U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32582
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UNITED STATES
Appellee
v.
Alexander D. SHERWOOD
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 18 September 2020
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Military Judge: Thomas J. Alford.
Approved sentence: Bad-conduct discharge, confinement for 30 days, re-
duction to E-1, and a reprimand. Sentence adjudged 4 December 2018
by SpCM convened at Offutt Air Force Base, Nebraska.
For Appellant: Major Yolanda D. Miller, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Peter F. Kellett, USAF; Mary
Ellen Payne, Esquire.
Before J. JOHNSON, KEY, and CADOTTE, Appellate Military Judges.
Judge CADOTTE delivered the opinion of the court, in which Chief
Judge J. JOHNSON and Judge KEY 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This is an unpublished opinion and, as such, does not serve as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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CADOTTE, Judge:
A special court-martial composed of a military judge alone convicted Appel-
lant, in accordance with his pleas pursuant to a pretrial agreement (PTA), of
United States v. Sherwood, No. ACM S32582
three specifications of wrongful use of controlled substances, 1 in violation of
Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a, and
one specification of unlawful carry of a concealed weapon, 2 in violation of Arti-
cle 134, UCMJ, 10 U.S.C. § 934. 3 The military judge sentenced Appellant to a
bad-conduct discharge, confinement for 75 days, reduction to the grade of E-1,
and a reprimand. In accordance with the terms of the PTA, the convening au-
thority reduced Appellant’s term of confinement to 30 days and waived auto-
matic forfeitures for the benefit of Appellant’s spouse and child but otherwise
approved the sentence as adjudged.
Appellant personally raises a single issue pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). 4 He asserts the military judge erred
when he did not sua sponte exclude persons from the courtroom and requests
the bad-conduct discharge be set aside. Finding no error materially prejudicial
to a substantial right of Appellant, we affirm the findings and sentence.
I. BACKGROUND
On 22 November 2017, Appellant was selected for random urinalysis test-
ing. The urine sample Appellant provided tested positive for cocaine and d-
methamphetamine. Later that same day, the Sioux City Police Department
(SCPD) conducted a traffic stop of Appellant’s vehicle. A police canine certified
in drug detection alerted to the presence of drugs. SCPD searched the vehicle
and discovered a concealed .22-caliber handgun under the driver’s seat of the
vehicle; ammunition; and, according to Appellant’s stipulation of fact, “an
empty baggie that was the same as baggies used to carry small amounts of
1Appellant was found guilty of wrongful use of methamphetamine on divers occasions,
wrongful use of cocaine on divers occasions, and wrongful use of 3,4-methylenediox-
ymethamphetamine.
2 This offense was charged as both service discrediting and prejudicial to good order
and discipline. Consistent with his pleas, Appellant was found guilty by exception. Ap-
pellant was found not guilty of the words “to the prejudice of good order and discipline
in the Armed Forces and.”
3All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).
4 Although not raised by Appellant, we note the convening authority did not identify
reasons for denying Appellant’s request that his reduction in grade be deferred until
action. This was an error. See United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), over-
ruled on other grounds by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018);
see also United States v. Ward, No. ACM 39648, 2020 CCA LEXIS 305, at *8–9 (A.F.
Ct. Crim. App. 3 Sep. 2020) (unpub. op.). Appellant has made no claim of prejudice and
we discern no material prejudice to Appellant’s substantial rights as a result of the
error.
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United States v. Sherwood, No. ACM S32582
drugs . . . .” Appellant admitted to SCPD officers that the handgun belonged to
him. Appellant did not have a permit to carry a weapon in Iowa, or any other
state.
On 3 December 2017, Appellant was arrested in West Des Moines, Iowa, by
the West Des Moines Police Department (WDPD) after being seen acting er-
ratically. Appellant ingested controlled substances and was feeling the effects
of the drugs. Appellant was walking, and he waived his arms in the air attract-
ing the attention of a WDPD officer. Appellant then told the WDPD officer that
he was high on methamphetamine and “several other drugs.” Appellant fur-
ther stated he needed to be arrested, and he was tired of being on drugs. On 4
December 2017, pursuant to a search authorization, Appellant’s urine was col-
lected for urinalysis testing by the Air Force. The sample later tested positive
for d-methamphetamine, cocaine, and 3,4-methylenedioxymethamphetamine
(MDMA).
On 12 December 2017, the Air Force Office of Special Investigations
(AFOSI) interviewed Appellant. After waiving his rights, Appellant admitted
to using methamphetamine on multiple occasions both before and after the 22
November 2017 random urinalysis. He also admitted to using cocaine three
times and MDMA once.
In January 2018, Appellant agreed to serve as a confidential informant
with the AFOSI. Over the span of nine months, Appellant contributed to nine
substantive criminal investigations resulting in court-martial convictions and
adverse military actions. 5 According to Appellant’s stipulation of fact, he also
contributed to the “neutralization" of a civilian drug dealer providing con-
trolled substances to military members.
Appellant and the convening authority entered into a PTA on 26 October
2018. A term of the PTA required Appellant to “waive all waivable motions.”
However, after entering into the PTA, pursuant to Rule for Courts-Martial
(R.C.M.) 806(b)(5), Appellant filed a motion for appropriate relief to close the
court to all parties except for the military judge, counsel, Appellant, court re-
porter, and witnesses. The motion proffered Appellant’s status as a confiden-
tial informant for the AFOSI for a span of over nine months put him in a sub-
stantial risk of harm if his status as a confidential informant were to be re-
vealed during the court-martial. The Government opposed the proposed clo-
sure. During a R.C.M. 802 conference, the day prior to trial, the military judge
inquired as to whether the motion for appropriate relief suggested a lack of a
meeting of the minds between Appellant and the convening authority with re-
spect to the “waive all waivable motions” clause of the PTA. The military judge
5The actions spanned administrative action, nonjudicial punishment, summary court-
martial, and special court-martial.
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United States v. Sherwood, No. ACM S32582
did not make any rulings during the R.C.M. 802 conference; however, he did
advise the parties that if there was not a clear meeting of the terms of the PTA,
he would not be able to accept the agreement. Later that evening, trial defense
counsel informed the military judge the motion for appropriate relief to close
the courtroom was being withdrawn. During the trial, the military judge asked
trial defense counsel, “What motions are you not making pursuant to this pro-
vision of the PTA?” Trial defense counsel specifically stated the “motion for
appropriate relief that has been previously discussed on the record,” which ad-
dressed the closed courtroom issue.
The military judge then engaged in the following colloquy with Appellant
with regard to the waiver of motions provision in the PTA:
[Military Judge (MJ)]: All right. Your pretrial agreement states
that you waive or give up the right to make waivable motions. I
advise you that certain motions are waived or given up if your
defense counsel does not make the motion prior to you entering
a plea. Additionally, other motions, even if not waived by a guilty
plea, are nonetheless waived if not brought up during the trial.
Some motions, however, such as motions to dismiss for lack of
jurisdiction, for example, they are never waived.
Do you understand this term of your pretrial agreement means
that you give up the right to make any motion which, by law, is
given up when you plead guilty?
[Accused (ACC)]: Yes, Your Honor.
MJ: Do you understand that this term of your pretrial agreement
means that you give up the right to make any motion, which is
given up, if not raised during the trial?
ACC: Yes, Your Honor.
MJ: In particular, do you understand that this term of your pre-
trial agreement precludes this court or any appellate court from
having the opportunity to determine if you are entitled to any
relief based upon the motions that your defense counsel has just
talked about?
ACC: Yes, Your Honor.
MJ: When you elected to give up the right to litigate these mo-
tions, did your defense counsel explain this term of your pretrial
agreement and the consequences to you?
ACC: Yes, Your Honor.
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United States v. Sherwood, No. ACM S32582
MJ: Did anyone force you to enter into this term of your pretrial
agreement?
ACC: No, Your Honor.
The military judge did not close the court-martial. The record does not in-
clude evidence of any disruptions, nor the number or identity of the spectators
in attendance at trial. Evidence of Appellant’s cooperation with the AFOSI was
limited to documents, and there was no mention of Appellant’s cooperation
during the public sessions of the court.
II. DISCUSSION
Appellant argues the military judge committed plain error by not excluding
persons from the trial, thereby affecting Appellant’s right to a fair, full, and
complete trial. Appellant contends that the military judge was made aware
that there were military members who were actively trying to find out the iden-
tity of the person informing on them by observing courts-martial proceedings,
and that the military judge had an obligation to exclude such persons from the
courtroom. However, Appellant entered into a PTA with the convening author-
ity which included the term to “waive all waivable motions.” Appellant went
over this term of the PTA with the military judge and trial defense counsel,
which specifically addressed the motion for appropriate relief being waived.
Ultimately, Appellant received the benefit of the PTA.
The issue of waiver is considered under a de novo standard of review.
United States v. Rosenthal, 62 M.J. 261, 262 (C.A.A.F. 2005) (per curiam) (ci-
tation omitted). Once “an appellant intentionally waives a known right at trial,
it is extinguished and may not be raised on appeal.” United States v. Gladue,
67 M.J. 311, 313 (C.A.A.F. 2009) (citations omitted). That being the case, we
need not reach the issue of whether the military judge’s failure to exclude per-
sons from the courtroom was error, as this issue has been waived, and Appel-
lant’s waiver will remain undisturbed as we decline to exercise our discretion
to pierce his waiver under Article 66, UCMJ, 10 U.S.C. § 866. See generally
United States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018) (citation omitted).
However, assuming arguendo this issue was not waived, the military judge
did not commit plain error by failing to sua sponte exclude persons from the
courtroom. See United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013) (cita-
tions omitted). “[T]he right to attend criminal trials is implicit in the guaran-
tees of the First Amendment[ 6]; without the freedom to attend such trials,
which people have exercised for centuries, important aspects of freedom of
speech and ‘of the press could be eviscerated.’” Richmond Newspapers, Inc., et
6 U.S. CONST. amend. I.
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United States v. Sherwood, No. ACM S32582
al. v. Virginia et al., 448 U.S. 555, 580 (1980) (quoting Branzburg v. Hayes, 408
U.S. 665, 681 (1972)). As a general principle, “[o]pening trials to public scrutiny
reduces the chance of arbitrary and capricious decisions and enhances public
confidence in the court-martial process.” R.C.M. 806(b)(6), Discussion.
Under plain error Appellant must show “(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.”
United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (citations omitted).
As to Appellant’s assertion the military judge committed error by not excluding
persons from the trial, we find no error, plain or otherwise. Appellant has not
set out a factual basis that would override the compelling reasons for main-
taining a military justice system subject to public scrutiny. 7 Furthermore, the
record is devoid of evidence that Appellant was materially prejudiced because
the military judge did not exclude persons from the courtroom. Appellant has
only made broad assertions that the failure to exclude persons affected Appel-
lant’s right to a fair, full, and complete trial. In fact, the record contains three
defense exhibits which are memoranda from AFOSI agents highlighting Ap-
pellant’s assistance to law enforcement. In addition, Appellant included his
work with the AFOSI in his written unsworn statement, and the information
was included in the stipulation of fact which was admitted as a prosecution
exhibit. Appellant was provided a full opportunity to present evidence to the
military judge, and there was no material prejudice of a substantial right.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
7In United States v. Fiske, 28 M.J. 1013, 1014 (A.F.C.M.R. 1989), our court found error
against public policy when the military judge barred spectators from the proceedings
upon request from trial defense counsel. Our court perceived the reason for the closure
request was “the appellant indicated he had provided the names of several other indi-
viduals together with whom he had used marijuana to Air Force law enforcement au-
thorities in hopes of receiving a more lenient treatment in his own case. He provided
all those names to the military judge.” It did not strike our court “as any different from
hundreds of other drug or theft cases [it] see[s] where an accused ‘turns states evidence’
after getting caught. . . .” Id.
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Accordingly, the approved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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