United States v. Painter

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

No. ACM 39646
________________________

UNITED STATES
Appellee
v.
Jonathan D. PAINTER
Airman First Class (E-3), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Decided 23 December 2020 1
________________________

Military Judge: Donald R. Eller, Jr. (motions); John C. Degnan.
Approved sentence: Dishonorable discharge, confinement for 1 month,
forfeiture of all pay and allowances, reduction to E-1, and a repri-
mand. Sentence adjudged 19 October 2018 by GCM convened at
Barksdale Air Force Base, Louisiana.
For Appellant: Major Yolonda D. Miller, USAF (argued); Mr. Mark C.
Bruegger, Esquire.
For Appellee: Captain Kelsey B. Shust, USAF (argued); Lieutenant
Colonel Joseph J. Kubler, USAF; Lieutenant Colonel Brian C. Mason,
USAF; Mary Ellen Payne, Esquire; Kelsey MacLeod (legal extern). 2
Amicus Curiae for Appellant: Joseph A. Grossman (law student, ar-
gued); John M. Smith, Esquire (supervising attorney); Andrei A.
Satchlian (law student)—The George Washington University Law
School, Washington, District of Columbia.

1 We heard oral argument in this case on 5 February 2020 at The George Washington
University Law School, Washington, District of Columbia, as part of this court’s Pro-
ject Outreach.
2Ms. MacLeod was at all times supervised by an attorney admitted to practice before
this court.
 United States v. Painter, No. ACM 39646

Amicus Curiae for Appellee: Alice Lee (law student, argued); Henry R.
Molinengo II, Senior Associate Dean for Administrative Affairs and
The John S. Jenkins Family Professional Lecturer in Law and Policy
(supervising attorney); C’zar Bernstein (law student)—The George
Washington University Law School, Washington, District of Columbia.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Judge D. JOHNSON delivered the opinion of the court, in which Sen-
ior Judge MINK and Senior Judge LEWIS joined.
________________________

This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________

D. JOHNSON, Judge:
A general court-martial composed of officer and enlisted members con-
victed Appellant, contrary to his pleas, of one specification of sexual assault
of Airman First Class (A1C) ES and two specifications of indecent recording
of A1C ES 3 in violation of Articles 120 and 120c, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920, 920c. 4,5 The members sentenced Appellant
to a dishonorable discharge, confinement for one month, forfeiture of all pay
and allowances, reduction to the grade of E-1, and a reprimand. The conven-
ing authority approved the adjudged sentence.
Appellant raises seven assignments of error: (1) the court-martial lacked
personal and subject matter jurisdiction; (2) the military judge abused his
discretion when he denied Appellant’s motion to suppress the contents of his
cellular phone 6 and the derivative evidence thereof; 7 (3) Appellant’s convic-

3 At the time of trial A1C ES was no longer in the military.
4Appellant was acquitted of one specification of abusive sexual contact of A1C ES in
violation of Article 120, UCMJ.
5All references in this opinion to the Uniform Code of Military Justice (UCMJ), the
Rules for Courts-Martial (R.C.M.), and the Military Rules of Evidence are to the
Manual for Courts-Martial, United States (2016 ed.).
6 The parties at trial and on appeal used the terms “cellular phone,” “phone,” and
“smartphone” interchangeably, as do we in this opinion.
7 We heard oral argument on this assignment of error.

2
 United States v. Painter, No. ACM 39646

tions are legally and factually insufficient; (4) Appellant’s Sixth Amendment 8
speedy trial right was violated; (5) the military judge who presided over Ap-
pellant’s trial abused his discretion when he did not recuse himself; (6) Appel-
lant is entitled to sentence appropriateness relief due to post-trial delay; and
(7) the sentence of a mandatory dishonorable discharge is unconstitutional.
In addition, we consider whether Appellant is entitled to relief for untimely
appellate review which we consolidate with Appellant’s sixth assignment of
error.
Regarding Appellant’s seventh issue, we find this assignment of error to
be without merit for the reasons we announced in three prior cases: United
States v. Rita, ___ M.J. ___, No. ACM 39614, 2020 CCA LEXIS 238, at *5–7
(A.F. Ct. Crim. App 17 Jul. 2020), rev. denied, No. 20-0365, 2020 CAAF LEX-
IS 571 (C.A.A.F. 15 Oct. 2020); United States v. Plourde, No. ACM 39478,
2019 CCA LEXIS 488, at *45–49 (A.F. Ct. Crim. App. 6 Dec. 2019) (unpub.
op.), rev. denied, 80 M.J. 73 (C.A.A.F. 2020); and United States v. Yates, No.
ACM 39444, 2019 CCA LEXIS 391, at *71–73 (A.F. Ct. Crim. App. 30 Sep.
2019) (unpub. op.), rev. denied, 80 M.J. 80 (C.A.A.F. 2020).
As to the remaining issues, we find no error materially prejudicial to Ap-
pellant’s substantial rights, and affirm the findings and sentence.

I. BACKGROUND
On 3 August 2016, Senior Airman (SrA) MA hosted a party at her apart-
ment in celebration of A1C ES’s and another co-worker’s birthday. Appellant,
a reservist on active duty orders at the time and a co-worker of A1C ES and
SrA MA, also attended the party. At the party, A1C ES had approximately
five shots of alcohol over the course of roughly three hours; it is unclear how
much she had to eat during this time.
SrA MA had offered her apartment as a place for people to stay if they
drank too much. Of the approximately ten guests, only Appellant and A1C ES
accepted SrA MA’s offer to stay the night. After a few hours most of the
guests had left and SrA MA began cleaning up the apartment. A1C ES was
tired and laid down on the couch to go to sleep. A1C ES remembered closing
her eyes to go to sleep. After falling asleep, the next thing A1C ES recalled
was waking up around 2300 to 2330 to Appellant “rubbing [her] crotch over
[her] leggings.” 9 A1C ES knew what time this occurred because she saw it on

8 U.S. CONST. amend. VI.
9Appellant was acquitted of abusive sexual contact for allegedly touching A1C ES in
this manner to gratify his sexual desires and without her consent.

3
 United States v. Painter, No. ACM 39646

a cable box on the television. At this point, Appellant was sitting on the end
cushion of the couch where A1C ES’s feet were and SrA MA was sleeping in a
nearby chair. A1C ES rolled over and told Appellant to stop touching her; he
did. Appellant told A1C ES they “should go lay down in [SrA MA]’s room,”
but she told him no and “basically to leave [her] alone.” The next thing A1C
ES recalled was the alarm going off the next morning.
Three days later, on Saturday, 6 August 2016, Senior Airman (SrA) CD
was socializing with Appellant and other co-workers. Appellant accompanied
SrA CD outside to smoke a cigarette. Once outside and by themselves, Appel-
lant showed SrA CD two photos and a video on Appellant’s cell phone. Ac-
cording to SrA CD, one of the photos depicted a woman with “her shirt pulled
up and her bra over her breast” and the other picture showed the same wom-
an’s other breast. The video depicted a “woman’s vagina and a thumb;” the
thumb was “playing with the clitoris and then [it] went down between the
lips and then came back up to play with the clitoris.” Appellant told SrA CD
the photos and video were of A1C ES.
On Monday, 8 August 2016, A1C ES confided in SrA MA that Appellant
had touched A1C ES over her leggings while on SrA MA’s couch and it made
A1C ES feel uncomfortable. A1C ES also told SrA MA that she blocked Appel-
lant’s phone number after he kept texting her. Shortly thereafter, A1C ES
and SrA MA learned from SrA CD that Appellant had taken sexual photos of
A1C ES the night of the party. A1C ES also remembered SrA CD telling her
about the video though SrA CD did not remember telling her “that day.” Un-
til SrA CD told her, A1C ES was unaware that Appellant had photographed
or videorecorded her that night, and she testified she did not give Appellant
permission to do either. A1C ES reported the incident to the Sexual Assault
Prevention and Response (SAPR) office that same day and subsequently to
the Air Force Office of Special Investigations (AFOSI).

II. DISCUSSION
A. Jurisdiction
Appellant claims that “the trial transcript” and record of trial fail to prove
personal and subject matter jurisdiction over Appellant. 10 Specifically, Appel-

10 Appellant’s brief also states that the orders attached to the preliminary hearing
report do not establish that the court-martial had jurisdiction over Appellant at the
time of the “preliminary hearing” or “during confinement.” However, Appellant does
not allege in this appeal that the preliminary hearing was defective, nor does he al-
lege lack of jurisdiction during confinement.

4
 United States v. Painter, No. ACM 39646

lant contends the Government failed to establish his active duty status dur-
ing the charged timeframe (i.e., on or about 3 August 2016) and failed to
properly recall him for trial. It follows, Appellant contends, that the findings
and sentence must be set aside because of these failures. We disagree, and
find the Government has shown by a preponderance of the evidence that Ap-
pellant was on active duty at the time of the offenses and his court-martial.
Therefore, Appellant’s claims that the Government lacked personal and sub-
ject matter jurisdiction must fail.
1. Additional Background
During Appellant’s trial, a prosecution exhibit was admitted without ob-
jection from the Defense—Appellant’s AF Form 938, Request and Authoriza-
tion for Active Duty Training/Active Duty Tour—as well as an amendment to
the AF Form 938. 11 Appellant was activated from 9 February 2016 through 9
March 2016, and an amendment to these orders amended the release from
active duty “thru 5 August 2016.” According to the orders, the reporting loca-
tion was the 307th Aircraft Maintenance Squadron, Barksdale Air Force
Base (AFB), Louisiana.
On 4 November 2019, this court granted the Government’s motion to at-
tach several documents including: (1) Secretary of Air Force Recall to Active
Duty Memorandum, undated; (2) General Court-Martial Convening Authori-
ty Recall Memorandum, dated 1 May 2017; (3) Special Order AB-5 (recall
dates 13–20 January 2018), dated 11 January 2018; (4) Special Order AB-11
(recall dates 22–28 April 2018), dated 20 April 2018; and (5) Special Order
AB-1 (recall dates 14–20 October 2018), dated 12 October 2018. Appellant did
not oppose the motion to attach. 12

11Air Force Form 938, Request and Authorization for Active Duty Training/Active
Duty Tour, is the order (identified as Reserve Order No. D6Z16Y in block 32), dated 9
February 2016, authorizing Appellant to active duty. Appellant was assigned to the
307th Aircraft Maintenance Squadron, Barksdale Air Force Base, Louisiana. In block
11, member was ordered to active duty for the purpose of Active Duty Operational
Support.
12In United States v. Jessie, 79 M.J. 437, 442 (C.A.A.F. 2020), the United States
Court of Appeals for the Armed Forces (CAAF) recognized that “some [of its] prece-
dents have allowed the [Courts of Criminal Appeals] to supplement the record when
deciding issues that are raised by materials in the record,” specifically with affidavits
or hearings ordered pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A.
1967) (per curiam). In Jessie, the CAAF declined to disturb this line of precedent. 79
M.J. at 444. Accordingly, we understand Jessie to permit our review of the materials
regarding jurisdiction that the Government moved this court to attach on appeal.

5
 United States v. Painter, No. ACM 39646

On 5 December 2019, this court granted, over Defense’s objection, the
Government’s motion to attach a sworn declaration from JP, the Military Pay
Supervisor for the 307th Bomb Wing, with attachments including two of Ap-
pellant’s Defense Finance and Accounting Service Military Leave and Earn-
ings Statements (LES). One LES indicates “CHK DT 20160815” for the “peri-
od covered” block and, in the remarks section, includes the language “active
duty (AD) for training 01 Aug 16 to 05 Aug 16.” The second LES indicates
“CHK DT 20160824” for the “period covered” block and, in the remarks sec-
tion, “11.0 days of accrued leave paid for AD tour ending 20160805.” JP de-
clares the documents demonstrate that Appellant was paid for duty from 1–5
August 2016, and he was on military status at that time. JP also states that
Appellant “sold all the leave days earned during the tour and as such was not
on [l]eave status at any point during his tour.”
Trial testimony from Appellant’s co-workers revealed that Appellant per-
formed military duties prior to, and after, 3 August 2016.
2. Law and Analysis
a. Jurisdiction at the Time of the Offenses
“Jurisdiction is the power of a court to try and determine a case and to
render a valid judgment. Jurisdiction is a legal question which we review de
novo.” United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006) (internal
quotation marks and citation omitted). “Generally, there are three prerequi-
sites that must be met for court-martial jurisdiction to vest: (1) jurisdiction
over the offense, (2) personal jurisdiction over the accused, and (3) a properly
convened and composed court-martial.” United States v. Nealy, 71 M.J. 73, 75
(C.A.A.F. 2012) (quoting Harmon, 63 M.J. at 101).
General courts-martial have jurisdiction “to try persons subject to this
chapter for any offense made punishable by this chapter.” Article 18, UCMJ,
10 U.S.C. § 818. “Under Article 2(a)(1), UCMJ, [10 U.S.C. § 802(a)(1),] the
military justice system has subject matter jurisdiction over a reservist when
that reservist is lawfully ordered to duty or training in the armed forces.”
United States v. Morita, 74 M.J. 116, 118 (C.A.A.F. 2015). Such jurisdiction
depends “solely on whether the accused ‘was a member of the armed services
at the time of the offense charged.’” United States v. Jordan, 29 M.J. 177,
184–85 (C.M.A. 1989) (quoting Solorio v. United States, 483 U.S. 435, 451
(1987)), vacated on other grounds, 498 U.S. 1009 (1990).
The accused’s status “is the focus for determining both jurisdiction over
the offense and jurisdiction over the person.” United States v. Ali, 71 M.J.
256, 264 (C.A.A.F. 2012) (citations omitted). “[J]urisdiction over the person
depends on the person’s status as a person subject to the Code both at the

6
 United States v. Painter, No. ACM 39646

time of the offense and at the time of trial.” Id. at 265 (internal quotation
marks and citations omitted).
“A reservist is subject to jurisdiction under Article 2(a), UCMJ, [10 U.S.C.
§ 802(a),] from the date of activation, and answerable under the UCMJ for
any offense committed thereafter.” Morita, 74 M.J. at 120 (citing United
States v. Cline, 29 M.J. 83, 85–86 (C.M.A. 1989)) (alteration and internal quo-
tation marks omitted). “Jurisdiction continues until ‘active service has been
terminated.’” United States v. Hale, 78 M.J. 268, 271 (C.A.A.F. 2019) (quoting
Article 2(c), UCMJ, 10 U.S.C. § 802(c)).
Appellant claims the charges must be dismissed because the Government
did not prove at trial that at the time of the offenses he was a member of the
Air Force on active duty and thus subject to the personal jurisdiction of a
court-martial. Ordinarily, an accused who wants to challenge jurisdiction
would move at trial to dismiss the charges under Rule for Courts-Martial
(R.C.M.) 907(b)(1). In that event, the burden of persuasion is on the Govern-
ment to show proper jurisdiction, R.C.M. 905(c)(2)(B), and appellate review is
de novo. See, e.g., Hale, 78 M.J. at 270 (citing EV v. United States, 75 M.J.
331, 333 (C.A.A.F. 2016)). “When challenged, the [G]overnment must prove
jurisdiction by a preponderance of evidence.” Id. (citations omitted). Appel-
lant challenges jurisdiction for the first time on appeal, see R.C.M. 907(b)(1),
thus we employ the fact-finding authority given to this court under Article
66, UCMJ, 10 U.S.C. § 866, in reviewing information necessary to decide the
question. See, e.g., United States v. Cendejas, 62 M.J. 334, 338 (C.A.A.F.
2006).
Ordinarily, and “[a]s a general rule, a specification is not required to state
the authority for personal jurisdiction over the accused when the accused is
on active duty.” United States v. Miller, 78 M.J. 835, 844 (A. Ct. Crim. App.
2019) (citing R.C.M. 307(c)(3), Discussion), rev. denied, 79 M.J. 242 (C.A.A.F.
2019). No special language is required in a specification to allege a basis of
personal jurisdiction for military members on active duty. R.C.M. 307(c)(3),
Discussion (C)(iv). Special language setting forth a basis for personal jurisdic-
tion is only required for persons subject to the UCMJ under Article 2(a), sub-
sections (3) through (12), none of which apply to this Appellant. United States
v. Gardner, No. ACM S30091, 2003 CCA LEXIS 198, at *4 (A.F. Ct. Crim.
App. 27 Mar. 2003) (unpub. op.).
The dates when Appellant was on active duty and under military jurisdic-
tion are well documented in matters attached to the record of trial. The doc-
umentation shows that Appellant was subject to military jurisdiction when
he committed each offense. See Article 2(a)(1), UCMJ. To reach this conclu-
sion, we need look no further than the AF Form 938 admitted at trial that
confirms Appellant’s continuous active duty status during the relevant peri-

7
 United States v. Painter, No. ACM 39646

od. Appellant was initially activated from 9 February 2016 with an initial re-
lease date of 9 March 2016, which was subsequently amended to 5 August
2016, a period that encompasses the timeframe charged by the Government.
Appellant contends that he was not on active duty on 3 August 2016 be-
cause the amendment to his AF Form 938 states inter alia: “16 days of ac-
crued leave have been included in the date shown in block 14. If no leave is
taken during the duration of this order, the final duty date will be 20 July
2016.” 13 According to Appellant, it follows therefore, that because he sold his
leave and did not take it, his final day on active duty was 20 July 2016. Ap-
pellant is partially accurate—i.e., if he elected not to take leave during his
active duty tour then his last duty day would have been 20 July 2016, allow-
ing for 16 days of leave before his release from active duty on 5 August 2016.
However, we find, whether Appellant took his leave or sold his leave, his last
day on active duty was 5 August 2016 according to his AF Form 938. This
status was further demonstrated by the LES stating Appellant was paid for
active duty from 1–5 August 2016. 14
Appellant next argues, without citation, that the language in 37 U.S.C.
§ 501(c), “[u]nused accrued leave for which payment is made under subsection
(b) is not considered service for any purpose,” means the accrued leave days
for which Appellant was paid “do not count as military service for any pur-
pose—even court-martial jurisdiction.” Appellant has failed to explain how a
Title 37 code provision authorizing payment of accrued leave at the time of
discharge, separation, or release from active duty impacts our analysis of ju-
risdiction under Article 2, UCMJ. According to Appellant’s AF Form 938,
whether Appellant took his leave or not, his active duty status ended on 5
August 2016. That he elected payment for his leave vice using it, or perhaps
carrying it over, does not mean his active duty status changed. He was still
on active duty until his release date of 5 August 2016.
The testimony, evidence at trial, and matters attached to the record con-
vincingly established Appellant engaged in the charged conduct on 3 August
2016, when he was on active duty and assigned to the 307th Aircraft Mainte-
nance Squadron, and Appellant’s reserve unit of assignment was identified in
each specification. 15 We find Appellant’s AF Form 938 shows he was serving

13 AF Form 938 block 14 is the “release date.”
14According to A1C ES’s testimony at trial, she and Appellant worked in the subse-
quent days after the party including Friday, 5 August 2016.
15 The AF Form 938 and other evidence in the record supports an additional basis to
find jurisdiction: Appellant received pay and allowances for performing military du-

8
 United States v. Painter, No. ACM 39646

on active duty while assigned to the 307th Aircraft Maintenance Squadron at
Barksdale AFB on 3 August 2016 as charged by the Government for the three
offenses that Appellant was found guilty of committing. Thus the Govern-
ment had subject matter and personal jurisdiction over Appellant at the time
of each offense.
b. Personal Jurisdiction at Trial
Appellant contends that the record of trial did not demonstrate jurisdic-
tion at the time of trial.
By undated memorandum, then-acting Secretary of the Air Force (SE-
CAF) approved a request to recall Appellant to active duty submitted by the
commander of the Eighth Air Force who was also the general court-martial
convening authority (GCMCA) who referred the charges against Appellant to
trial by general court-martial. The SECAF memorandum that was addressed
to the Eighth Air Force commander approved Appellant’s recall to active du-
ty, stating,
On 19 December 2016, you requested my approval, pursuant to
Article 2(d)(5), Uniform Code of Military Justice, [10 U.S.C.
§ 802(d)(5),] to recall [Appellant] to active duty, as needed, for
military justice action. You made this request so that, if he is
convicted, a court-martial may adjudge, and [Appellant] may
be required to serve, a sentence to confinement or restriction on
liberty. I hereby approve any recall to active duty of [Appellant]
that you have ordered or may hereafter order.
On 1 May 2017, the Eighth Air Force commander, by memorandum, or-
dered Appellant to active duty pending disposition of charges. The 8th Bomb
Wing commander issued a series of Special Orders citing 10 U.S.C. § 802(d)
involuntarily recalling Appellant to active duty for the periods of 13–20 Jan-
uary 2018; 22–28 April 2018; and 14–20 October 2018. Trial was held on 17
January 2018, 23 April 2018, 26 April 2018, and 15–19 October 2018.
Appellant, citing Article 2(c) and (d)(2)(A), UCMJ, 10 U.S.C. §§ 802(c),
(d)(2)(A), avers that even if we consider the documents above they are irrele-
vant because a reservist can only be recalled for a court-martial if the offens-
es were committed while the member was on active duty. In Appellant’s view
it follows that the recall orders are invalid because the Government cannot
prove jurisdiction at the time of the offenses. We disagree. Having already

ties after consenting to being ordered to active duty and meeting minimum age and
mental competence qualifications. See Article 2(c), UCMJ, 10 U.S.C. § 802(c).

9
 United States v. Painter, No. ACM 39646

determined Appellant was on active duty when he committed the offenses, we
conclude Appellant was properly recalled to active duty for trial by court-
martial without his consent, and the Government had personal jurisdiction
over Appellant at the time of his court-martial.
B. Search of Appellant’s Smartphone
On 10 September 2016, AFOSI interviewed Appellant after reading him
his rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831. After initially an-
swering questions, Appellant invoked his right to counsel. Agents then di-
rected him to unlock his phone resulting in the discovery of inculpatory evi-
dence which Appellant asserts was obtained in violation of his Constitutional
rights and should be suppressed.
1. Additional Background
a. The Legal Landscape
At the time of Appellant’s interview with AFOSI, the United States Court
of Appeals for the Armed Forces (CAAF) had not yet decided United States v.
Mitchell, where the CAAF held that an appellant’s Fifth Amendment 16 rights
were violated when, after the appellant requested a lawyer, agents still asked
him to enter his iPhone’s passcode in the absence of counsel, and thus the
contents of his iPhone had to be suppressed. 76 M.J. 413, 419–20 (C.A.A.F.
2017). Mitchell was decided on 30 August 2017. Id. at 413.
On 12 September 2017, the Defense filed a motion to suppress the con-
tents of Appellant’s smartphone as evidence derived from a violation of Ap-
pellant’s Fifth Amendment right to counsel. The Government opposed the
motion. On 29 September 2017, a few days before Appellant’s trial was set to
begin, Appellant filed a motion to release his trial defense counsel and re-
quested a continuance, both of which were granted by the first military judge,
Judge Eller.
In October 2017, Appellant’s smartphone was sent to the Department of
Defense Cyber Crime Center (DC3) to determine in part what analysts would
have discovered in September 2016 had Appellant never unlocked his
smartphone. The phone was analyzed at DC3 by a forensic examiner, Mr. TH.
On 4 January 2018, the Government filed a supplemental response re-
questing the next detailed military judge, Judge Degnan, deny the defense
motion to suppress the contents of the Appellant’s smartphone. On 17 Janu-
ary 2018, the Government and Defense presented evidence and argument at

16 U.S. CONST. amend. V.

10
 United States v. Painter, No. ACM 39646

an Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing. The military judge heard
testimony from the lead AFOSI investigator who seized Appellant’s
smartphone, Special Agent (SA) JJ; testimony from Mr. TH; and the witness
who saw the pictures and video when Appellant showed them to him, SrA
CD. The military judge also considered several pertinent appellate exhibits
that were entered into the record to include Appellant’s video recorded inter-
view with AFOSI and forensic analysis reports of Appellant’s phone.
In April 2018, the military judge issued a written ruling granting Appel-
lant’s motion, suppressing all derivative evidence from Appellant’s
smartphone. The Government filed a motion to reconsider the military
judge’s ruling because the military judge did not address inevitable discovery
in his initial ruling. The Defense opposed the Government’s motion to recon-
sider. On 26 April 2018, the military judge conducted another Article 39(a),
UCMJ, hearing to address the request for reconsideration and heard argu-
ment from both sides. The military judge advised the parties by email in July
2018 that he was granting the Government’s motion to reconsider based on
the inevitable discovery doctrine. At the start of Appellant’s trial in October
2018, the military judge provided the substance of the written ruling orally to
the parties. In his ruling he stated he was not reconsidering his prior decision
that AFOSI violated Appellant’s Fifth Amendment right to counsel, but he
did find that the Government had met its burden of proving inevitable dis-
covery by a preponderance of the evidence. The military judge’s written rul-
ing is dated 31 January 2019. 17 However, our review will be of the military
judge’s findings of fact contained in his oral ruling and beginning with the
actions of the AFOSI agents.
b. AFOSI
In the military judge’s oral ruling, he adopted the following findings of
fact from the Government’s motion to reconsider his ruling, which we find are
not clearly erroneous. 18
On 9 September 2016, SA [JJ] received search authorization
from the military magistrate to . . . seize and search [Appel-

17 The military judge’s written ruling is dated two days after he authenticated the
record of trial; as such, we only considered his oral ruling. See R.C.M. 905(f); United
States v. Neal, 68 M.J. 289, 296 (C.A.A.F. 2010) (holding “a case remains in an inter-
locutory posture so long as the military judge has the power to take action under the
UCMJ and Rules for Courts-Martial”).
18Unless specifically noted, the remaining findings of fact cited in this AOE are also
not clearly erroneous.

11
 United States v. Painter, No. ACM 39646

lant’s] smartphone, to include any applications which may con-
tain photographic and videographic evidence of a sexual as-
sault occurring on or about 3 August 2016. [Appellant’s]
smartphone is black and [a specific] model . . . .
On 10 September 2016 . . . AFOSI agents from Det. 812,
Barksdale AFB, LA, began interviewing [Appellant] at their of-
fice. . . . [After Appellant] requested an attorney . . . SA [JJ]
told [Appellant] the following: “I have your phone and I actual-
ly have the authority to search and seize your phone . . . you
don’t tell us the password, but you have to punch it in, open the
phone and then go to the settings and take off all the pass-
words.”
(Last omission in the original.)
[Appellant] complied and while sitting in his chair, in the in-
terview room, [Appellant] began inputting his passcode into his
smartphone. The male SA told [Appellant] to show SA [JJ] his
phone as he was inputting something into his smartphone. Ap-
pellant complied, and leaned over the table, showing SA JJ his
smartphone and disabling the passcode security feature. Both
SAs watched [Appellant] disable the security feature for ap-
proximately one minute. SA [JJ] did not see the passcode that
[Appellant] used to unlock his cellphone, she just observed him
enter something into the phone[.] Later on, AFOSI requested
that [Appellant] unlock an application on his smartphone
named “Hide it Pro.”
After the application was unlocked, AFOSI discovered several
photographs on the smartphone purported to be evidence of the
charged violations of Article 120 and 120c[, UCMJ]. They were
located in the Hide it Pro application. On 5 and 6 October 2016,
AFOSI conducted additional searches of [Appellant’s]
smartphone and found a video purported to be evidence of the
charged violations of Article 120 and Article 120c[, UCMJ]. The
video was not in the Hide it Pro application.
SA JJ testified the video was located in the “files portion of the phone”
and not in an application. As SA JJ and another AFOSI agent were looking
through the smartphone they found the video and initially SA JJ could not
get it to play because it required a password. SA JJ and another special agent
tried some passwords they had found listed in Appellant’s phone without suc-
cess. However, SA JJ started “going back and forth through the phone” and
she was able to make the video play. She does not remember exactly how she

12
 United States v. Painter, No. ACM 39646

made the video play, but she did make a recording of herself taking the steps
to make the video play. She testified she was able to play the video independ-
ent of a personal identification number (PIN). The video was less than a mi-
nute long and matched SrA CD’s description. SA JJ testified that “if I had the
phone now I’d probably be able to go through the steps.” A few weeks after
A1C ES’s initial interview, AFOSI called her back in to watch the video and
look at the pictures. A1C ES positively identified herself as the person in the
photos and video located on Appellant’s smartphone.
c. Bossier City Marshal’s Office (BCMO)
The first attempted forensic analysis on Appellant’s smartphone was con-
ducted by BCMO at the request of AFOSI. The purpose of sending the
smartphone to BCMO was to confirm that the pictures and videos discovered
on the phone originated from Appellant’s phone rather than being transferred
or received from an outside source. The military judge adopted the following
finding of fact:
On 19 October 2016, the phone was sent to [BCMO] for inde-
pendent analysis due to a 4–6 month backlog at the [DC3]. This
was the first time SA [JJ] sent evidence to BCMO; her normal
procedure was to send evidence to DC3 for analysis. BCMO an-
alyzed the phone and located several photographs purported to
be evidence of the charged violations of Article 120 and Article
120c[, UCMJ] . . . .
In addition, SA JJ testified that the deputy chief of BCMO told her that
BCMO “pretty much . . . had the same capabilities as [DC3].” SA JJ provided
BCMO information she had learned during her investigation and provided
the smartphone to them unlocked. In their written request, AFOSI requested
BCMO provide “forensic verification of photographs retrieved from a locked
application named ‘HIDEITPRO’ and a video clip found on the mobile device.”
On 9 November 2016, BCMO issued its report. BCMO was able to extract
the photographs in the Hide it Pro application but could not locate the video
on the smartphone. On 22 December 2016, AFOSI published its report of in-
vestigation.
d. Independent Forensic Examiner
After the smartphone was returned to AFOSI and their investigation had
ended, the legal office sent the phone to CP, an independent forensic examin-
er. SA JJ testified the legal office sent the smartphone to CP for “trial prep.”
The military judge adopted the following finding of fact:
In April 2017, Appellant’s phone was sent to forensic examiner
[CP] for additional analysis. [CP] found the four pictures but

13
 United States v. Painter, No. ACM 39646

was unable to locate the video purported to be evidence of the
charged violations of Article 120 and Article 120c[, UCMJ].
CP’s report revealed that she was eventually able to locate but not play
the video because it was “locked.”
e. DC3
The military judge adopted the following findings of fact on whether Ap-
pellant’s smartphone would have been sent by AFOSI to DC3 for a forensic
examination if Appellant had never unlocked his smartphone per AFOSI’s
order:
If the phone was locked and BCMO was unable to bypass the
security code, SA [JJ] was “100% sure” she would have sent it
to [DC3] to be unlocked and analyzed. Sending evidence to
[DC3] was part of her normal process and she never would
have stopped trying to access the phone.
On 6 October 2017, SA [JJ] sent the phone to DC3 to be ana-
lyzed. It was sent at the request of the Barksdale AFB Legal
Office. She included BCMO’s report with her request but did
not provide [DC3] any information about how to access the pho-
tos, or the video.
On 17 January 2018, [Mr. TH], a computer forensic expert em-
ployed at [DC3] testified. Mr. [TH] conducted a full forensic ex-
amination of [Appellant’s] cell phone pursuant to a request
from the Barksdale AFB OSI Detachment. The request asked
[DC3] to look for files containing photos and a video file of a
naked female.
SA JJ also testified that if BCMO had not been able to access the
phone, if it remained locked, she was “1000” percent sure she would
have no choice but to send the smartphone to DC3.
i. Access to the phone
Mr. TH testified DC3 was asked “if [they] could find a couple of pictures,
and a video file.” He also testified they were asked, as of “September 10th,
2016, were we able to unlock the device at that time? Did we have the capa-
bilities to do it?”
The military judge adopted the following additional findings of fact, which
we do not find clearly erroneous with the exception of the date 20 September
2016. As noted above Mr. TH was asked about the capabilities as of 10 Sep-
tember 2016—the date Appellant was interviewed and the phone was seized.

14
 United States v. Painter, No. ACM 39646

. . . Additionally, the request sought information about whether
[DC3] possessed the capability to unlock [Appellant’s]
smartphone without use of his passcode on 20 [sic] September
2016—the date it was seized. OSI did not possess and did not
provide Mr. [TH] with [Appellant’s] phone passcode. Mr. [TH]
did not use [Appellant’s] passcode to unlock the phone before
analyzing it.
On 20 September 2016, [DC3] possessed three methods that
would have allowed them to unlock [Appellant’s] phone without
his passcode. The first method involves using a tool called Cel-
lebrite Universal Forensic Extraction Device. The [specific]
model of cell phone had a vulnerability that allowed user locks
to be bypassed. To expose the vulnerability, the phone is turned
off, the batteries are pulled out, and it is connected to the Cel-
lebrite physical analyzer. Once connected it is placed into an
update or download mode. The mode then gives the examiner
the ability to copy the phone without ever having to power it on
and enter a user’s [PIN] or passcode. It is called a physical boot
loader bypass, and [is] specifically designed to bypass user
locks. The vulnerability was discovered in 2015, but Cellebrite
began providing commercial support for it in June 2016. Mr.
[TH] used this boot loader method of copying the phone’s con-
tents described above on [Appellant’s] phone and received a full
copy of the device’s contents. The second method [DC3] pos-
sessed to access the contents of the phone is called an in system
programming, and the third method is referred to as a “chip
off.” All three methods were available on 20 September 2016.
Mr. TH was 100 percent certain and there was no doubt in his
mind that his lab could have accessed the entire contents of the
phone while in a locked state on 20 [sic] September 2016.
Mr. TH testified that it would have been “fairly simple for [the other ex-
aminers at DC3] to do the exact same thing.” There was no doubt in his mind
that the other examiners at DC3 would have been able to access the phone in
the same manner he did.
ii. Access to the Hide it Pro application and photos
The military judge adopted the following pertinent finding of fact:
While analyzing [Appellant’s] cell phone, Mr. [TH] reviewed all
35,000 images on the device. During his analysis he found an
application called Hide it Pro. He found the application as part
of his normal review process. This application required a [PIN].

15
 United States v. Painter, No. ACM 39646

Mr. [TH] was able to find and view the [PIN] for the applica-
tion during his review of the device. However, because the ap-
plication only changes the name of the files and obfuscates
their location, entry of the [PIN] wasn’t necessary to review
those files. The Hide it Pro application had been used to hide
the location of the four images with a date and timestamp con-
sistent with the time of the alleged sexual assault . . . .
Mr. TH testified that he was able to locate the Hide it Pro application be-
cause part of his methodology is to “look at what apps are installed on the de-
vice, or were installed on the device” and that he deals “commonly with peo-
ple who try to hide things, obfuscate things, so [they] know to look for these
type of file vault apps.” He did not need a PIN to access the content of the ap-
plication but also testified that through his methodology he could see the
PIN. On cross-examination, Mr. TH acknowledged the intake form DC3 re-
ceived from AFOSI made him aware that he was looking for the Hide it Pro
application. However, Mr. TH also testified that because AFOSI’s request
asked for “pictures and videos” that meant “all pictures and videos.” When
asked by trial defense counsel if every DC3 examiner would have reviewed all
35,000 pictures, Mr. TH responded: “I would hope so” because “that’s our pol-
icy.” Mr. TH testified he was “100%” certain he would have been able to ac-
cess the files within the Hide it Pro application if the phone had come to him
in a locked state.
iii. Access to the video
The military judge adopted the following pertinent finding of fact which
we do not find clearly erroneous with one minor exception footnoted below.
The video file . . . was not found in the Hide it Pro application;
it was found on the phone itself. It had been encrypted with an
application . . . unique to [the specific brand of] phone. Mr. [TH]
viewed the first frame of the video but had to use decryption in
order to view the entire file. In order to decrypt the file, he
asked [DC3’s] cryptographer to write a tool allowing him access
to the phone.[ 19] This person was a Ph. D. level cryptographic
specialist. The specialist had to write a special python script to
decrypt the video on the phone. They were successful in de-
crypting the video file.

19 The cryptographer wrote a tool to access the video, not the phone.

16
 United States v. Painter, No. ACM 39646

According to Mr. TH’s first report, dated 21 November 2017, without de-
crypting the video Mr. TH was able to see an “image cache of the beginning of
[the] video file,” which depicted a female genitalia, fingers, dark pants, and a
yellow and white garment. Mr. TH testified: “As it was, I could tell where the
video was, when the video got there, how it was played originally, and then I
could tell when it was encrypted, but I could only see the first frame of the
video until we were able to decrypt the file.” The 21 November 2017 report
states “[DC3] does not currently possess the capability to decrypt this method
of encryption in an offline solution. Viewing this file would require accessing
it natively on the [phone].”
Mr. TH testified the decryption process was not based on or aided by any-
thing DC3 was provided by AFOSI or the prior forensic investigations. Mr.
TH agreed with the trial counsel’s question that at DC3 when they run into
an obstacle—“say decrypting a video”—they work until they find a solution to
the actual issue.
Mr. TH drafted a second report, dated 27 November 2017, after the DC3
cryptographer created a python-script tool that would decrypt the video. After
the file was decrypted, Mr. TH was able to view it. During cross-examination
by trial defense counsel, Mr. TH agreed with trial defense counsel that the
cryptographer’s position at DC3 was “recently filled” after the position was
vacated by the previous cryptographer. Mr. TH was not asked how a long a
gap existed between the two cryptographers.
f. Motion to Suppress Ruling
The military judge’s oral ruling on the Government’s motion for reconsid-
eration recounted the findings of fact he adopted, recited applicable law, and
explained his reasoning as follows.
[T]he government has demonstrated by preponderance of the
evidence that when the illegality occurred law enforcement
personnel lawfully possessed the [Appellant’s] smart phone and
were actively investigating and inevitably would have discov-
ered the evidence at issue. That is the pictures and video from
the [Appellant’s] smart phone in a lawful manner.
. . . The government has demonstrated sufficient evidence by
preponderance of the evidence that law enforcement personnel
would’ve inevitably discovered the content of the [Appellant’s]
smart phone, despite violating the [Appellant’s] Fifth Amend-
ment rights to counsel. SA [JJ] testified that if the [Appellant]
had refused to unlock his phone and BCMO were unable to by-
pass the lock, she would have sent it to . . . DC3 for analysis.
SA [JJ] was a hundred percent confident that would have been

17
 United States v. Painter, No. ACM 39646

her course of action . . . . And she testified that would not have
stopped her trying to access the [Appellant’s] smart phone.
Further, unlike Mitchell, in this case, the [Appellant’s] smart
phone was sent to . . . DC3 and the smartphone was examined
by a digital forensic examiner. Mr. [TH] who testified that he
had three different methods to bypass a user lock and access
the contents of the [Appellant’s] phone. Further, based on Mr.
[TH’s] experience, training, and skill, he was able to access the
contents of the [Appellant’s] smart phone without the pass
code. While the investigation into the contents of the [Appel-
lant’s] smart phone may at times appear to have been bela-
bored going to local law enforcement, and a private forensic ex-
aminer, [and] finally to . . . DC3 where Mr. [TH] personally re-
viewed 35 thousand images on the [Appellant’s] smart phone,
and a cryptologist had to write a special [p]ython script to
break the encryption on the video, the government’s attempts
to access the content of the [Appellant’s] smart phone were per-
sistent and actively led to . . . DC3 inevitably discovering the
evidence in a lawful manner. There is no legal requirement
that inevitable discovery be a neat trail devoid of deviations or
delays, rather the government must duly demonstrate that it
was actively pursuing evidence or leads that would have inevi-
tably have led to the discovery of the evidence in a lawful man-
ner, such as the case here.
2. Law
We review a military judge’s ruling on a motion to suppress for an abuse
of discretion, viewing the evidence in the light most favorable to the prevail-
ing party. United States v. Hoffman, 75 M.J. 120, 124 (C.A.A.F. 2016) (cita-
tion omitted). A military judge abuses his discretion when: (1) his findings of
fact are clearly erroneous; (2) he applies incorrect legal principles; or (3) his
“application of the correct legal principles to the facts is clearly unreasona-
ble.” United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United
States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)). “The abuse of discretion
standard is a strict one, calling for more than a mere difference of opinion.
The challenged action must be arbitrary, fanciful, clearly unreasonable, or
clearly erroneous.” United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F.
2013) (citation omitted).
Servicemembers are generally entitled to the protections of the Fifth
Amendment. United States v. Tempia, 37 C.M.R. 249, 253–55 (C.M.A. 1967).
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” As “[t]he circumstances

18
 United States v. Painter, No. ACM 39646

surrounding in-custody interrogation can operate very quickly to overbear the
will of one merely made aware of his privilege by his interrogators . . . the
right to have counsel present at the interrogation is indispensable to the pro-
tection of the Fifth Amendment privilege.” Miranda v. Arizona, 384 U.S. 436,
469 (1966). Once a suspect in custody has “expressed his desire to deal with
the police only through counsel, [he] is not subject to further interrogation by
the authorities until counsel has been made available to him, unless the ac-
cused himself initiates further communication.” Edwards v. Arizona, 451 U.S.
477, 484–85 (1981); see also Mil. R. Evid. 305(e)(3).
Evidence derived from a custodial interrogation following the accused’s
invocation of his right to counsel and made outside the presence of counsel is
generally inadmissible. Mil. R. Evid. 305(c)(2). However, evidence that would
have been inevitably discovered without the illegally obtained information is
an exception to this general rule. See Mil. R. Evid. 304(b)(3); see also Mitchell,
76 M.J. at 420.
For inevitable discovery to apply, the Government must “demonstrate by
a preponderance of the evidence that when the illegality occurred, the gov-
ernment agents possessed, or were actively pursuing, evidence or leads that
would have inevitably led to the discovery of the evidence in a lawful man-
ner.” Mitchell, 76 M.J. at 420 (quoting United States v. Wicks, 73 M.J. 93, 103
(C.A.A.F. 2014)). “[M]ere speculation and conjecture” is not enough. Wicks, 73
M.J. at 103 (alteration in original) (quoting United States v. Maxwell, 45 M.J.
406, 422 (C.A.A.F. 1996)). “This exception is only applicable ‘[w]hen the rou-
tine procedures of a law enforcement agency would inevitably find the same
evidence.’” Id. (alteration in original) (quoting United States v. Owens, 51
M.J. 204, 204 (C.A.A.F. 1999)).
Where an error is of constitutional dimensions, an appellate court must
conclude the error was harmless beyond a reasonable doubt in order to affirm
the result. United States v. Condon, 77 M.J. 244, 246 (C.A.A.F. 2018) (citing
United States v. Jerkins, 77 M.J. 225, 228 (C.A.A.F. 2018)). An error is harm-
less beyond a reasonable doubt when it “did not contribute to the verdict.” Id.
(citing United States v. Chisum, 77 M.J. 176, 179 (C.A.A.F. 2018)).
3. Analysis
We begin by adopting the Government’s assumption that Appellant’s
Fifth Amendment right to counsel was violated when SA JJ ordered him to
unlock his smartphone and Hide it Pro application with his passcode. As
such, the remaining issue is whether the military judge abused his discretion
by finding the Government met its burden under the inevitable discovery
doctrine.

19
 United States v. Painter, No. ACM 39646

Under the inevitable discovery doctrine we must view the situation as if
SA JJ had never ordered Appellant to input his passcodes and disable the se-
curity features on his smartphone. See United States v. Keller, No. ACM
37729, 2013 CCA LEXIS 665, at *11 (A.F. Ct. Crim. App. 15 Jul. 2013) (un-
pub. op.) (“This requires a court to view the situation as it existed at the in-
stant before the unlawful search and determine what would have happened
had that unlawful search not occurred.”). With that factual landscape, we
must determine whether the military judge abused his discretion when he
concluded “law enforcement personnel lawfully possessed the [Appellant’s]
smart phone and were actively investigating and inevitably would have dis-
covered the evidence at issue. That is the pictures and video from [Appel-
lant’s] smart phone, in a lawful manner.” With regard to the video, we must
further assess whether the military judge abused his discretion by concluding
the video could have been viewed.
Appellant argues the Government failed to meet its burden to prove by a
preponderance of the evidence that (1) when the illegality occurred, law en-
forcement agents possessed, or were actively pursuing evidence or leads that
would have inevitably led to the discovery in a lawful manner; and (2) routine
procedures of a law enforcement agency would inevitably find the same evi-
dence.
We find the military judge did not abuse his discretion in finding that the
evidence of the pictures and video found on Appellant’s phone would have in-
evitably been discovered in a lawful manner.
a. AFOSI Possessed or Was Actively Pursuing Leads
The military judge found that when the illegality occurred, law enforce-
ment personnel lawfully possessed Appellant’s smartphone and were actively
investigating.
Appellant contends that at the time of the illegality SA JJ did not possess,
nor was she actively pursuing, evidence or leads that would have inevitably
led to the discovery of the evidence in a lawful manner because she had al-
ready interviewed the witnesses and obtained a search authorization for Ap-
pellant’s smartphone. We disagree with Appellant’s contentions that SA JJ
did not possess leads and was not actively pursuing them.
At the time of the illegality, AFOSI possessed a search authorization to
search and seize Appellant’s phone, the validity of which Appellant has never
contested. SA JJ had possession of Appellant’s smartphone, informed Appel-
lant of the search authorization, and then ordered Appellant to unlock his
smartphone and disable the password. SA JJ subsequently sent Appellant’s
phone for analysis. We find the military judge did not abuse his discretion by
finding that when the illegality occurred, law enforcement personnel lawfully

20
 United States v. Painter, No. ACM 39646

possessed the Appellant’s smartphone and were actively investigating. We
next address whether routine procedures would have ensured access to Ap-
pellant’s smartphone, photos and video by examining bypassing the
smartphone’s user lock, accessing the pictures in the Hide it Pro application,
and finally accessing and viewing the video.
b. Routine Investigative Procedures
i. Bypass user lock
The military judge concluded that if the Appellant had refused to unlock
his smartphone, and BCMO was unable to bypass the lock, SA JJ would have
sent the smartphone to DC3 for analysis. He further found that SA JJ was
“100 percent” confident that would have been her course of action, and she
testified she would not have stopped trying to access Appellant’s smartphone.
Since the military judge determined the smartphone would first be sent to
BCMO, we begin our analysis there.
According to SA JJ’s testimony, she was told that BCMO had the same
capabilities as DC3. However, no evidence was introduced demonstrating
BCMO’s capability to bypass the user lock. On appeal, the Government con-
ceded this point during oral argument when it acknowledged the “record is
not developed” on BCMO’s capabilities. However, the military judge as part
of his adopted findings of fact found that when BCMO attempted to analyze
Appellant’s phone, BCMO “could not locate the video.” That was when the
smartphone was sent to BCMO with the user lock disabled by Appellant. It
follows that even if BCMO had the capability to bypass Appellant’s security
features, BCMO still would not find the video and SA JJ would have sent the
smartphone to DC3 because she wanted access to all of the smartphone’s con-
tent. SA JJ was asked, “[I]f BCMO had been unable to access any part of the
phone, what would your next step have been?” (Emphasis added). She re-
sponded: “We would have had to send it to [DC3] and just wait.” At that point
SrA CD had already informed AFOSI that Appellant showed him the video of
A1C ES from his phone. We recognize that SA JJ did not send the
smartphone to DC3 after BCMO could not find the video. However, at that
point, SA JJ had access to both the pictures and the video on the smartphone
and Mitchell had not yet been decided. We find the military judge did not
abuse his discretion by concluding the smartphone would have been sent to
DC3 for analysis.
Having determined the smartphone would have gone to DC3 for analysis,
we next determine whether the military judge erred when he concluded DC3
had the ability to bypass the user lock. The military judge found that Mr. TH
testified he had three different methods to bypass the user lock and access

21
 United States v. Painter, No. ACM 39646

the contents of the smartphone without Appellant’s “passcode,” all three of
which were available in September 2016.
Appellant contends that the backlog at DC3 of four to six months at the
time of the illegality demonstrates that DC3 was not an option. We disagree;
what it demonstrates is the Government might have had to wait four to six
months.
Appellant next posits that that the military judge failed to account for SA
JJ’s testimony that it was her leadership, and not SA JJ, who determines
where smartphones are sent for analysis. We are not persuaded. Appellant
fails to acknowledge SA JJ’s subsequent testimony that “they often have
weekly meetings where [they] discuss the phones. So pretty much the next
course of action would have been discussed at that time” and her acknowl-
edgement that in the “normal course of business” if she needed “to get into
something” and cannot, it is sent to DC3.
Appellant argues that although Mr. TH could say with certainty DC3 had
the tools available to access the smartphone, he could not state whether the
tools could have worked. Appellant contends that Mr. TH’s testimony failed
to address critical bugs or vulnerabilities which would have impacted his ac-
cess and it was mere speculation to say otherwise because no one—not
BCMO, CP, or Mr. TH—had to force their way into the phone because it was
sent to them unlocked. We disagree. Although Mr. TH agreed during his
cross-examination by trial defense counsel that there are bugs or vulnerabili-
ties “that we never become aware of,” in subsequent testimony he stated
there was no doubt in his mind that other analysts working at DC3 could
have used the same three methods available at DC3 to access the
smartphone’s contents.
Finally, Appellant argues there was no guarantee that Mr. TH would
have been the examiner assigned to the smartphone, and therefore assign-
ment to a less experienced examiner “could have led to less fruitful results.”
However, Appellant fails to acknowledge Mr. TH’s testimony that it would
have been “fairly simple” for any other examiner at DC3 to access the phone,
and that examiners consult with each other if they have difficulty when eval-
uating a device, contrary to Appellant’s assertion that it was Mr. TH’s unique
level of experience which allowed access to the phone. We find the military
judge did not err when he concluded that DC3 would have bypassed the user
lock on Appellant’s smartphone.
ii. Pictures in Hide it Pro application
Having concluded the smartphone’s user lock would have been bypassed,
we must next determine if the pictures could have been accessed. Again,

22
 United States v. Painter, No. ACM 39646

based on the military judge’s finding of fact concerning BCMO discussed
above, we must begin our analysis there.
According to the report from BCMO, SA JJ was seeking “forensic verifica-
tion” of pictures in the Hide it Pro application and a “video clip on the mobile
device.” Although BCMO accessed the pictures from the Hide it Pro applica-
tion during its analysis, they already knew of the existence of the Hide it Pro
application based on AFOSI’s search after ordering Appellant to bypass his
user lock. Further, as they never found the video and SA JJ needed access to
the pictures, video and metadata, we conclude the military judge did not err
in his determination that the smartphone would have been sent to DC3.
As to DC3, the military judge found that Mr. TH was “100 percent” cer-
tain that his lab could have accessed the entire contents of the locked phone
while in a locked state on “20 September 2016.” 20 As part of his normal pro-
cess, Mr. TH found the Hide it Pro application which required a PIN. Mr. TH
was able to see the PIN, and recovery email in the preference file for the ap-
plication, but the PIN was not necessary to view the pictures. 21
Appellant argues that Mr. TH only found the Hide it Pro application be-
cause SA JJ told DC3 of its existence on Appellant’s phone. We disagree. Mr.
TH testified that as part of his methodology he looks at the applications in-
stalled on the device and DC3 commonly deals with people who try and ob-
fuscate things so they know to look for those type of “vault” applications.
In Mitchell, the CAAF concluded “the Government’s eventual access to
the phone’s contents was not inevitable, but rather ‘a matter of mere specula-
tion and conjecture, in which [the Court] will not engage.’” 76 M.J. at 420 (al-
teration in original) (quoting Maxwell, 45 M.J. at 422). Additionally, the ma-
jority in Mitchell specifically noted that the Government did not argue that a
digital forensic examiner could have bypassed Mitchell’s security. Id. at 420
n.8. That is not the case here—the Government clearly demonstrated that
access to the pictures in the Hide it Pro application was inevitable. As such,
we find the military judge did not abuse his discretion by finding the Gov-

20 Although Appellant’s subject interview was on 10 September 2016, the facts the
military judge adopted had a scrivener’s error indicating 20 September 2016. This
scrivener’s error does not impact our analysis. The testimony during the motions
hearing used the correct date of 10 September 2016. Further, Mr. TH’s testimony
indicated DC3 had the capability to access the phone prior to 10 September 2016.
21Mr. TH testified during findings that the recovery email address included Appel-
lant’s last name.

23
 United States v. Painter, No. ACM 39646

ernment demonstrated by a preponderance of the evidence that law enforce-
ment personnel would have inevitably discovered the pictures.
iii. Finding and Viewing the Video
Now, we must determine if finding and viewing the video was inevitable.
Again, we begin our analysis with BCMO based on the military judge’s find-
ing of fact.
The military judge found that BCMO could not find the video after receiv-
ing the phone in an unlocked state. SA JJ testified that she never would have
stopped trying to access the phone. We recognize that SA JJ closed her inves-
tigation without sending the phone to DC3 even after BCMO could not access
the video. However, at that point she was able to access the video herself, and
she was only sending the phone to BCMO to confirm her findings and access
the metadata. As such, we conclude the military judge did not err in conclud-
ing the smartphone would have been sent to DC3.
At DC3, before he even began his analysis, Mr. TH knew a witness had
seen the video describing it as Appellant “playing with Victim’s vaginal area.”
Mr. TH found the video, and could see the first frame, but he was unable to
view the video because it was encrypted with an application called Privacy
Lock unique to Appellant’s smartphone model. However, Mr. TH had a vast
amount of information just from his analysis of the first frame. He could tell
where the video was located on the smartphone, when the video got there,
how it was played originally, when the video was played, and when it was en-
crypted. Moreover, Mr. TH knew from his examination that the video file was
41.429 seconds in length depicting a female’s genitalia, fingers, dark pants,
and a yellow and white garment. In addition, he knew the video was taken
with the Appellant’s smartphone on the night of 3 August 2016 (local time)
during the same time the five picture files were created. Finally, he knew the
video was viewed on the night of 5 August 2016.
Mr. TH’s initial 21 November 2017 report stated “[DC3] does not current-
ly possess the capability to decrypt this method of encryption in an offline so-
lution. Viewing the file would require accessing it natively on the [Appellant’s
smartphone].” This capability was demonstrated by SA JJ twice during the
investigation when she initially found the video and played it and when she
played it for A1C ES in October 2016. 22 However, SA JJ accessed and viewed
the video after the smartphone had been unlocked by Appellant. Neither Mr.
TH’s reports, nor his testimony, explain the path he would have taken to view

22SA JJ testified she also played the video for trial defense counsel and a member of
the legal office prior to April 2017.

24
 United States v. Painter, No. ACM 39646

the video natively. The record demonstrates that Mr. TH used the Cellebrite
Universal Forensic Extraction Device to copy the smartphone to bypass Ap-
pellant’s user lock. It is not clear from his motion hearing testimony whether
Mr. TH discovered Appellant’s PIN for the smartphone, or the method he
would use to bypass the user lock in order to gain access to the video using
the smartphone itself. 23
The military judge concluded that a cryptographer had to write a special
python script to break the encryption of the video. However, whether due to
the Government’s oversight at trial or a lack of evidence, there is no indica-
tion in the record as to the cryptologic capabilities of DC3 in September 2016
or even four to six months later when one takes into account the backlog at
DC3. We do not know when the cryptographer position at DC3 became va-
cant. We do know there was a cryptographer at DC3 on 21 November 2017
because Mr. TH indicates in his report that he was seeking assistance from
the cryptographer on staff at DC3. In January 2018, Mr. TH testified the
cryptographer position at DC3 “had recently been filled” without any indica-
tion of when the previous cryptographer left or when the position was filled.
However, the military judge concluded “a cryptologist had to write a special
python script to break the encryption of the video.”
The military judge also concluded the “[G]overnment’s attempts to access
the content of [Appellant’s] smartphone were persistent and actively led to
[DC3] inevitably discovering the evidence in a lawful manner.” Further, dur-
ing his testimony Mr. TH agreed that at DC3 when they run into a problem—
such as decrypting a video—they work until they find a solution to the actual
issue. At that point, despite the illegality, SrA CD had reported seeing the
video on Appellant’s smartphone. Mr. TH could see the first frame of the vid-
eo and possessed a wealth of other information concerning the video.
Despite a potential gap of a cryptographer at DC3, we cannot say the mil-
itary judge abused his discretion in concluding the Government demonstrated
by a preponderance of the evidence that the entire video, not just the first
frame, would have been inevitably discovered based on all the other infor-
mation before him. This case is distinguishable from Mitchell in that the
Government lawfully possessed a vast amount of information from the cell
phone and a forensic examiner testified concerning his ability to find and
view the video. It is not “a matter of mere speculation or conjecture” for the

23However, Mr. TH did testify, during the findings portion of the trial, that the Cel-
lebrite’s physical analyzer did find a file; “what it determined was a [PIN], a likely
[PIN] for the phone.”

25
 United States v. Painter, No. ACM 39646

military judge to conclude that the playing of the video was inevitable. See
Mitchell, 76 M.J. at 420 (quoting Maxwell, 45 M.J. at 422).
C. Legal and Factual Sufficiency
Appellant challenges his conviction for one specification of sexual assault
of A1C ES and two specifications of indecent recording of A1C ES. We are
convinced his convictions are legally and factually sufficient.
1. Additional Background
Our assessment of legal and factual sufficiency is limited to the evidence
produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (ci-
tations omitted). As such, it is beneficial to review the facts presented to the
factfinder, some of which already were presented to the military judge during
the hearings on the motion to suppress discussed previously.
Appellant argues his conviction is legally and factually insufficient based
upon his assertion that: (1) A1C ES’s testimony is not credible and is directly
contradicted by her own actions which indicates sexual interest in Appellant;
(2) A1C ES was not asleep but was instead experiencing a blackout; and (3)
Appellant had a reasonable mistake of fact as to consent. We are not per-
suaded.
A1C ES testified during trial that on 2 August 2016, the day before the
date of the charged offenses, she attended a cookout at Appellant’s hotel with
SrA MA. After they finished eating, SrA MA left, and Appellant and A1C ES
decided to go swimming at the hotel pool. While swimming, A1C ES and Ap-
pellant had a conversation about a tattoo of a beer mug that A1C ES had on
her buttocks.
During the party at SrA MA’s apartment the next day, while A1C ES was
out on the patio talking to someone else, Appellant sent a text to A1C ES and
said, “How does his d**k taste?” A1C ES stated she thought it was “weird and
inappropriate,” but sarcastically responded “Pretty good.” Appellant also sent
a text stating something along the lines of “I was going to send you a d**k pic
but it was actually going to be [SrA MA].” A1C ES said she did not respond
because the text didn’t make sense to her.
A1C ES testified that up to the point she woke up to Appellant touching
her leggings she had no “blank spots” in her memory. She stated she decided
to go back to bed because Appellant did not “come off as someone who would
continue to sexually assault [her] in [her] sleep.” A1C ES also clarified that
after she went “back to bed” she remembers falling asleep and her next
memory is an alarm going off the next morning.
A1C ES testified that on Friday, 5 August 2016, Appellant sent a text
stating “What’s up?” and she did not respond. Then Appellant sent a text ask-

26
 United States v. Painter, No. ACM 39646

ing “Are you mad at me? You’re acting weird.” A1C ES replied, “No, every-
thing is fine.” A1C ES explained she responded in that manner because Ap-
pellant was a reservist and that was supposed to be one of his last days at
work, she did not want to “make things weird,” and that she felt “uncomfort-
able.” Later that day, Appellant sent a text to A1C ES stating that he wanted
to apologize for what happened the night of the party and that he “[w]as
drunk enough to f**k around, but not drunk enough to f**k,” and said that he
“[w]anted to f**k around but [A1C ES] was falling asleep.” A1C ES testified
she was “creeped out” because she did not feel she gave Appellant any “indi-
cation that any of this was okay.” She further testified that she responded to
one message where Appellant was “kind of asking if [she] remembered what
happened,” and A1C ES responded to Appellant, “yeah, you were trying to
touch me over my leggings.” She said she was “weirded out,” so she blocked
Appellant’s phone number and deleted the “creepy” text messages on Friday,
5 August 2019 before she reported Appellant’s conduct to law enforcement
the following Monday.
That following Monday, A1C ES told SrA MA about waking up to Appel-
lant touching her over her leggings, sending her text messages, and blocking
his phone number. A1C ES explained she knew that SrA MA was a victim
advocate, and they had become “close over the last month.” Within an hour of
SrA MA and A1C ES’s conversation, SrA CD told A1C ES about the pictures
and video he had seen on Appellant’s phone, which impacted her decision to
go to the SAPR office. A1C ES stated she was unaware of any pictures or vid-
eo, so if they existed, they were taken without her permission.
Mr. TH testified during findings and was recognized as an expert in the
field of computer forensics. He provided the members much of the same in-
formation as he did to the military judge during the motions hearing. He tes-
tified he received Appellant’s smartphone for analysis and used the Cellebrite
tool to make a copy of the contents of the phone. During his analysis he found
the Hide it Pro application, which was associated with the email account
bearing Appellant’s last name. In the Hide it Pro application he found four
photographs including two pictures of a woman’s breast and two of a woman’s
vagina. The file names included the year, the month, the day, underscore, the
hour, the minute, the second; then ending with “.jpg.” Therefore, “20160803_
232341.jpg” means the picture file was created on August 3, 2016 at 232341
hours local time where the device is located. In addition to the picture noted
above, Mr. TH also found pictures 20160803_231601.jpg; 20160803_
231645.jpg; and 20160803_231803.jpg. He also testified he found a video on
Appellant’s smartphone, which was created after the second picture but be-
fore the third picture was created, and was encrypted with a privacy lock
unique to [the specific brand of] smartphones. The encryption on the video
was associated with an email account associated with Appellant’s name. Ac-

27
 United States v. Painter, No. ACM 39646

cording to Mr. TH’s testimony, the video file was originally created 3 August
2016 at 2316 hours, 56 seconds. Through his analysis Mr. TH testified that
both the video player and Hide it Pro application were accessed on 6 August
2016. The privacy lock application closed at about 2302 hours, and about 49–
50 seconds later the video application closed. At about 2358 hours the Hide it
Pro application closed. Since there was only one encrypted video, Mr. TH
opined the encrypted video file opened at 2302 hours and was played. The
pictures and video recovered from Appellant’s smartphone were admitted in-
to evidence, along with the bra A1C ES wore that night and the blanket she
had over her.
During trial, Dr. PS, an expert criminal forensic psychologist, was called
by the Defense to testify. Dr. PS testified that he specializes in memory and
memory-related issues. He testified about two types of blackouts, an “en bloc
blackout” where someone may have hours they cannot account for; and a
“fragmentary blackout” where one experiences gaps in recall. He clarified
that an individual experiencing fragmentary blackout can talk and engage in
sexual conduct but not record memory. He stated further that alcohol dis-
rupts how information is taken in and processed to form short and long-term
memory. Additionally, alcohol affects how quickly a person falls asleep by
causing them to fall asleep faster but sleep tends to be more easily disrupted,
which in turn, affects memory storage. Dr. PS also relayed that individuals
who had experienced blackouts in the past are more likely to experience
blackouts in the future and have greater memory recall issues when they
drink alcohol. Also, women are far more likely to experience fragmentary
blackouts due to women’s smaller body mass and lower water content as
compared to men. A1C ES testified that she had experienced a blackout on at
least four or five occasions.
2. Law
We only affirm findings of guilty that are correct in law and fact and, “on
the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10
U.S.C. § 866(c). We review issues of legal and factual sufficiency de novo.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omit-
ted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable
doubt, however, 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

28
 United States v. Painter, No. ACM 39646

(C.A.A.F. 2018). Circumstantial evidence may suffice. See United States v.
Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014) (citing Brooks v. United States, 309
F.2d 580, 583 (10th Cir. 1962)). “[I]n resolving questions of legal sufficiency,
we are bound to draw every reasonable inference from the evidence of record
in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001) (citations omitted). As a result, “[t]he standard for legal suffi-
ciency involves a very low threshold to sustain a conviction.” United States v.
King, 78 M.J. 218, 221 (C.A.A.F. 2019) (alteration in original) (citation omit-
ted).
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 presump-
tion 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).
In order to find Appellant guilty of sexual assault as charged here, the
Government was required to prove beyond a reasonable doubt that on or
about 3 August 2016, at or near Shreveport, Louisiana: (1) Appellant commit-
ted a sexual act upon A1C ES by penetrating her vulva, however slightly,
with his finger; (2) Appellant did so when A1C ES was asleep; (3) Appellant
knew or reasonably should have known that A1C was asleep; and (4) Appel-
lant did so with an intent to gratify his sexual desire. See Manual for Courts-
Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 45.b.(4)(e). “Sexual act”
includes the penetration, however slight, of the vulva of another by any part
of the body, with an intent to gratify the sexual desire of any person. MCM,
pt. IV, ¶ 45.a.(g)(1)(B).
The term “consent” means a freely given agreement to the con-
duct at issue by a competent person. An expression of lack of
consent through words or conduct means there is no consent.
Lack of verbal or physical resistance or submission resulting
from the use of force, threat of force, or placing another person
in fear does not constitute consent. A current or previous da-
ting or social or sexual relationship by itself or the manner of
dress of the person involved with the accused in the conduct at
issue shall not constitute consent.
MCM, pt. IV, ¶ 45.a.(g)(8)(A).

29
 United States v. Painter, No. ACM 39646

A sleeping person cannot consent. MCM, pt. IV, ¶ 45.a.(g)(8)(B). “Lack of
consent may be inferred based on the circumstances. All the surrounding cir-
cumstances are to be considered in determining whether a person gave con-
sent, or whether a person did not resist or ceased to resist only because of an-
other person’s actions.” MCM, pt. IV, ¶ 45.a.(g)(8)(C).
In order to find Appellant guilty of the first specification of indecent re-
cording as charged here, the Government was required to prove beyond a
reasonable doubt that: (1) Appellant knowingly recorded the private area of
A1C ES, to wit: her genitalia; (2) that Appellant did so without the consent of
A1C ES; (3) the recording was made under circumstances in which A1C ES
had a reasonable expectation of privacy; and (4) that Appellant’s conduct was
wrongful. 24 See MCM, pt. IV, ¶ 45c.b.(2).
In order to find the Appellant guilty of the second specification of indecent
recording as charged here, the Government was required to prove beyond a
reasonable doubt that on or about 3 August 2016, at or near Shreveport, Lou-
isiana: (1) Appellant knowingly recorded the private area of A1C ES, to wit:
her genitalia, areola and nipple; (2) that Appellant did so without the consent
of A1C ES; (3) the recording was made under circumstances in which A1C ES
had a reasonable expectation of privacy and (4) that Appellant’s conduct was
wrongful. See MCM, pt. IV, ¶ 45c.b.(2); see also Article 120c.a.(a)(2), UCMJ,
10 U.S.C. § 920c.a.(a)(2).
“The term ‘private area’ means the naked or underwear-clad genitalia,
anus, buttocks, or female areola or nipple.” MCM, pt. IV, ¶ 45c.a.(d)(2). A rea-
sonable expectation of privacy exists in circumstances where “a reasonable
person would believe that a private area of the person would not be visible to
the public.” MCM, pt. IV, ¶ 45c.a.(d)(3)(B). “Consent” has the same definition
as described above.
The defense of mistake of fact as to consent applied if Appellant, because
of ignorance or mistake, incorrectly believed that A1C ES consented to the
sexual act and the recording. See R.C.M. 916(j)(1). In order to rely on a mis-
take of fact as to a consent defense, Appellant’s belief must be reasonable un-
der all the circumstances. 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)). Once raised, the Government bears the burden to prove be-

24 The requirement for an appellant’s conduct to be wrongful—i.e., without legal jus-
tification or lawful authorization—is not an element listed in the MCM, but it is re-
quired by the statute. Compare Article 120c.a.(a), UCMJ, 10 U.S.C. § 920c.a.(a), with
MCM, pt. IV, ¶ 45c.b.(2).

30
 United States v. Painter, No. ACM 39646

yond a reasonable doubt that the defense does not exist. R.C.M. 916(b)(1); see
United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019).
3. Analysis
We begin our analysis with a discussion of the sexual assault and then
the indecent recording offenses. We then address Appellant’s claims as they
relate to the three offenses.
a. Sexual Assault
The Government introduced into evidence the video found on Appellant’s
smartphone which depicts penetration, however slight, of the external genital
organs of a female with a thumb and finger. SrA CD testified Appellant
showed him the video from his smartphone and that Appellant stated the
video depicted A1C ES. Moreover, A1C ES confirmed the woman in the video
was her. The members could conclude Appellant was the person penetrating
A1C ES’s vulva with his finger because the video was on his phone. In their
review of the video, the members could determine that because A1C ES was
not moving in the video and there was a sound consistent with her snoring
that A1C ES was asleep. Furthermore, the members could find that Appel-
lant knew or should have reasonably known A1C ES was asleep; and Appel-
lant’s actions were without consent. Finally, the members could find that,
under the circumstances, Appellant’s intent was to gratify his sexual desire
as opposed to some innocent purpose, such as to wake her up or get her atten-
tion. In this regard, Appellant admitted his intent was to gratify his sexual
desire when he texted that he “[w]as drunk enough to f**k around, but not
drunk enough to f**k,” and “[w]anted to f**k around but [A1C ES] was falling
asleep.”
b. Indecent Recording Offenses
Both indecent recording specifications are supported by the photos and
video found on Appellant’s smartphone. The video depicts the female genita-
lia. The photos depict a woman’s breast, including the areola and nipple, as
well as female genitalia. Appellant told SrA CD that the photos and video
were of A1C ES. The members could conclude that because the images were
on Appellant’s phone, and hidden with an application associated with an
email using his last name, that he took the images and that his text messag-
es described above to A1C ES proved his intent to gratify his sexual desires.
The members could also determine that the nature and circumstances in
which the images were captured and stored proved the wrongfulness of Ap-
pellant’s actions because A1C ES testified she was asleep and did not con-
sent. Moreover, A1C ES testified she fell asleep and described no memory of
being photographed or touched under her leggings. Furthermore, the mem-
bers could determine that A1C ES was asleep and a sleeping person could not

31
 United States v. Painter, No. ACM 39646

consent. Finally, the members could determine that a person who falls asleep
fully clothed at a friend’s house, on a couch in the living room, has not aban-
doned an expectation of privacy because it is unreasonable for a victim under
the circumstances to believe that her private area would be visible to the pub-
lic as she slept.
c. Appellant’s Claims
Appellant’s first argument revolves around the credibility of A1C ES. Ap-
pellant contends that A1C ES’s testimony that Appellant’s conduct was inap-
propriate and “weird” is directly contradicted by her own actions. Appellant
highlights A1C ES’s responses to Appellant’s texts during the party and the
conversation about her tattoo on her buttocks at the pool. However, a rational
factfinder could conclude that A1C ES’s discussion of a tattoo on her buttocks
the day before the sexual assault and responding in kind to a sexual comment
from Appellant failed to contradict the proof of the elements of the charged
offenses.
Appellant next contends that because A1C ES deleted the text messages
from Appellant “shortly” before going to law enforcement, her testimony that
they were “creepy” was refuted. However, a rational factfinder could deter-
mine that Appellant’s additional claim that A1C ES only deleted her messag-
es with Appellant “shortly” before going into AFOSI for an interview was not
supported by the evidence. A1C ES testified that she went to AFOSI on Mon-
day, 8 August 2016, but had already deleted the messages on Friday, 5 Au-
gust 2016. At the time she deleted the messages, Appellant had yet to show
SrA CD the pictures and video. A1C ES further testified that she would have
turned over her phone to AFOSI if they had asked and she was unaware that
the deleted text messages could have potentially been recovered.
Appellant next claims on appeal as he did at trial that A1C ES was not
asleep, but actually experiencing a blackout. 25 Appellant highlights A1C ES’s
testimony, which Appellant contends demonstrated multiple gaps in her
memory. Dr. PS also testified that there were some “elements” that were con-

25 Defense’s witness Dr. PS testified at trial that during an alcohol blackout
a person is conscious, they are conversant, they are engaged, but they
are not laying down memories during the blackout phase. So in a nut-
shell, their hippocampus has been knocked off-line. It’s a very subtle,
kind of, disruption within the brain, but once the hippocampus goes
off-line an individual isn’t recording memory, but they are able to talk
to, engage. Research shows folks . . . in blackout, are able to perform
very complex behaviors.

32
 United States v. Painter, No. ACM 39646

cerning indicating a blackout by A1C ES. However, a rational factfinder could
determine that Appellant’s argument that A1C ES was blacked out and not
actually asleep was inconsistent with the evidence. A1C ES testified she had
a memory of closing her eyes to fall asleep and had no “blank spots” in her
memory that she could not recall. Dr. PS testified that a specific memory of
closing your eyes and laying down, and actually falling asleep, is not con-
sistent with a blackout. Finally, the members could have relied on Dr. PS’s
testimony that memories tend to fade as they become farther in time from the
actual event that occurred to explain A1C ES’s inability to recall certain de-
tails. Her testimony was over two years after the offenses were committed.
Finally, Appellant argues on appeal as he did at trial that he had a rea-
sonable mistake of fact regarding the consent of A1C ES. Appellant points to
the suggestive text messages and argues that given A1C ES’s history of
blackouts “it is a real possibility she was awake and simply cannot recall and
she was engaged to the point where [Appellant] reasonably believed she was
consenting.” However, based on the evidence at trial the members could have
concluded Appellant’s mistake of fact, if held, was not reasonable.
Viewing the evidence in this case in the light most favorable to the Prose-
cution, we conclude a rational trier of fact could find the essential elements of
the offenses of which Appellant was convicted beyond a reasonable doubt.
The members’ findings of guilty are therefore legally sufficient. We have tak-
en a fresh and impartial look at the evidence, and we are ourselves con-
vinced, beyond a reasonable doubt, that Appellant is guilty. Thus, his convic-
tions are factually sufficient.
D. Sixth Amendment Right to Speedy Trial
On appeal, Appellant avers that “[f]rom April 2018—when the defense
was ready to proceed—until October 2018, there was six (6) months of delay”
which was a violation of his Sixth Amendment right to a speedy trial.
1. Additional Background
Charges were preferred against Appellant on 1 April 2017, and a prelimi-
nary hearing was conducted on 8 May 2017. Charges were referred on 15
June 2017 and trial was originally docketed for 2 October 2017. On 29 Sep-
tember 2017, Appellant filed a motion to release his counsel and requested a
continuance, which was granted. Trial was then docketed for 15 January
2018. On 15 January 2018, Appellant again requested a continuance due to
illness of one of his military defense counsel. Trial was rescheduled for 23
April 2018. On 17 January 2018, Appellant was arraigned and the military
judge heard evidence on the Defense’s motion to suppress. Both sides argued
the applicability of the inevitable discovery doctrine to the facts of Appellant’s

33
 United States v. Painter, No. ACM 39646

case. Appellant is not alleging the delays prior to April 2018 violated his
Sixth Amendment right to a speedy trial.
On 21 April 2018, the military judge notified the parties via email that he
was granting the defense motion to suppress. He issued his written ruling on
23 April 2018. The same day, in an Article 39(a), UCMJ, session the military
judge noted that the Government was considering whether to appeal his rul-
ing pursuant to Article 62, UCMJ, 10 U.S.C. § 862. On 24 April 2018, trial
counsel informed the military judge that the Government would be asking
him to reconsider his ruling, at which point the military judge gave the Gov-
ernment one day to file its motion and the Defense one day to respond. In its
response, the Defense did not object to any continuance and instead request-
ed an Article 39(a), UCMJ, session to present additional evidence and argu-
ment on the motion to reconsider.
The first time trial defense counsel referenced Appellant’s speedy trial
rights was shortly after the Government filed its reconsideration motion. On
24 April 2018, trial defense counsel emailed the military judge and trial
counsel objecting to the Government “artificially extending the 72 hour clock”
to raising the possibility of filing an appeal to this court pursuant to Article
62, UCMJ, by filing a motion to reconsider. The Defense formally objected to
the Government providing notice of appeal after “0855 CST on Thursday, 26
April 2018.” Trial defense counsel went on to state that Appellant “desire[d]
resolution of this as soon as possible,” objected to the Government “causing
an artificial delay in this decision to appeal,” and argued the delay prejudiced
their “client and his right to a speedy trial.”26
On 26 April 2018, the military judge heard argument on the motion to re-
consider via video teleconference. The military judge stated that he would do
his best to complete the rulings, with the motion to reconsider his ruling on
suppression being the most important. When the military judge raised the
issue of docketing the trial, he advised the parties he would provide his cal-
endar so they could discuss trial dates. During this Article 39(a), UCMJ, ses-
sion the military judge inquired, “I don’t know if you all have had a chance to
discuss trial dates amongst yourselves,” at which point trial counsel informed
the military judge, “We’ve had a chance to briefly discuss, sir, and I think re-
ally what will drive everything is the defense team’s availability.” Appellant
made no attempt to clarify trial counsel’s statement and raised no objection
to the delay.

26 The issue of whether the Government artificially extended the 72 hour timeline to
file an appeal with this court was moot, as no appeal was filed.

34
 United States v. Painter, No. ACM 39646

On 4 May 2018, the trial counsel emailed the military judge and defense
counsel inquiring about the status of the military judge’s ruling on its motion
to reconsider the suppression of the contents of Appellant’s smartphone. On
the same day the military judge responded, “I am working on this ruling in
conjunction with my other cases, but I recognize this is a priority . . . . I have
given myself two weeks to complete, but not later than the end of the month.”
On 1 and 18 June 2018, the trial counsel emailed the military judge and
defense counsel inquiring about the status of the ruling. On 18 June 2018,
the military judge responded apologizing for not having responded to the 1
June email and stating that he “will get the ruling completed this week.” On
28 June 2018, the trial counsel again emailed the military judge and ex-
plained that the Government was considering whether to file a writ to this
court to “preserve Appellant’s speedy trial right.” On the same day, the mili-
tary judge responded stating that the case he was on had been continued and
that he would complete the ruling in the next day or so.
On 2 July 2018, the military judge sent an email to the parties stating the
following:
I have reconsidered my previous ruling granting the defense
motion to suppress the cell phone and I am now DENYING the
defense motion to suppress the cell phone based on inevitable
discovery. I will issue a written ruling prior to our proceeding
in Oct.
The military judge issued a scheduling order dated 2 July 2018 indicating
the date of trial “ha[d] been docketed for 15–19 October 2018” but it is not
clear in the record when the trial was docketed for those days.
On 2 July 2018, civilian trial defense counsel emailed trial counsel and
the military judge requesting that the military judge issue his written ruling
so that the Defense could consider whether to request a motion to reconsider.
Civilian trial defense counsel went on to state:
We have significant concerns with the five and a half month de-
lay of the trial after the motion to reconsider prejudicing our
client’s speedy trial rights when the Government introduced no
new evidence on the issue of inevitable discovery in their mo-
tion to reconsider and made no new arguments or as far as the
Defense is aware cited any new case law that they did not orig-
inally cite in our motions hearing in January of 2018. So we are
at a loss to understand what could have caused the Court to
change its mind on this highly nuanced issue and we would re-
quest that written ruling as early as possible to understand
what the Court saw differently.

35
 United States v. Painter, No. ACM 39646

Despite his assertion to the contrary, the military judge did not issue a
written ruling prior to the October trial date. When the court convened on 15
October 2018, trial defense counsel addressed the delay between April and
October, raising the delay in an oral motion for the military judge to recuse
himself. Trial defense counsel stated, “We were ready to go to trial in April at
that time. We should have had a ruling and we should have pressed through
the [Article] 62(a)[, UCMJ, appeal] or back to trial at that point. So now it’s
been five and half months because of everyone’s schedule.” Trial defense
counsel argued Appellant had been prejudiced because A1C ES was now sev-
eral months pregnant, which he claimed makes it more difficult for the De-
fense “to impeach or question the credibility or chastity of a pregnant woman”
and “limits our ability to cross-examine her.”
During the trial in October, before reading his ruling into the record, the
military judge informed trial defense counsel that “when I give my ruling to-
day, defense, you may ask for reconsideration as well,” and later “I will give
you a reasonable amount of time if you want to consider any type of reconsid-
eration in this case.” After the military judge read his ruling into the record,
trial defense counsel made an oral motion requesting the military judge re-
consider his ruling denying the defense suppression motion. After hearing
argument from both sides, the military judge orally denied the motion.
During the voir dire of the military judge on the recusal motion, the De-
fense asked if the military judge could think of a reason why he did not ad-
dress inevitable discovery in his original ruling; the military judge responded
in the negative. In explaining the delay in issuing his ruling, the military
judge stated the issue of inevitable discovery was a highly nuanced issue and
he had other cases to handle. The military judge went on to state that “the
law allows me to correct a mistake that the judge may have made and that is
what I have done.”
2. Law
We review Sixth Amendment speedy trial issues de novo. United States v.
Danylo, 73 M.J. 183, 186 (C.A.A.F. 2014) (citing United States v. Cooper, 58
M.J. 54, 58 (C.A.A.F. 2003)).
An accused’s right to speedy trial is protected by statute, by regulation,
and by the Constitution. United States v. Tippit, 65 M.J. 69, 72 (C.A.A.F.
2007); see also United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995)). For
military servicemembers, the Sixth Amendment right to speedy trial is trig-
gered by the preferral of charges or the imposition of pretrial restraint. See
Danylo, 73 M.J. at 186 (citation omitted).
In determining whether an appellant has been denied his right
to a speedy trial under the Sixth Amendment, this Court con-

36
 United States v. Painter, No. ACM 39646

siders the following factors: “(1) the length of the delay; (2) the
reasons for the delay; (3) whether the appellant made a de-
mand for a speedy trial; and (4) prejudice to the appellant.”
Id. (quoting United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005)).
However, “none of the four factors . . . [are regarded] as either a necessary or
sufficient condition to the finding of a deprivation of the right of speedy trial.
Rather, they are related factors and must be considered together with such
other circumstances as may be relevant.” Barker v. Wingo, 407 U.S. 514, 533
(1972).
3. Analysis
a. Length of the Delay
The first factor in the Barker analysis is the “length of the delay” which
“is to some extent a triggering mechanism, and unless there is a period of de-
lay that appears, on its face, to be unreasonable under the circumstances,
there is no necessity for inquiry into the other factors that go into the bal-
ance.” United States v. Cossio, 64 M.J. 254, 257 (C.A.A.F. 2007) (quoting
United States v. Smith, 94 F.3d 204, 208–09 (6th Cir. 1996)) (internal quota-
tion marks omitted).
“[C]ircumstances that are appropriate to consider under the first factor
include the seriousness of the offense, the complexity of the case, and the
availability of proof,” among others. United States v. Schuber, 70 M.J. 181,
188 (C.A.A.F. 2011) (citing Barker, 407 U.S. at 530–31, 531 n.31).
Appellant avers the six-month delay was unreasonable. The Government
responds the delay of 178 days—from 23 April 2018 and 18 October 2018—is
not unreasonable.
We weigh this factor marginally in Appellant’s favor. The CAAF has ex-
plained, “an analysis of the first factor is not meant to be a Barker analysis
within a Barker analysis.” Id. Whereas reasons for the length of the delay are
analyzed under the second factor, “circumstances that are appropriate to con-
sider under the first factor include the seriousness of the offense, the com-
plexity of the case, and the availability of proof,” among others. Id. (citing
Barker, 407 U.S. at 530–31). In this case, the offenses were serious and the
case was moderately complex, particularly motion practice. The availability
of proof, including the Defense’s expert Dr. PS, is not well established in the
record. Still, we find the military judge’s delay of 178 days to be attributable
to the Government and to be facially unreasonable thus triggering the full
Barker analysis. In making our determination, we considered the requests of
both parties for a ruling, the Government’s notification to the military judge
that it was considering filing an extraordinary writ with our court to order
the military judge to rule, the promises to rule made by the military judge

37
 United States v. Painter, No. ACM 39646

which were not fulfilled, and the length of time it took for the substance of
the ruling to be known to the parties.
b. Reasons for the Delay
Under the second Barker factor, “different weights should be assigned to
different reasons” for delay. United States v. Cooley, 75 M.J. 247, 260
(C.A.A.F. 2016) (quoting Barker, 407 U.S. at 531). In Barker, the United
States Supreme Court explained:
A deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A
more neutral reason such as negligence or overcrowded courts
should be weighted less heavily but nevertheless should be con-
sidered since the ultimate responsibility for such circumstances
must rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should serve
to justify appropriate delay.
407 U.S. at 531 (footnote omitted). “In contrast, ‘delay caused by the defense
weighs against the defendant.’” Cooley, 75 M.J. at 260 (quoting Vermont v.
Brillon, 556 U.S. 81, 90 (2009)).
Appellant posits that (1) the military judge had more than enough time to
decide the inevitable discovery issue in the case and prevent the delay; (2) it
should not have taken the military judge an additional six months to rule;
and (3) the fact the military judge had other cases and overall docket conges-
tion counts against the Government, not Appellant.
The Government argues that the singular factor which drove the Gov-
ernment’s ability to proceed to trial at any point before October 2018 was tri-
al defense counsel’s availability. The Government, citing Danylo, contends
the reason for the delay stemmed from a reasonable prosecution strategy to
request a reconsideration of the military judge’s ruling. Moreover, the Gov-
ernment contends the delay was two days, and “[o]stensibly the government
could have gone back to trial immediately thereafter. The record contains no
evidence suggesting the government was responsible for the delay in re-
docketing Appellant’s case for October 2018.” Finally, the Government argues
that the military judge issued his ruling in anticipation of the new trial date,
which was defense driven.
We find this factor slightly in favor of Appellant. The Government in its
response does not address Appellant’s argument that it is the Government,
and not Appellant, that is responsible for any judicial delay. For purposes of
this appeal only, we assume without deciding that Appellant is correct. As
noted above the record is not developed explaining the reasons for the 178-
delay, nor do we agree the record indicates the Government could have pro-

38
 United States v. Painter, No. ACM 39646

ceeded to trial in April. We hold the lack of a developed record against the
Government, not Appellant. Still, there was no attempt to deliberately delay
Appellant’s trial to hamper the Defense. The delays by the military judge in
ruling are attributable to a neutral reason—his crowded docket. However, as
the United States Supreme Court noted in Barker, “[a] more neutral reason
such as . . . overcrowded courts should be weighted less heavily but neverthe-
less should be considered since the ultimate responsibility for such circum-
stances must rest with the government rather than with the defendant.” 407
U.S. at 531 (footnote omitted).
c. Demand for Speedy Trial
Appellant never filed a motion with the court demanding speedy trial or
to move the trial up once it was docketed for October 2018. However, he did
use the words “speedy trial” in both his 24 April 2018 email, albeit in a differ-
ent context, and his 2 July 2018 email objecting to the five and a half month
delay. Further, the trial counsel herself informed the military judge they
were considering seeking a writ with this court to protect Appellant’s “speedy
trial right.” As such, we weigh this factor in favor of Appellant.
d. Prejudice to Appellant
With regard to the final factor, prejudice, the Court in Barker explained:
Prejudice, of course, should be assessed in the light of the in-
terests of defendants which the speedy trial right was designed
to protect. This Court has identified three such interests: (i) to
prevent oppressive pretrial incarceration; (ii) to minimize anxi-
ety and concern of the accused; and (iii) to limit the possibility
that the defense will be impaired. Of these, the most serious is
the last, because the inability of a defendant adequately to pre-
pare his case skews the fairness of the entire system. If wit-
nesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to recall
accurately events of the distant past.
407 U.S. at 532 (footnote omitted). An accused who asserts a violation of the
Sixth Amendment right to speedy trial bears the burden of persuasion to
demonstrate the existence of prejudice. See R.C.M. 905(c)(2)(A); Danylo, 73
M.J. at 189.
Applying the interests noted above, Appellant was not in pretrial con-
finement and although Appellant avers he experienced anxiety, we agree
with the Government that we have no evidence concerning any anxiety on
behalf of Appellant due to the 178-day delay. We do not doubt Appellant ex-
perienced some anxiety, but we have no basis to conclude it was greater than
that ordinarily associated with a trial delay. Cf. United States v. Wilson, 72

39
 United States v. Painter, No. ACM 39646

M.J. 347, 354 (C.A.A.F. 2013) (citations omitted) (“[W]e are concerned not
with the normal anxiety and concern experienced by an individual in pretrial
confinement, but rather with some degree of particularized anxiety and con-
cern greater than the normal anxiety and concern associated with pretrial
confinement.”).
As to the final interest, limiting the possibility that the defense will be
impaired, Appellant first posits his case was impacted because of his inability
to seek reconsideration of the military judge’s ruling. We agree with the Gov-
ernment that Appellant’s argument is unpersuasive. The military judge in-
formed counsel twice of the option to seek reconsideration of his motion,
which they did during the October 2018 trial. Trial defense counsel did not
request additional time or request that the court consider additional written
filings. We see no impact to Appellant or his trial defense team when they
first heard the military judge’s ruling on inevitable discovery at trial. Trial
defense counsel routinely hear adverse oral rulings and make oral requests
for reconsideration just as occurred here.
Appellant next argues that he was prejudiced because A1C ES testified
while “pregnant and in tears” at trial. There is no evidence from Appellant
what, if any, cross-examination he was unable to conduct due to A1C ES’s
pregnancy. Our review of the record demonstrates a very extensive cross-
examination of A1C ES. Appellant questioned her credibility, her motives to
fabricate, the matters admitted by the military judge’s Mil. R. Evid. 412 rul-
ing, and questions concerning whether A1C ES was experiencing a blackout
vice being asleep. Appellant does not aver, nor do we find, that any defense
witnesses were unavailable or that any defense witness was unable to recall
events accurately.
Weighing the factors together, we consider the absence of prejudice to
outweigh the remaining factors that, taken together, only moderately favor
Appellant. Accordingly, we find Appellant’s Sixth Amendment right to a
speedy trial was not violated.
E. Recusal of Military Judge
Appellant avers the military judge abused his discretion when he failed to
recuse himself. We disagree.
1. Additional Background
When the court-martial reconvened in October 2018, during an oral mo-
tion to the military judge to reconsider his ruling on the motion to suppress,
trial defense counsel renewed his argument that the evidence from the
smartphone should be excluded under the “fruit of the poisonous tree doc-
trine.” The military judge disagreed stating he did not see the taint based on

40
 United States v. Painter, No. ACM 39646

the way the phone was examined and did not “see any fruit of the poisonous
tree.”
During the same court-martial hearing in October 2018, trial defense
counsel indicated he would like an opportunity to voir dire the military judge.
The military judge asked “Are you challenging me, is that right, Sir?” At
which point trial defense counsel indicated, “Well, Sir, at this time I would
just like to voir dire you.”
Trial defense counsel questioned the military judge on his knowledge of
this court’s decision in United States v. Vargas, No. ACM 38991, 2018 CCA
LEXIS 137 (A.F. Ct. Crim. App. 15 Mar. 2018) (unpub. op.), and the military
judge indicated his only knowledge was from reading the case. Trial defense
counsel also questioned whether anyone in the “JAG Corps leadership” had
ever communicated displeasure at how “Article 120 courts-martial were being
handled,” and the military judge replied in the negative. At that point the
trial defense counsel asked several questions concerning the military judge’s
granting the Government’s motion to reconsider the suppression of the evi-
dence from Appellant’s smartphone including: (1) why the military judge
changed his mind when no new facts or caselaw were presented in the Gov-
ernment’s motion to reconsider on the issue of inevitable discovery; (2) what
took the military judge so long to make a decision; and (3) whether the mili-
tary judge discussed the ruling with his fellow military judges.
As to the first question—why he changed his mind—the military judge re-
sponded he could not think of a reason he did not address inevitable discov-
ery in his initial ruling. As to the second question—the timing of his ruling—
the military judge responded, “[O]ther than my scheduling of other cases that
I had to do, that would be the only reason why I couldn’t get my ruling done
in a timely fashion. So when I give my ruling today, defense, you may ask for
reconsideration as well.” As to Appellant’s third question—conversations mil-
itary judge had with colleagues—the military judge made it clear that alt-
hough he may have conversations with his fellow judges on issues in his cas-
es, “[A]ll the things I do in my cases are based on my decision.” He also later
clarified that no one told him how to rule on this motion, and that he may
“discuss cases with colleagues, and we are not going to get into that, because
frankly, that’s none of your business . . . but in regard to this case, no one told
me to change my mind.” Finally, he also clarified that his conversations with
colleagues about issues and cases was “none of [his] concern, nor is [it] rele-
vant here.” He further clarified,
In regards to this case, the rulings I come up with are based on
the law and the evidence that has been presented and my own
review and application of that. No one has told me to rule one

41
 United States v. Painter, No. ACM 39646

way or the other. No one has told me to deny a motion, or grant
a motion, or any of that. They have not done any of that.
Trial defense counsel also addressed the lack of a written ruling to the
“[Mil R. Evid.] 412 motion” at which point the military judge stated, “That is
a fairly straightforward [Mil. R. Evid.] 412 motion.[ 27] Would you agree [trial
defense counsel]?” After trial defense counsel agreed it was much less compli-
cated, the military judge replied, “Is this your first—this isn’t your first Arti-
cle 120[, UCMJ,] case, right, [trial defense counsel]?” After the trial defense
counsel replied it was not his first Article 120, UCMJ, case, the military
judge responded, “So you have a lot of experience and you all briefed that is-
sue very well. You laid out all of the facts for me.”
After trial defense counsel finished his questioning of the military judge,
he requested, and was granted, time to determine whether Appellant wanted
to challenge the military judge. After the recess, trial defense counsel indi-
cated he was challenging the military judge. Trial defense counsel indicated
they were not challenging the military judge merely for his reconsideration of
his prior ruling, but because, “[W]e have lost faith in the impartiality of this
tribunal and the impartiality of this process and your ability to, essentially,
maintain fair interest of justice in this case.” Trial defense counsel then ar-
gued as a basis for recusal the delay in the military judge issuing his ruling
thereby prejudicing Appellant in several ways. Specifically, the delay impact-
ed Appellant’s right to a speedy trial, impaired his strategy in regards to
cross-examining A1C ES who was now pregnant, and impaired his ability to
prepare his Mil. R. Evid. 412 motion as well as a motion for reconsideration
on the suppression of the contents of Appellant’s smartphone.
The military judge responded regarding his reconsideration of the sup-
pression motion that the law allows him “to correct a mistake that the judge
may have made and that is what I have done,” to which the trial defense
counsel stated, “Yes, Sir. And that is your right.” Trial defense counsel then
clarified that his concern was that they did not understand the reason why
the military judge changed his mind with respect to the motion for reconsid-
eration. Trial defense counsel then argued that when considering all the ways
in which Appellant was prejudiced due to the military judge’s delay, it raised
a question as to the impartiality and fairness of the trial under R.C.M. 902.
At that point the military judge indicated he was going to provide his rulings

27Appellant does not allege error with regard to the Mil. R. Evid. 412 motion on ap-
peal.

42
 United States v. Painter, No. ACM 39646

on the record and then, if needed, attach the written rulings prior to authen-
tication, all in compliance with the rules.
Prior to denying the Defense’s motion, the military judge noted several
recusal cases and the applicable standard under R.C.M. 902. The military
judge then stated:
All right. Defense, I’m going to deny your request. I’m not going
to recuse myself from this case. I have looked at the case Var-
gas and it is factually not related at all to this case. I have
looked at the [R.C.M.] 902, the disqualifications of the military
judge, neither are any of these categories present. And I have
answered your questions, defense counsel.
I’m not going to discuss conversations I had with my colleagues
about issues involving law or anything else, but in regard to
this case, no one has told me how to rule on any issue in this
case. No one has said I should rule one way or the other. All the
decisions I have made have been based on the evidence and the
facts and my application of the evidence to the facts, as well as
my conscience, and as well as my responsibility of being a judge
and having to make decisions that affect the parties.
And, defense, I understand you’re upset about the length of
time this case has taken. There was a delay when [Judge] Eller
was the judge in this case. There have been several delays.
We’ve had several amended scheduling orders, two of them.
The court wasn’t able to produce a written ruling, however, I
am going to give my ruling. I am going to read it on the record
and, defense, I will give you a reasonable amount of time if you
want to consider any type of reconsideration in this case, but I
would also remind the counsel that we have had discussions
and I have told you [if] there are issues of precedent—or, ex-
cuse me—issues of importance, and I am not responding or re-
plying to your emails, that you are to text or call me, pick up
the phone, and we will have a [R.C.M.] 802 conference. That is
not to disparage either side. I am not doing that. I am merely
stating for the record that is my practice in all of my courts
that when sometimes I am on the road, sometimes I am doing
back-to-back cases and my email, frankly, doesn’t work.
I understand your concerns, defense. I don’t think they are
warranted. I think if you look at the rulings, I have ruled for
the defense and I have also ruled for the government. And no
one has told me what to do on this case. So I don’t think Vargas

43
 United States v. Painter, No. ACM 39646

applies. I think the standard would apply. I think that particu-
lar fact pattern in Vargas is completely different from this case
and when I look at rule for court-martial 902 I don’t see a rea-
son why I should disqualify myself. I don’t think the public will
lose faith in this process. I don’t think there has been any evi-
dence that I have somehow done anything inappropriate in this
case. Nor have I—nor do I believe counsel, including the SVC—
I don’t believe anybody has acted inappropriate in this case.
All right. So I am not going to recuse myself.
Appellant argues the military judge abused his discretion by failing to
recuse himself because (1) it is unreasonable to conclude that the military
judge simply made an error in his initial written ruling by failing to consider
inevitable discovery; (2) the military judge was not “forthcoming in cataloging
the basis for his reversal;” (3) the military judge assumed a “defensive pos-
ture;” and (4) a reasonable observer would believe Appellant did not get a fair
trial because the military judge was overwhelmed by his caseload.
2. Law
We review a military judge’s ruling on a motion that he recuse himself for
an abuse of discretion. United States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F.
2015) (citations omitted). “A military judge’s ruling constitutes an abuse of
discretion if it is ‘arbitrary, fanciful, clearly unreasonable or clearly errone-
ous,’ not if this Court merely would reach a different conclusion.” Id. (quoting
United States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)).
“An accused has a constitutional right to an impartial judge.” United
States v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999) (citations omitted). R.C.M.
902 governs disqualification of the military judge. R.C.M. 902(b) sets forth
five specific circumstances in which a “military judge shall disqualify himself
or herself.” In addition, R.C.M. 902(a) requires disqualification “in any pro-
ceeding in which th[e] military judge’s impartiality might reasonably be
questioned.” Disqualification pursuant to R.C.M. 902(a) is determined by ap-
plying an objective standard of “whether a reasonable person knowing all the
circumstances would conclude that the military judge’s impartiality might
reasonably be questioned.” Sullivan, 74 M.J. at 453 (citing Hasan v. Gross, 71
M.J. 416, 418 (C.A.A.F. 2012) (per curiam)).
“There is a strong presumption that a judge is impartial, and a party
seeking to demonstrate bias must overcome a high hurdle, particularly when
the alleged bias involves actions taken in conjunction with judicial proceed-
ings.” United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001) (citation
omitted). “[R]emarks, comments, or rulings of a judge do not constitute bias
or partiality, ‘unless they display a deep-seated favoritism or antagonism

44
 United States v. Painter, No. ACM 39646

that would make fair judgment impossible.’” Id. at 44 (quoting Liteky v. Unit-
ed States, 510 U.S. 540, 555 (1994)).
Recusal based on an appearance of bias is intended “to promote public
confidence in the integrity of the judicial process.” Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 858 n.7 (1988) (citations omitted). However,
this “appearance standard does not require judges to live in an environment
sealed off from the outside world.” United States v. Butcher, 56 M.J. 87, 91
(C.A.A.F. 2001).
“Although a military judge is to ‘broadly construe’ the grounds for chal-
lenge, he should not leave the case ‘unnecessarily.’” Sullivan, 74 M.J. at 454
(quoting R.C.M. 902(d)(1), Discussion). “Of course, [a] . . . judge has as much
obligation not to . . . [disqualify] himself when there is no reason to do so as
he does to . . . [disqualify] himself when the converse is true.” United States v.
Kincheloe, 14 M.J. 40, 50 n.14 (C.M.A. 1982) (alterations in original) (internal
quotation marks and citations omitted).
“Nevertheless, despite an objective standard, the judge’s statements con-
cerning his intentions and the matters upon which he will rely are not irrele-
vant to the inquiry.” Wright, 52 M.J. at 141 (citations omitted). In certain cir-
cumstances, the cumulative nature of facts may create a reason for question-
ing a military judge’s impartiality, even though none of the facts, in isolation,
necessitates recusal. See Sullivan, 74 M.J. at 455 (quoting United States v.
DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)).
“[J]udicial remarks during the course of a trial that are critical or disap-
proving of, or even hostile to, counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge.” Liteky, 510 U.S. at 555; see also
United States v. Cooper, 51 M.J. 247, 251 (C.A.A.F. 1999) (holding a military
judge’s personal expression of irritation with a defense counsel did not divest
him of the necessary appearance of impartiality); United States v. Gray, 51
M.J. 1, 51–52 (C.A.A.F. 1999) (finding military judge’s criticism of defense
counsel’s failure to interview possible defense witnesses and statement that
defense counsel was unable to ask intelligible voir dire questions was not bi-
ased or inappropriate); United States v. Loving, 41 M.J. 213, 257 (C.A.A.F.
1994) (“Generally, courtroom clashes between counsel and the judge do not
constitute disqualifying bias.”). “Questioning of defense counsel by a trial
judge is not uncommon, not inappropriate, and not evidence of bias.” United
States v. Khan, No. ACM 38962, 2017 CCA LEXIS 488 at *24 (A.F. Ct. Crim.
App. 20 Jul. 2017) (unpub. op.).
R.C.M. 905(f) provides that “on request of any party or sua sponte, the
military judge may, prior to authentication of the record of trial, reconsider

45
 United States v. Painter, No. ACM 39646

any ruling, other than one amounting to a finding of not guilty made by the
military judge.”
3. Analysis
We conclude the military judge applied the correct legal standards and
did not abuse his discretion when he declined to recuse himself from the case.
His conclusions regarding the applicability of R.C.M. 902 and caselaw were
not “arbitrary, fanciful, clearly unreasonable or clearly erroneous,” either at
the time or in hindsight. See Sullivan, 74 M.J. at 453 (quoting United States
v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)) (internal quotation marks omit-
ted). We reach this conclusion for the following reasons.
As an initial matter, we recognize the strong presumption that a military
judge is impartial, particularly when the alleged bias involves actions taken
in conjunction with judicial proceedings. Quintanilla, 56 M.J. at 44 (citation
omitted).
Second, the military judge complied with R.C.M. 905 regarding his ruling
on the motion to suppress. The military judge gave his ruling on the record
before pleas were entered. See R.C.M. 905(d). His reconsideration of his rul-
ing for the motion to suppress complied with R.C.M. 905(f).
Third, we note the military judge’s statements on the record that “no one
told me . . . what to do on this case;” “no one has said I should rule one way or
the other;” and “[a]ll of the decisions I have made have been based on the evi-
dence and the facts and my application of the evidence to the facts, as well as
my conscience.” See Wright, 52 M.J. at 141.
Appellant argues that unlike the military judge in Sullivan, the military
judge did not catalogue the basis for his reversal. Appellant’s reliance on this
point in Sullivan is misplaced. The military judge in Sullivan catalogued his
relationship with participants in a trial—he was not asked to reveal his de-
liberative process to include conversations with fellow military judges. 28 See
74 M.J. at 451–53. Appellant fails to cite to any authority requiring the mili-
tary judge to “catalogue his basis for reversal” or reveal conversations with
his fellow military judges.

28 We note, “[J]udges, like Presidents, depend upon open and candid discourse with
their colleagues and staff to promote the effective discharge of their duties. . . . Confi-
dentiality helps protect judges’ independent reasoning from improper outside influ-
ences. It also safeguards legitimate privacy interests of both judges and litigants.”
United States Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328,
337 (C.M.A. 1988) (quoting In re Certain Complaints Under Investigation, 783 F.2d
1488, 1519–20 (11th Cir. 1986)).

46
 United States v. Painter, No. ACM 39646

Fourth, we find it important that the military judge candidly admitted
that he made a mistake in failing to initially address inevitable discovery in
ruling on the motion to dismiss. Appellant argues on appeal that “[i]t is un-
reasonable to assume the military judge simply made an error in his initial
ruling and/or forgot to consider whether there was an exception to the exclu-
sionary rule.” We disagree. We have no reason to question the military
judge’s statement that he made an error and R.C.M. 905 allowed him to cor-
rect that error.
Fifth, our reading of the entire record does not disclose a defensiveness on
the part of the military judge. Even if we assume defensiveness as Appellant
argues, the Supreme Court has made clear that “expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of
what imperfect men and women, . . . sometimes display” do not establish bias
or partiality. Liteky, 510 U.S. at 555–56. The Supreme Court stated further,
“[J]udicial remarks during the course of a trial that are critical or disapprov-
ing of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.” Id. at 555. Appellant has not persuad-
ed us that the military judge’s remarks support a conclusion of bias or par-
tiality.
Sixth, we find all of the military judge’s comments “remained well ‘within
[judicial] bounds’ and his ‘remarks, comments, [and] rulings’ did not ‘display
a deep-seated favoritism or antagonism that would make fair judgment im-
possible.’” See Khan, unpub. op. at *26 (alterations in original) (quoting Quin-
tilla, 56 M.J. at 44).
Appellant contends that the military judge summarily dismissed the De-
fense’s request that he reconsider his ruling on the motion to suppress and
failed to put any findings of fact or conclusion of law on the record contrary to
United States v. Flesher, 73 M.J. 303, 311–12 (C.A.A.F. 2014). Appellant pos-
its the military judge disregarded trial defense counsel’s request that the mil-
itary judge reconsider his ruling based on the “fruit of the poisonous tree doc-
trine.” However, the military judge ruled on the record and denied the de-
fense motion for reconsideration after hearing argument on whether the fruit
of the poisonous tree doctrine required a different result which Appellant had
argued previously. To rebut trial defense counsel’s argument that DC3’s
analysis was subject to “taint,” trial counsel highlighted to the military judge
that:
[Mr. TH] was able to testify specifically that he reviewed each
of the images on the phone and all of the -- without any re-
quirement, any information whatsoever from the accused. In
fact, it wasn’t hard for him to gain access or find any specific
file on that phone. He was able to access everything inde-

47
 United States v. Painter, No. ACM 39646

pendently of anything that he received from any previous eval-
uation. And in fact, I believe his testimony was that he didn’t
rely on any of that when conducting his analysis.
The military judge stated that “based on how the phone was examined” he
did not see “any fruit of the poisonous tree” or “taint” as argued by defense
counsel. The military judge noted that he had discussed Mr. TH’s review of
the smartphone in his ruling, and that he concurred with the position that
the Government “just made.” In addition, the fruit of the poisonous tree ar-
gument was previously presented to the military judge both in the Defense’s
written response to the Government’s motion for reconsideration and their
argument. Moreover, the Defense’s motion was to reconsider a ruling for
which the military judge had already made findings of fact and conclusions of
law on the record and no new evidence was presented, only argument. The
fact that the Defense wanted the military judge to specifically address the
fruit of the poisonous tree doctrine did not invalidate the military judge’s pri-
or findings of fact and conclusions of law. Finally, the military judge did not
evade or ignore the Defense’s motion for reconsideration; he heard argument
and affirmatively ruled on the record; and he provided a “clear signal” that he
applied the right law. 29 See id. 30
Seventh, no reasonable person knowing all the circumstances would con-
clude that the military judge’s impartiality might reasonably be questioned.
See Sullivan, 74 M.J. at 453 (citing Hasan, 71 M.J. at 418). Appellant argues
that a reasonable observer would believe Appellant did not get a fair trial be-
cause the military judge was overwhelmed by his caseload. However, our ob-
servations of the record of trial indicate otherwise.
Eighth, we find Appellant’s case substantially unlike those in which the
CAAF has found, or assumed without deciding, that the presiding judge was
disqualified. See, e.g., United States v. Martinez, 70 M.J. 154, 158–59
(C.A.A.F. 2011) (presiding judge’s judicial supervisor privately conferred with
trial counsel before accompanying judge into chambers); United States v.

29 We note that in his written ruling the military judge addressed the Defense’s fruit
of the poisonous tree argument in a footnote. However, as noted previously, we did
not consider the military judge’s written ruling in our analysis because it is dated
after the record was authenticated.
30 The CAAF in Flesher noted that “[w]hile not required, where the military judge
places on the record his analysis and application of the law to the facts, deference is
clearly warranted.” 73 M.J. at 312. The CAAF also noted that “the reverse is also
true, if the military judge fails to place his findings and analysis on the record, less
deference is accorded.” Id.

48
 United States v. Painter, No. ACM 39646

McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (holding that the military judge
declined to recuse herself after she “announced that her participation ‘would
suggest to an impartial person looking in that I can’t be impartial in this
case’”); Butcher, 56 M.J. at 88–90, 92 (off-duty social contact between military
judge and trial counsel during trial).
Ninth, the cumulative nature of the facts do not create a reason in the
mind of a reasonable person with full knowledge of the facts for questioning
the military judge’s impartiality. See Sullivan, 74 M.J. at 455 (quoting De-
Temple, 162 F.3d at 287).
We find Appellant’s complaints, which all relate to the military judge’s
conduct within the judicial context, fail to rebut the strong presumption of
the military judge’s impartiality.
F. Post-Trial Delay
Appellant’s court-martial concluded on 19 October 2018. The convening
authority, took action 124 days later on 20 February 2019.
In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), our superior
court established a presumption of facially unreasonable post-trial delay
when the convening authority does not take action within 120 days of trial.
Since the convening authority took action 124 days after the trial in this
case, there is a facially unreasonable delay. As a result, we examine the four
factors set forth in Barker: “(1) the length of the delay; (2) the reasons for the
delay; (3) the appellant’s assertion of his right to a timely review; and (4)
prejudice” to the appellant. Moreno, 63 M.J. at 135 (citing United States v.
Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100,
102 (C.A.A.F. 2004) (per curiam)). “No single factor is required for finding a
due process violation and the absence of a given factor will not prevent such a
finding.” Id. at 136 (citing Barker, 407 U.S. at 533). However, where an ap-
pellant has not shown prejudice from the delay, there is no due process viola-
tion unless the delay is so egregious as to “adversely affect the public’s per-
ception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
1. Length of the Delay
As to the first factor—the length of the delay—the 124 days that elapsed
from the conclusion of Appellant’s trial until the convening authority took ac-
tion exceeded the Moreno standard by four days. The Government concedes
this four-day delay is presumptively unreasonable, and we agree. This factor
weighs in Appellant’s favor.
2. Reasons for the Delay

49
 United States v. Painter, No. ACM 39646

As to the second factor—the reasons for the delay—the Government ar-
gues the delay is adequately explained in the record. First, the Government
argues trial defense counsel took three days longer than trial counsel to re-
turn his transcript edits to the court reporter. Further, the 876-page tran-
script was divided among three court reporters. Finally, Appellant’s court
ended in the fall necessitating transcription over a busy holiday season and a
National Day of Mourning for President George H.W. Bush. Appellant argues
that there was a significant delay in transcribing the record because the court
reporters elected to wait until the conclusion of the trial to begin transcrib-
ing, even though the first 126 pages cover the first motions hearing held on
17 January 2018, and the second and third motions hearings cover 100 pages
of transcript from 23 and 26 April 2018. Appellant contends transcription did
not begin until 30 October 2018 and ended on 30 January 2019. 31
We did however note the trial defense counsel raised several legal errors
in his request for clemency and the addendum to the staff judge advocate’s
recommendation addressing the legal errors was dated three days later.
As the record of trial provided no rationale for why the court reporters
elected to wait to transcribe the sessions of the court held in January and
April of 2018, we find this factor marginally in favor of Appellant.
3. Request for Speedy Post-Trial Processing
As to the third factor—Appellant’s assertion of his right to timely re-
view—Appellant made no demand for speedy post-trial processing, but in-
stead asserts that his previous demands for a speedy trial should have indi-
cated the importance of expeditiously processing his entire case. We are not
persuaded that Appellant exhibited any concern about the speed at which the
post-trial processing of his case was occurring. We find that this factor weighs
in the Government’s favor.
4. Prejudice
Turning to the fourth factor—prejudice—the CAAF in Moreno noted prej-
udice should be assessed in light of three similar interests for prompt ap-
peals: (1) oppressive incarceration; (2) anxiety and concern; and (3) impair-
ment of the appellant’s ability to present a defense at a rehearing. 63 M.J. at
138–39. Where, as here, an appellant does not prevail on the substantive

31One court reporter began transcription on 29 October 2018, the second began on 30
October 2018. However, the third court reporter, TSgt EC, in her chronology indicat-
ed she began transcribing on 19 October 2018. Even if Appellant is correct that tran-
scription began on 30 October 2018, it would not change our analysis.

50
 United States v. Painter, No. ACM 39646

grounds of his appeal, there is no oppressive incarceration. Id. at 139. Simi-
larly, where an appellant’s substantive appeal fails, his ability to present a
defense at a rehearing is not impaired. Id. at 140.
Appellant made no claim of prejudice due to the delay. Appellant did state
“given the strength of his appellate issues including the unreasonable delay
in violation of his Sixth Amendment right to speedy trial, it is evident that he
would want these issues resolved as soon as possible.” However, we agree
with the Government that this statement is a conclusory opinion, not a claim
of prejudice suffered.
We find Appellant had no “particularized anxiety or concern that is dis-
tinguishable from the normal anxiety experienced” by appellants awaiting an
appellate decision. See id. Consequently, we conclude that Appellant has not
demonstrated he suffered any prejudice as a result of the post-trial delay, and
this factor does not weigh in his favor.
5. Balancing of the Barker Factors
Considering all of the factors together in our review of this case, we do not
find a violation of Appellant’s due process right to timely post-trial pro-
cessing.
6. Tardif analysis
Although we find no due process violation in Appellant’s case, we none-
theless consider whether Article 66(c), UCMJ, relief pursuant to United
States v. Tardif is appropriate. 57 M.J. 219, 224 (C.A.A.F. 2002). We are
guided by factors enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F.
Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), with no single factor
being dispositive. 32
Applying these factors and considering the circumstances of Appellant’s
case, we conclude that no relief is warranted.

32 These factors include: (1) how long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is nonetheless evidence of harm (either to the
appellant or institutionally) caused by the delay; (4) whether the delay has lessened
the disciplinary effect of any particular aspect of the sentence, and whether relief is
consistent with the dual goals of justice and good order and discipline; (5) whether
there is any evidence of institutional neglect concerning timely post-trial processing,
either across the service or at a particular installation; and (6) whether, given the
passage of time, whether this court can provide meaningful relief in this particular
situation. United States v. Gay, 74 M.J. 736, 744, aff’d, 75 M.J. 264 (C.A.A.F. 2016).

51
 United States v. Painter, No. ACM 39646

On the whole, while the processing of Appellant’s case was perhaps not as
expeditious as it could have been, we perceive no substantial harm to Appel-
lant, prejudice to the interests of justice or discipline, or erosion of this court’s
ability to conduct our review or grant appropriate relief based on post-trial
delay that would move us to reduce an otherwise appropriate sentence im-
posed by the military judge and approved by the convening authority.
G. Appellate Delay
Appellant’s case was originally docketed with this court on 7 March 2019.
Although not asserted by Appellant, the delay in rendering this decision after
7 September 2020 is presumptively unreasonable. However, we determine
there has been no violation of Appellant’s right to due process and a speedy
post-trial review and appeal.
Appellant submitted his initial assignments of error on 3 October 2019,
after four Appellant-requested enlargements of time. The record of trial is
sizeable, including over 876 pages of transcript and 75 exhibits. Oral argu-
ment was held on 5 February 2020. The Government filed a memorandum of
argument on 11 February 2020. Appellant filed a 27 February 2020 reply to
the Government’s memorandum of argument. In Appellant’s reply, he includ-
ed a footnote requesting speedy appellate processing.
We apply the same legal principles to appellate delay as in post-trial de-
lay. In this case, we find no oppressive incarceration nor impairment of the
Defense at a rehearing because Appellant has not prevailed in his appeal. See
id. at 140. As for anxiety and concern, the CAAF has explained “the appro-
priate test for the military justice system is to require an appellant to show
particularized anxiety or concern that is distinguishable from the normal
anxiety experienced by prisoners awaiting an appellate decision.” Id. Appel-
lant has articulated no such particularized anxiety in this case, and we dis-
cern none. Further, Appellant has not asserted that he is entitled to relief for
appellate delay. Accordingly, we do not find the delay so egregious as to ad-
versely affect the perceived fairness and integrity of the military justice sys-
tem. Id.
Recognizing our authority under Article 66(c), UCMJ, we have also con-
sidered whether relief for excessive post-trial delay is appropriate even in the
absence of a due process violation. See Tardif, 57 M.J. at 225. After consider-
ing the factors enumerated in Gay, 74 M.J. at 744, we conclude it is not.

III. CONCLUSION
The approved findings and sentence are correct in law and fact and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Ar-

52
 United States v. Painter, No. ACM 39646

ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

53