable. See id. However, Appellant has not asserted his right to speedy appel-
late review or pointed to any particular prejudice resulting from the presump-
tively unreasonable delay, and we find none. Finding no Barker prejudice, we
also find the delay is not so egregious that it adversely affects the public’s per-
ception of the fairness and integrity of the military justice system. See United

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States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). As a result, there is no due
process violation. See id. In addition, we determine that Appellant is not due
relief even in the absence of a due process violation. See United States v. Tardif,
57 M.J. 219, 223–24 (C.A.A.F. 2002). Applying the factors articulated 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 find the delay in appellate review justified and relief for
Appellant unwarranted.

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.

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

45