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

                                 No. ACM 38765
                           ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                         Robert A. CONDON
           Technical Sergeant (E-6), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 10 March 2017
                           ________________________

Military Judge: Wendy L. Sherman (arraignment) and Vance H.
Spath.
Approved sentence: Dishonorable discharge, confinement for 30 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 25 September 2014 by GCM convened at Hurlburt Field,
Florida.
For Appellant: Major Johnathan D. Legg, USAF; Philip D. Cave, Es-
quire.
For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Es-
quire.
Before DUBRISKE, MAYBERRY, and J. BROWN, Appellate Military
Judges. 1
Senior Judge DUBRISKE delivered the opinion of the Court, in which
Senior Judge MAYBERRY joined. Senior Judge J. BROWN filed a sep-
arate opinion concurring in part and dissenting in part.


1 This special panel was appointed by former Chief Judge Allred prior to his retire-
ment. Upon his arrival, Chief Judge Drew recused himself from this case and was not
involved in any capacity.
                    United States v. Condon, No. ACM 38765


                            ________________________

    This is an unpublished opinion and, as such, does not serve as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

DUBRISKE, Senior Judge:
    Appellant was tried at a general court-martial composed of officer and en-
listed members. Contrary to his pleas, he was found guilty of dereliction of
duty, rape by fear of grievous bodily harm, sexual assault of a second victim
based upon her inability to consent due to alcohol consumption, stalking, for-
cible sodomy, assault consummated by a battery, false imprisonment, and
obstruction of justice, in violation of Articles 92, 120, 120a, 125, 128, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 920a, 925,
928, 934. 2 The members sentenced Appellant to a dishonorable discharge, 30
years of confinement, forfeiture of all pay and allowances, and reduction to E-
1. The convening authority approved the sentence as adjudged.
    Appellant raises 21 assignments of error for our review in his multiple
pleadings to this court. After reviewing the record of trial and the initial
briefs from the parties, the court specified an additional issue related to the
prosecution’s sentencing argument:
       Did the military judge err to the prejudice of Appellant when
       instructing the members that Appellant’s status as an Air
       Force Office of Special Investigations (AFOSI) agent was an
       aggravating factor for sentencing, without further clarifying
       that the status must be connected to each particular offense or
       constitute an abuse of his position, and, if so, was the prejudi-
       cial impact of this instruction further exacerbated by trial
       counsel’s argument that the members should hold Appellant to
       a higher standard because he was an agent?
   After considering all 15 issues personally raised by Appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we find 12 of those is-
sues require no additional analysis or warrant relief. 3 See United States v.
Matias, 25 M.J. 356, 361 (C.M.A. 1987).



2Appellant was found not guilty of additional specifications of sexual assault alleged
against a third victim.
3 The additional issues raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and not discussed further in this opinion are:
(Footnote continues on next page)


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                    United States v. Condon, No. ACM 38765


   The remaining issues raised by Appellant, either personally or through
counsel, and addressed in this opinion, are:
   1. Whether the evidence is factually insufficient;
    2. Whether Article 120(b)(3)(A), as applied in Specification 4 of Charge I,
is unconstitutionally vague;
   3. Whether the military judge abused his discretion in failing to grant
the Defense challenge to Major (Maj) AF for implied bias;
    4. Whether the military judge erred, or, alternatively, counsel were inef-
fective, for failing to question a victim about a prior inconsistent statement
regarding her desire to have sex with Appellant; 4
    5. Whether the military judge’s findings instructions on consent and in-
toxication were improper and prejudiced Appellant;


         1. Whether the military judge erred in allowing testimony about Appellant’s
         involvement with “Iron Order”;
         2. Whether the military judge erred in failing to conduct an in-camera review
         and disclose sexual assault response coordinator interview notes;
         3. Whether the military judge erred in failing to disclose mental health rec-
         ords of JD;
         4. Whether the military judge erred in failing to dismiss the charges, or to
         provide additional peremptory challenges for the defense, stemming from the
         Defense’s allegation of unlawful command influence;
         5. Whether Appellant was denied a speedy trial in violation of the Fifth
         Amendment and Article 10, UCMJ;
         6. Whether the record is not substantially verbatim in that the audio of Ap-
         pellant’s statements to OSI were not properly transcribed;
         7. Whether there was an irreconcilable conflict of interest between the De-
         fense-retained expert and the later retained Government expert; the Defense
         did not object, but there is no knowing voluntary waiver of the conflict and it
         gives the appearance of an unfair trial;
         8. Whether it was error to admit testimony about texts on cell phones, where
         the complaining witness had possibly deleted those texts, the Government
         failed to retrieve them, and where his own cell phone chip was permanently
         destroyed; thus the spoliation of evidence deprived Appellant of a fair trial;
         9. Whether the military judge erred in allowing testimony under Mil. R. Evid.
         413;
         10. Whether the military judge erred in denying the Defense request to pre-
         sent evidence under Mil. R. Evid. 412 and in failing to compel expert assis-
         tance in “alternative sexual lifestyles, specifically BDSM”;
         11. Whether the military judge erred in instructing the members that if they
         were firmly convinced that the accused was guilty of any offense charged
         then they must, rather than should, find him guilty; and
         12. Whether the military judge erred in allowing testimony from Colonel WW
         during sentencing.
4 Issue raised pursuant to Grostefon, 12 M.J. 431.




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                      United States v. Condon, No. ACM 38765


   6. Whether the Government’s findings and sentencing argument were
improper; 5
   7. Whether trial defense counsel failed to provide effective assistance of
counsel during sentencing when they failed to respond to the testimony of the
Government expert in sentencing and failed to obtain a psychosexual exami-
nation of Appellant;
   8. Whether the military judge erred in allowing the complaining wit-
nesses to provide unsworn statements during sentencing; 6
      9. Whether the sentence was inappropriately severe. 7
    We have considered these assignments of error and the specified issue.
We find no error warranting relief occurred during the findings portion of the
trial. As to sentencing, we find the prosecution’s argument that Appellant
should be held to a “higher standard” because of his status as an AFOSI
agent was improper. However, as we find this error did not prejudice Appel-
lant, we now affirm.

                                    I. BACKGROUND
   Appellant was a special agent (SA) with AFOSI. His offenses challenged
on appeal primarily involved two female military members with whom Appel-
lant had dating relationships between December 2012 and September 2013.
    Appellant’s misconduct first came to light in early September 2013 when
his girlfriend at the time, Airman First Class (A1C) ML, alleged that Appel-
lant sexually assaulted her after she refused to engage in sexual activity with
him. A1C ML testified that Appellant choked and slapped her repeatedly,
and then ordered her to engage in intercourse and oral sex.
    A1C ML first met Appellant when she responded to Appellant’s personal,
on-line advertisement seeking a partner for a long-term dominant/submissive
relationship. A1C ML responded that she had previously experimented with
bondage, discipline, sadism, and masochism (BDSM), and was interested in
getting to know him. After exchanging text messages for approximately a
month, they met in person in August of 2013. They engaged in a consensual
sexual relationship for approximately a month. During the course of this re-


5Appellant’s concerns about the Government’s sentencing argument are addressed in
conjunction with the specified question from the court.
6   Issue raised pursuant to Grostefon, 12 M.J. 431.
7   Issue raised pursuant to Grostefon, 12 M.J. 431.




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                  United States v. Condon, No. ACM 38765


lationship, Appellant instructed A1C ML in how to conduct herself as the
submissive partner.
    Though aspects of their sexual relationship had included playful spank-
ing, the use of a paddle, and other dominant or submissive themes, A1C ML
testified that the forced sexual conduct in September 2013 was unlike any of
the consensual submissive sexual activity she had previously engaged in with
Appellant. After this non-consensual incident, A1C ML drove to a local hospi-
tal, but left when she learned she would be required to file a police report.
She then went to the Eglin Air Force Base medical facility and reported the
incident. She initially requested a restricted report, where investigators are
not notified of the allegation, but later requested to make her report unre-
stricted.
    As AFOSI investigated A1C ML’s allegations, they discovered allegations
of other sexual misconduct by Appellant against a second female—an AFOSI
agent, SA AD. Appellant and SA AD met in December 2012. SA AD was a
new agent at the AFOSI detachment at Hurlburt Field, Florida, and Appel-
lant became her supervising agent. From their on-duty, professional relation-
ship, they began an “on again, off again” romantic relationship. Shortly
thereafter, SA AD was reassigned to a different AFOSI detachment at a
nearby installation in Florida, but their relationship continued after SA AD’s
departure.
    The relationship was at times volatile. SA AD testified that Appellant was
very controlling and possessive of her. Appellant would repeatedly call her,
yell at her, and follow her when she was off-duty. In April 2013, SA AD de-
cided to end the relationship with Appellant. This culminated with Appellant
going to SA AD’s AFOSI detachment one evening while she was alone finish-
ing up her work. Appellant followed SA AD from room to room until he cor-
nered her and kept her there against her will. Despite the volatile relation-
ship and break-up, SA AD remained friends with Appellant. He later de-
ployed, and they continued to keep in contact.
    On 30 August 2013, after Appellant returned from his deployment, SA AD
and her friends went to a local bar. Though it was not previously arranged,
Appellant later arrived at the same bar and socialized with SA AD. Over the
course of the evening, SA AD became intoxicated and began to flirt with Ap-
pellant. SA AD’s friends eventually drove her home and assisted her into her
house because of her level of intoxication. After her friends left, SA AD texted
Appellant and asked him to come over to her house. SA AD has little recollec-
tion of what occurred next, though based upon Appellant’s text messages, it
appears he entered her apartment around 0051 that morning and departed
less than an hour later at 0134. Around 0400 in the morning, SA AD woke up
nude and alone in her bed, on top of her sheets, with semen residue on her


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                  United States v. Condon, No. ACM 38765


stomach. Although she had little recollection of what had occurred while Ap-
pellant was at her residence, she believed Appellant had sexual intercourse
with her. Appellant’s subsequent discussions with her about that night con-
firmed her belief that he in fact had sexual intercourse with her.
    During the investigation of these allegations, Appellant engaged in addi-
tional misconduct. Appellant contacted several potential witnesses despite an
order prohibiting him from doing so, and he threatened to ruin SA AD’s repu-
tation as an AFOSI agent if she cooperated in the investigation. Around the
same time, SA AD found a military assault rifle sighting target on her door-
step. Appellant also attempted to impede AFOSI’s investigation against him
by asking his mother to move his vehicle off-base and to remove his personal
laptop from his residence to prevent a government search.
    Investigators also discovered evidence of two other sexual assaults which
were not charged but eventually offered at trial to demonstrate Appellant’s
propensity to commit sexual assaults. The first involved SA AD who claimed
that at the beginning of their relationship, while on a trip to New Orleans,
Appellant had sex with her while she was too intoxicated to recall what oc-
curred. The second involved Appellant’s ex-wife where she claimed, approxi-
mately ten years prior to the charged offenses, Appellant forced her to engage
in sexual activity with him after she told him she did not want to do so.

                               II. DISCUSSION
A. Factual Sufficiency
    Appellant contends the evidence is factually insufficient to sustain his
convictions of rape, forcible sodomy, and assault involving A1C ML, as well
as the sexual assault and stalking offenses involving SA AD.
    We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10
U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for factual sufficiency is “whether, after weighing the evidence
in the record of trial and making allowances for not having personally ob-
served the witnesses, [we are] 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.” Washington, 57 M.J. at 399.
   1. Offenses Involving A1C ML
  As to A1C ML, Appellant argues the physical assault as reported by A1C
ML would have been overheard by neighbors and that she would have sus-

                                       6
                  United States v. Condon, No. ACM 38765


tained greater injuries than those observed during her medical examination.
Appellant also attacks A1C ML’s credibility and re-raises many of the same
arguments made and rejected by the members at trial.
    Appellant’s neighbor testified that she did not recall hearing anything
unusual the night of the incident. In addition to potentially contradicting
A1C ML’s testimony, it also appeared to contradict Appellant’s own conces-
sions to investigators that he and A1C ML were yelling at each other that
evening. Regardless of whether the neighbor was confused as to the night in
question, or merely failed to overhear what occurred in Appellant’s residence,
the neighbor’s testimony fails to persuade the court that the allegations are
factually insufficient.
    As for the lack of observable injuries, the nurse who performed the sexual
assault forensic examination testified at trial. The nurse testified that it
would not be unusual for there to be no visible signs of trauma. She also testi-
fied that the absence of bruising was not a reliable way to judge the extent of
trauma to her body. Nevertheless, there were red marks on A1C ML’s shoul-
ders that were consistent with A1C ML’s allegations that Appellant bit her
on the shoulder during the attack. In addition, A1C ML’s allegation that she
scratched Appellant during the assault was corroborated by the discovery of
Appellant’s DNA under her fingernails. Furthermore, A1C ML immediately
reported the incident and the forensic examination was not inconsistent with
her allegations she reported.
    The members heard the testimony and personally observed the witnesses,
including A1C ML. Having carefully reviewed the record in this case, and
having made allowances for not having personally observed the witnesses, we
are satisfied that Appellant assaulted, raped, and forcibly sodomized A1C ML
as alleged. We find the evidence factually sufficient.
   2. Sexual Assault Offense Involving SA AD
   Appellant next argues that the sexual assault offense involving SA AD
was factually insufficient because SA AD was not so intoxicated that she was
unable to consent, and that even if she was, the evidence was insufficient to
demonstrate that Appellant should have known she was so intoxicated.
    Although it was unclear exactly how much alcohol SA AD drank that
night, she testified that, in addition to a hard cider and a mixed drink, she
believes she had six to seven shots of liquor. Both she and her friends de-
scribed her as very intoxicated. She had to be driven home, passed out in the
back of the car on the way home, and physically assisted into her house by
her friends.
    Upon arriving home, SA AD’s memory became unclear. She vaguely re-
called texting Appellant and asking him to come to her house. Text messages


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                  United States v. Condon, No. ACM 38765


beginning around 0015 in the morning showed that SA AD initially asked
Appellant to come over to her house to “snuggle.” Appellant was initially re-
luctant to come over and suggested he come over the next morning so he
would not “do this wrong.” Eventually, however, Appellant agreed to come
over and arrived at SA AD’s house around 0051 hours.
    SA AD testified that she had no memory of Appellant arriving at her
house and little memory of what occurred once he was there. SA AD did re-
call, however, three snippets of time when Appellant was at her house that
evening. First, she remembered laying her head on Appellant’s shoulder on
the couch. Next, she remembered being in the bedroom with Appellant and
recalled seeing her legs with her pajamas sliding down. Finally, at some later
point, SA AD recalled Appellant being on top of her and feeling his penis in-
side of her. She did not recall, at any point, being actively engaged in the
sexual conduct with Appellant.
   Text messages from that night suggest Appellant was in the house for no
longer than 40 minutes before he left. Several hours later at approximately
0400, SA AD woke up naked on her bed without clothes. There was semen on
her stomach, and she felt sore.
    Later that morning, SA AD texted Appellant to bring her a contraceptive
pill so she would not get pregnant. SA AD then telephoned Appellant. After
Appellant first asked SA AD whether she was recording their conversation,
he asked her whether she felt as though she was “sexually assaulted.” Appel-
lant later dropped off the contraceptive pill to SA AD as she had requested.
The following day, SA AD texted Appellant saying that it was wrong of him to
have sex with her because of how drunk she was. In response, Appellant re-
torted by claiming that SA AD asked him to have sex with her, and that
when she later asked him to stop, he did.
    The evidence demonstrated that SA AD was significantly intoxicated that
evening. This was based not only on her testimony, but also that of her
friends who took her home. She passed out in the back of the car on the way
home and then needed to be assisted into her house. After texting Appellant,
she had little recollection of anything that occurred. Her description was con-
sistent, however, with someone who subsequently passed out from alcohol.
She did not recall being actively engaged with Appellant that evening, and
the surrounding evidence and testimony suggested she was not. Appellant’s
later conversations about that evening with SA AD corroborate that Appel-
lant did have sex with her.
   Even more troubling, because it showed consciousness of guilt, were his
questions to SA AD about whether she was recording the conversation and
whether she felt she had been sexually assaulted. Appellant had known and
dated SA AD for approximately a year, so he was aware of how she behaved

                                      8
                   United States v. Condon, No. ACM 38765


while severely intoxicated. Under such circumstances, and based upon our
independent review of the record, we conclude beyond a reasonable doubt
that Appellant engaged in a sexual act with SA AD and that he knew or rea-
sonably should have known she was incapable of consenting to the act due to
her impairment. The evidence is factually sufficient for this offense.
   3. Stalking Offense Involving SA AD
   Finally, Appellant argues there is insufficient evidence to show that SA
AD was placed in fear of bodily harm by him calling her, yelling at her, fol-
lowing her during off-duty hours, and placing a weapons target at her resi-
dence. Appellant’s primary argument is that SA AD was offered a no-contact
order but she refused it.
    The course of conduct that constituted the stalking offense occurred be-
tween February 2013 and October 2013. It culminated several weeks after
the sexual assault with her discovering a weapon sighting target at her resi-
dence. Before the summer of 2013, SA AD vocalized her fears to Appellant
after he came to her house and was yelling at her about a disagreement over
their relationship. She told him that he made her feel unsafe in her own
home. During the course of their relationship, Appellant was frequently pos-
sessive, controlling, and confrontational with SA AD. After their relationship
ended and after he sexually assaulted her, the evidence supports that Appel-
lant left the target on her front steps. Ultimately, she and her roommate
were so scared that they terminated their lease early and moved to a location
where Appellant would be unable to find her.
   We have carefully reviewed the evidence adduced at trial. We are not per-
suaded by Appellant’s argument that SA AD’s refusal of a no-contact order
demonstrates a lack of fear. She explained that the reason for her refusal was
her desire, at the time of the offer, to keep her name out of the investigation.
Shortly thereafter, a no-contact order would have had little effect as Appel-
lant was placed in pretrial confinement. The record supports that although
SA AD was conflicted about whether to pursue allegations against Appellant,
Appellant’s actions toward her did place her in fear of bodily harm.
    We believe the evidence supports that Appellant’s course of conduct to-
ward SA AD was intended to cause SA AD emotional distress by placing her
in fear of physical harm, and that it did, in fact, cause her emotional distress.
Having made allowances for not having personally observed the witnesses,
we are convinced of Appellant’s guilt beyond a reasonable doubt.
B. Constitutional Challenge to Article 120(b)(3), UCMJ
    Appellant asserts his conviction of sexual assault for engaging in a sexual
act with SA AD while she was “incapable of consenting to the sexual act be-
cause she was impaired by an intoxicant” should be set aside because the of-


                                       9
                     United States v. Condon, No. ACM 38765


fense as charged is unconstitutionally vague. Specifically, Appellant asserts
that the terms “impairment,” “incapable,” and “competent” are not defined by
the statute and, therefore, what constitutes conduct prohibited by this offense
is ambiguous.
    We review the constitutionality of a statute de novo. United States v. Dis-
ney, 62 M.J. 46, 48 (C.A.A.F. 2005). The Due Process Clause of the Fifth
Amendment 8 “requires ‘fair notice’ that an act is forbidden and subject to
criminal sanction” before a person can be prosecuted for committing that act.
United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (quoting United
States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). Due process “also requires
fair notice as to the standard applicable to the forbidden conduct.” Id. (citing
Parker v. Levy, 417 U.S. 733, 755 (1974)). In other words, “[v]oid for vague-
ness simply means that criminal responsibility should not attach where one
could not reasonably understand that his contemplated conduct is pro-
scribed.” Parker, 417 U.S. at 757 (citing United States v. Harriss, 347 U.S.
612, 617 (1954)). A void for vagueness challenge requires inquiry into wheth-
er a reasonable person in Appellant’s position would have known that the
conduct at issue was criminal. See, e.g., Vaughan, 58 M.J. at 31 (upholding a
conviction under Article 134 for leaving a 47-day-old child alone on divers oc-
casions for as long as six hours; while Article 134 did not specifically list child
neglect as an offense, the appellant “should have reasonably contemplated
that her conduct was subject to criminal sanction, and not simply the moral
condemnation that accompanies bad parenting”); United States v. Sullivan,
42 M.J. 360, 366 (C.A.A.F. 1995) (“In our view, any reasonable officer would
know that asking strangers of the opposite sex intimate questions about their
sexual activities, using a false name and a bogus publishing company as a
cover, is service-discrediting conduct under Article 134.”).
    In addition, due process requires that criminal statutes be defined “in a
manner that does not encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983). This “more important aspect of
the vagueness doctrine” requires that the statute “‘establish minimal guide-
lines to govern law enforcement’” rather than “‘a standardless sweep [that]
allows policemen, prosecutors, and juries to pursue their personal predilec-
tions.’” Id. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574–75 (1974)) (al-
teration in original).
    The challenged provision of Article 120(b)(3)(A), UCMJ, makes it a crime
to “commit[ ] a sexual act upon another person when the other person is inca-


8   U.S. CONST. amend. V.




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                   United States v. Condon, No. ACM 38765


pable of consenting to the sexual act due to impairment by any drug, intoxi-
cant, or other similar substance, and that condition is known or reasonably
should be known by the person.”
    A “sexual act” is defined, in relevant part, as “the penetration, however
slight, of the vulva or anus or mouth of another by any part of the body or by
any object, with an intent to abuse, humiliate, harass, or degrade any person
or to arouse or gratify the sexual desire of any person.” Article 120(g)(1)(B),
UCMJ. With regard to consent, the statute provides, “A sleeping, uncon-
scious, or incompetent person cannot consent.” Article 120(g)(8)(B), UCMJ, 10
U.S.C. § 920(g)(8)(B).
   As the Supreme Court has observed, we do not evaluate the statute in the
abstract. “In determining the sufficiency of the notice a statute must of ne-
cessity be examined in the light of the conduct with which a defendant is
charged.” Parker, 417 U.S. at 757 (quoting United States v. National Dairy
Corp., 372 U.S. 29, 33 (1963)).
    Here, Appellant was charged with engaging in a sexual act with a woman
who was so intoxicated that (1) she had to be assisted out of the bar and into
her home by her friends; (2) she was completely unaware of Appellant leaving
her house less than an hour after his arrival; (3) she was left naked, on top of
her covers, with semen on her stomach, and remained in this condition for
several hours until she woke up; and (4) Appellant injected the potential that
she was sexually assaulted by him when he asked SA AD whether she felt as
though he sexually assaulted her. See also United States v. Ginn, No. ACM
38551, 2015 CCA LEXIS 334 (A.F. Ct. Crim. App. 17 Aug. 2015) (holding that
the same portion of Article 120 involved in the case at bar was not void for
vagueness where the appellant engaged in a sexual act with a woman who
was so intoxicated that she could not walk unaided from the bathroom to the
bed in an adjoining room). Even if there is some ambiguity as to the degree of
impairment necessary to render a person incapable of consenting, “a person
to whom a statute may constitutionally be applied will not be heard to chal-
lenge that statute on the ground that it may conceivably be applied unconsti-
tutionally to others, in other situations not before the Court.” Id. at *27 (quot-
ing Parker, 417 U.S. at 759).
   We find Appellant’s arguments that Article 120(b)(3), UCMJ, is void for
vagueness unconvincing. Appellant was on reasonable notice that his conduct
was subject to criminal sanction.
C. Denial of Challenge for Cause––Implied Bias
   Appellant alleges the military judge erred in denying the Defense chal-
lenge for cause concerning a panel member, Maj AF. Appellant contends Maj
AF should have been excused under the implied bias standard. The Defense’s


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                       United States v. Condon, No. ACM 38765


sole basis for the implied bias challenge against Maj AF at trial was “burden
of proof issues.” 9
    Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that a member
shall be excused for cause whenever it appears that the member “[s]hould not
sit as a member in the interest of having the court-martial free from substan-
tial doubt as to legality, fairness, and impartiality.”
   Implied bias is “viewed through the eyes of the public, focusing on the ap-
pearance of fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F.
2010) (quoting United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).
Therefore, appellate courts employ an objective standard when reviewing a
military judge’s decision regarding implied bias. United States v. Strand, 59
M.J. 455, 458 (C.A.A.F. 2004). “The hypothetical ‘public’ is assumed to be fa-
miliar with the military justice system.” Bagstad, 68 M.J. at 462 (citing Unit-
ed States v. Downing, 56 M.J. 419, 423 (C.A.A.F. 2002)). We review issues of
implied bias under a standard less deferential than abuse of discretion but
more deferential than de novo. Id. (citing United States v. Moreno, 63 M.J.
129, 134 (C.A.A.F. 2006)).
    In reviewing challenges for cause under the implied bias standard, mili-
tary judges are required to follow the “liberal grant” mandate, which “sup-
ports the UCMJ’s interest in ensuring that members of the military have
their guilt or innocence determined ‘by a jury composed of individuals with a
fair and open mind.’” United States v. James, 61 M.J. 132, 139 (C.A.A.F.
2005) (quoting United States v. Smart, 21 M.J. 15, 18 (C.M.A. 1985)).
“[M]ilitary judges must follow the liberal-grant mandate in ruling on chal-
lenges for cause, but we will not overturn the military judge’s determination
not to grant a challenge except for a clear abuse of discretion in applying the
liberal-grant mandate.” United States v. White, 36 M.J. 284, 287 (C.M.A.
1993). “[I]n the absence of actual bias, where a military judge considers a
challenge based upon implied bias, recognizes his duty to liberally grant de-


9   On appeal, Appellant appears to invite this court to expand the basis for the chal-
lenge to include the member’s initial responses to questions about whether the Air
Force was doing enough to combat sexual assault and whether a conviction must in-
clude confinement or a punitive discharge. This additional basis has been forfeited
absent plain error as it was not asserted at trial. See United States v. Bannwarth, 36
M.J. 265, 268 (C.M.A. 1993); Rule for Courts-Martial (R.C.M.) 912(f)(4). Having re-
viewed the member’s responses and explanations in their entirety, we conclude that
the military judge’s failure to grant a challenge for cause on this unraised rationale
was not plain error.




                                           12
                  United States v. Condon, No. ACM 38765


fense challenges, and places his reasoning on the record, instances in which
the military judge’s exercise of discretion will be reversed will indeed be
rare.” Clay, 64 M.J. at 277.
   We are not persuaded that the military judge should have excused Maj
AF under an implied bias challenge.
   In group voir dire, all members said that they understood that the De-
fense had no obligation to present evidence and no member disagreed with
that rule of law. The military judge then asked whether, despite this rule of
law, any of the members thought the Defense should put on witnesses and
evidence. Maj AF and one other member responded affirmatively. Counsel
and the court conducted individual voir dire with Maj AF and elicited more
detailed explanations as to these concepts.
      MJ: So, there was some discussion about—you heard my in-
      structions that an accused has an absolute right to remain si-
      lent and the defense has no burden whatsoever, they don’t have
      to do anything in a criminal trial, any trial. Do you understand
      that?
      Maj AF: Yes, sir.
       MJ: And I think there was some discussion about . . . they
       should do something and you indicated, yes. Can you kind of
       help walk me through that?
       Maj AF: Well, I guess, I understand that, but it’s still the
       thought process to be able to stay quiet and not be able to ex-
       plain their perspective is really, I guess, what I was trying to
       cope with the yes or no answer.
       MJ: That makes sense. We’re allowed to have human reactions.
       So, it’s very natural to think if I was involved in a situation in a
       courtroom or I was there, I might feel like I need to say some-
       thing or put on evidence. Is that fair?
       Maj AF: Yes, sir.
       MJ: Understanding that completely, are you comfortable that
       you will not draw any adverse inference, whatsoever, if they
       choose not to do anything?
       Maj AF: Yes, sir.
       MJ: And I’m not saying they’re going to do that or not do that. I
       don’t know. We’ll find out together. I just want to get a feel
       from you if you can follow my instructions and set that aside if
       that is their option?


                                       13
                    United States v. Condon, No. ACM 38765


       Maj AF: I can. Yes, sir.
    After voir dire, the Defense challenged Maj AF for cause based on actual
and implied bias. 10 Trial defense counsel argued that although Maj AF even-
tually stated that he would follow the military judge’s instructions, his vacil-
lating answers on what he expected from the Defense would cause a member
of the public to have concerns regarding the burden of proof.
    The military judge denied the challenge and provided a detailed explana-
tion of his rationale.
       With regard to [Maj AF], the challenge is denied. I don’t have
       any concerns of [Maj AF] sitting as a member in this case. Hav-
       ing watched him answer the questions, he did not struggle with
       the burden of proof. He struggled with a series of questions
       where we test somebody’s common sense and we talked about
       this on the record before the members came in and that is, “Do
       you expect us to put on a case?” And he reacted like many peo-
       ple did. I’d like to see something. That’s a pretty honest an-
       swer. The real question is when you follow up with him and ask
       him, “Do you understand if somebody stays quiet? That’s okay.”
       He did. He not only understood it, he went on to say without
       me asking questions, and this was towards the end of a defense
       counsel question. He said, “Silence is as the same as anything.”
       The defense asked, “What do you expect to see from us?” And
       he said, “Well, silence is the same as anything. I am not expect-
       ing to see anything.” And I did not have to step in to give him
       instructions on it. I did not have to step in to correct him. I did
       not step in to ask questions. He did that on his own through
       questions by the defense counsel, which tells me he was think-
       ing through the concepts which are complicated, we put them
       in here and have them ask that, he understood beyond a rea-
       sonable doubt; he actually remembered part of the instruction,
       maybe the other members did [too], but he actually repeated it,
       which tells me he was listening; he’s open to a consideration of
       the range of what can happen; he has no preconceived notions
       based on that paper, in reference to the charge sheet, pretty
       clearly. So, he seemed to me to be exactly what we want as a
       court member when it comes to the burden of proof and when it

10Appellant specifically does not raise the denial of the actual bias challenge on ap-
peal. We have reviewed the record and agree that the military judge did not err in
denying an actual bias challenge against Major AF.




                                         14
                  United States v. Condon, No. ACM 38765


       comes to the punishment, open to the range. . . . He’s got no ac-
       tual bias. He didn’t demonstrate implied bias and I’ve certainly
       considered the liberal grant mandate. When comparing him to
       the other members, though, he seems exactly like he falls with-
       in what we want from the rules for court-martial and what the
       convening authorities are supposed to consider.
   The crux of Appellant’s argument on appeal is two-fold. First, the military
judge’s reasoning was relevant only to actual bias rather than implied bias.
Second, the military judge did not fully consider and apply the liberal grant
mandate when denying the challenge for cause.
    Though we acknowledge that much of the military judge’s analysis was
focused on whether Maj AF was actually biased, the military judge’s ra-
tionale also impacted how the public would view the fairness of the proceed-
ing if he sat on the court-martial. How Maj AF responded to the questions
put forth by counsel and the military judge necessarily impacted whether the
public would question the member’s ability and willingness to follow the in-
structions of the military judge. Here, Maj AF demonstrated that he was ex-
tremely focused on the instructions provided by the military judge as he re-
cited the instructions back when answering questions. Furthermore, he was
thorough in explaining his thought process regarding his responses to the
questions posed by the military judge and counsel.
    In addition, we are also convinced that the military judge applied the lib-
eral grant mandate. The military judge, through the entire voir dire process,
frequently referenced the liberal grant mandate in granting and denying
challenges for cause. The military judge specifically cited the liberal grant
mandate as the justification for granting three other Defense challenges for
cause. From our review of the record in its entirety, we conclude that the mil-
itary judge’s recitation of the liberal grant mandate was not merely a per-
functory or talismanic reference and is worthy of some deference.
    Considering Maj AF’s responses through the eyes of the public and focus-
ing on the appearance of fairness in the military justice system, we find that
the military judge did not err. He considered the challenge based upon im-
plied bias, recognized his duty to liberally grant defense challenges, and
placed his rationale on the record. Under the “‘totality of the circumstances,’”
we find no reason to disturb his ruling. United States v. Terry, 64 M.J. 295,
302 (C.A.A.F. 2007) (quoting Strand, 59 M.J. at 456).
D. Ineffective Assistance of Counsel
   Pursuant to Grostefon, 12 M.J. 431, Appellant asserts that either the mili-
tary judge erred or, alternatively, his counsel were ineffective by not ques-




                                      15
                  United States v. Condon, No. ACM 38765


tioning SA AD in findings about a purported prior statement she made re-
garding her desire to have sex with Appellant on the night of the offense.
    Appellant also alleges his trial defense counsel were ineffective during
sentencing for failing to respond to testimony from the Government’s expert
and failing to obtain a psychosexual examination of Appellant. Appellant al-
leges that his counsel did not discuss the possibility of such an examination
with him and that, if he was aware of such an examination, his family would
have paid for it if necessary. Appellant asserts that, given the widespread use
of these examinations in civilian sentencing hearings, this court should con-
clude that his counsel’s failure to pursue such a test is per se ineffective.
    We ordered the submission of affidavits from trial defense counsel. Appel-
lant submitted an additional affidavit in reply. Having reviewed the affida-
vits of Appellant and his counsel, we conclude we need not order additional
fact-finding to resolve the assigned error. See United States v. Ginn, 47 M.J.
236, 248 (C.A.A.F. 1997).
    We review claims of ineffective assistance of counsel de novo, applying the
two-part test outlined by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007). Under that test, “[i]n order to prevail on a claim of ineffec-
tive assistance of counsel, an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010).
   The deficiency prong requires Appellant to show his counsel’s perfor-
mance fell below an objective standard of reasonableness, according to the
prevailing standards of the profession. Strickland, 466 U.S. at 688. To deter-
mine whether the presumption of competence has been overcome as alleged
by an appellant, we examine whether there is a reasonable explanation for
counsel’s actions and whether defense counsel’s level of advocacy fell measur-
ably below the performance ordinarily expected of fallible lawyers. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011).
    The prejudice prong requires Appellant to show a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. In doing so, Appel-
lant “must surmount a very high hurdle.” United States v. Moulton, 47 M.J.
227, 229 (C.A.A.F. 1997) (citing Strickland, 466 U.S. at 689). This is because
counsel is presumed competent in the performance of his or her representa-
tional duties. United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001).
Thus, judicial scrutiny of a defense counsel’s performance must be “highly
deferential and should not be colored by the distorting effects of hindsight.”
United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000) (citing Moulton, 47
M.J. at 229).

                                      16
                  United States v. Condon, No. ACM 38765


   In United States v. Polk, our superior court interpreted Strickland and
identified three basic questions to determine if the presumption of defense
counsel’s competence is overcome:
       (1) Are the appellant’s allegations true; if so, is there a reason-
       able explanation for counsel’s action in the case?
       (2) If the allegations are true, did the level of advocacy fall
       measurably below the performance ordinarily expected of falli-
       ble lawyers?
       (3) If counsel was ineffective, is there a reasonable probability
       that, absent errors, the outcome would be different?
32 M.J. 150, 153 (C.M.A. 1991). When challenging the performance of coun-
sel, an appellant bears the burden of establishing the truth of the factual al-
legations that would provide the basis for finding deficient performance. Tip-
pit, 65 M.J. at 76 (citing Polk, 32 M.J. at 153).
   1. Ineffective Assistance of Counsel During Findings
   Our analysis of Appellant’s complaint in findings starts with a review of
the Defense’s cross-examination of SA AD. The Defense asked about SA AD’s
desires toward Appellant on the night of the alleged sexual assault:
       [Defense Counsel (DC)]: [W]hen you were at The Red Door did
       you ever pull the accused aside and tell him you wanted to
       have sex that night?
       SA AD: I did not.
       DC: Did—internally, did you want to have sex with [Appellant]
       that night?
       SA AD: No. I wanted to, you know, I wanted to cuddle and be
       sweet. But I didn’t want to, like, have a one night stand or any-
       thing like that.
    Later in the trial, the Defense called a friend of Appellant who recalled
seeing the Appellant and SA AD at The Red Door sometime in late August.
Though the testimony was inconclusive as to whether he was referring to the
night of the assault, his testimony suggested he was. The witness recalled
Appellant introducing SA AD as his girlfriend. The Defense then requested a
hearing outside of the members.
    In a closed hearing, Appellant’s friend testified that he overheard SA AD
tell Appellant that she wanted to take him home, that he interpreted the
statement as referring to sex, and that Appellant smirked in response. In ad-
dition, Appellant’s friend also testified that at another point that evening
while Appellant was in the bathroom, SA AD told him that she wanted to


                                       17
                  United States v. Condon, No. ACM 38765


take Appellant home that evening to have sex. The Defense, however, told
the military judge that they did not intend to elicit SA AD’s purported second
statement and instead only intended to elicit SA AD’s statement to Appel-
lant. The military judge clarified with the Defense that this was their intent.
The military judge did not specifically make a ruling on the admissibility of
this additional statement by SA AD, but permitted Appellant’s friend to testi-
fy that he overheard her tell Appellant that she was “excited to be able to
take her sexy man home that evening” and that Appellant smirked in re-
sponse.
    It is accurate that trial defense counsel did not attempt to impeach SA AD
by cross-examination with these alleged prior inconsistent statements. These
statements, however, would have had very little probative value in the con-
text of this case. As such, there are four reasons Appellant cannot demon-
strate there was no reasonable explanation for his counsel’s actions, that his
counsels’ strategic decision fell measurably below the performance expected
of fallible lawyers, or that there is a reasonable probability that absent that
decision, the outcome of the trial would have been different.
   First, rather than providing SA AD the first opportunity to deny or at-
tempt to explain the purported statement overheard by Appellant’s friend,
their strategy was to instead confirm the statement with SA AD and then
present the purported inconsistent statement with their own witness. This is
a sound strategy and did not fall below the level of advocacy ordinarily ex-
pected.
    Second, as to the statement purportedly made to Appellant’s friend, Ap-
pellant is not able to show how the introduction of a prior inconsistent state-
ment that was substantially similar to the witness’s admitted testimony
would have tipped the balance in his favor. The Defense was able to establish
that SA AD was interested in being alone with Appellant the evening of the
sexual assault. They accomplished this not only through the testimony of Ap-
pellant’s friend about the conversation he overheard, but also through SA
AD’s text messages later that evening when she invited Appellant over to her
house “just to snuggle.”
   Third, as to the additional statement, there were aspects of that testimo-
ny that would have unnecessarily raised additional credibility concerns.
Whereas overhearing a private conversation where SA AD insinuated to her
ex-boyfriend a desire to have sex may be believable, especially in light of SA
AD’s later text messages, the additional statement would have raised other
concerns such as the likelihood that SA AD would tell a stranger that she
wanted to have sex with Appellant that evening.
   Finally, the relevance of this testimony was diminished because of the of-
fense charged and the Government’s theory of criminality. Appellant was al-

                                      18
                   United States v. Condon, No. ACM 38765


leged to have committed a sexual act upon SA AD while she was incapable of
consenting due to the impairment of an intoxicant. This theory focused on
how intoxicated SA AD was at the end of evening and later at her house. It
was not that SA AD actively refused to have sex with Appellant or told Appel-
lant “no.” The Government’s focus was on her inability to consent because of
her significant degree of intoxication. Consequently, the additional unoffered
statement from Appellant’s friend provided little added benefit that was not
already before the members.
   For these reasons, we find that Appellant has failed to establish that he
was denied effective assistance of counsel.
   2. Ineffective Assistance of Counsel During Sentencing
    Dr. DE, the prosecution’s forensic psychologist testified about recidivism
in sentencing. He explained that deviant sexual behaviors––behaviors that
are illegal or outside the norm––are a primary indicator for recidivism. Ac-
cording to Dr. DE, antisocial personality traits, such as using other people for
one’s own advantage, lacking empathy, or appearing glib and superficial,
were also indicators for recidivism.
    On cross-examination, Dr. DE acknowledged he had never treated or spo-
ken to Appellant. Trial defense counsel also elicited facts present in this case
that weighed against recidivism, to include that Appellant was over 25 years
of age, that he had been in a relationship lasting over two years, and that
none of his victims were strangers, family members, children, or male.
   In response to an order compelling affidavits, the three trial defense
counsel who represented Appellant at trial provided a joint declaration to this
court. The declaration contained, as an attachment, a second declaration
from the Defense expert in forensic psychology, Dr. KG.
    As one would expect of competent defense counsel, trial defense counsel in
this case retained a well-qualified expert in forensic psychology, Dr. KG, and
relied upon their expert as they prepared for trial. Dr. KG had served as a
mitigation expert on death penalty cases, had extensive experience in the ar-
ea of risk/recidivism management with criminal offenders, including sex of-
fenders, and had provided forensic psychological services in over 7,000 legal
cases. Trial defense counsel specifically considered whether to have a psycho-
logical evaluation conducted on Appellant, but after consultation with Dr.
KG, made a strategic decision not to do so. Dr. KG was very familiar with the
risk factors for sex offender recidivism, and, in her professional opinion, “tes-
timony regarding risk factors and recidivism in [Appellant’s] case would
prove more harmful than helpful.” Furthermore, Dr. KG advised counsel that
she was aware of the criteria used to score the test, and, knowing the facts of
Appellant’s case, did not believe that “formalizing the scores” would provide


                                       19
                  United States v. Condon, No. ACM 38765


any additional information helpful to the Defense. This advice was consistent
with a prior expert retained by the Defense as well. Based upon this advice,
the Defense team reasonably concluded that a psychosexual examination was
not likely to be a productive venue and that they could better represent their
client through other pre-trial preparations.
    This is not a situation where trial defense counsel neglected to consider
all possibilities for Appellant’s sentencing case or were ill-prepared to vigor-
ously represent their client. They relied on their expert and made a reasoned
strategic decision. Even if this strategic decision had ended up being the
wrong choice, trial defense counsel’s well-thought-out, well-informed, and ob-
jectively reasonable decision did not fall measurably below the level of advo-
cacy expected from fallible lawyers. In reviewing the decisions and actions of
trial defense counsel, we will not second guess reasonable strategic or tactical
decisions. See United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993).
   Furthermore, Appellant has not met his burden of showing that there is a
reasonable probability that, but for the failure to obtain a psychosexual ex-
amination, the outcome of the trial would have been different. Utilizing the
advice of their expert, the defense counsel conducted a thorough cross exami-
nation of the Government’s expert and effectively highlighted certain factors
in Appellant’s case that the Government’s expert conceded weighed against
Appellant reoffending. There is no reasonable probability that the outcome at
sentencing would have been different if Appellant had undergone a psycho-
sexual exam and the results had been presented to the members.
   Under these facts, trial defense counsel made a tactical decision not to
conduct a psychosexual examination of Appellant. Furthermore, based upon
their effective cross-examination of the Government expert, Appellant was
unable to demonstrate prejudice. As such, we decline to grant relief.
E. Findings Instructions
     Appellant next asserts the military judge should have provided the De-
fense’s proposed instruction, or a suitable replacement, regarding what con-
stitutes inability to consent as it pertained to the alleged sexual assault
against SA AD. The Defense specifically requested the military judge to in-
struct the members that “a person is capable of consenting to a sexual act of
sexual intercourse unless she is incapable of: (1) understanding the act; (2)
it’s [sic] motive; (3) and its possible consequences.” (emphasis added). Appel-
lant argues the proposed instruction was necessary to clarify for the members
that a person can be impaired and yet have the capacity to consent to sexual
intercourse.
   It is the military judge’s duty to properly instruct the members at trial.
United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001). A military


                                      20
                   United States v. Condon, No. ACM 38765


judge’s decision to provide an instruction is reviewed for an abuse of discre-
tion. United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996). However,
the propriety of the instructions given by the military judge is reviewed de
novo. Id. In examining instructions provided by the military judge, an appel-
late court examines “whether the instruction[s] as a whole provide[ ] mean-
ingful legal principles for the court-martial’s consideration.” United States v.
Truman, 42 C.M.R. 106, 109 (C.M.A. 1970); see also Jones v. United States,
527 U.S. 373, 391 (1999) (stating that each instruction must be evaluated in
the “context of the entire charge”). “The military judge has considerable dis-
cretion in tailoring instructions to the evidence and law.” United States v.
Hopkins, 56 M.J. 393, 395 (C.A.A.F. 2002).
    When counsel request specific instructions, the military judge has sub-
stantial discretion in deciding on the instructions to give and whether the in-
struction is appropriate. United States v. Miller, 58 M.J. 266, 270 (C.A.A.F.
2003). This discretion must be exercised in light of correct principles of law as
applied to the facts and circumstances of the case. Id. For the military judge’s
refusal to instruct the members as requested to be in error, the requested in-
struction must be correct, it must not be substantially covered elsewhere in
the instructions, and must be “on such a vital point in the case that the fail-
ure to give it deprived [the] defendant of a defense or seriously impaired its
effective presentation.” Id. (alteration in original).
    Prior to individual voir dire and the presentation of evidence, the military
judge cautioned the members regarding the interplay of intoxication as it re-
lated to an ability to consent:
           If you’ve been to a SAPR down day, likely this is an area
       where there may be, not necessarily is, but there may be some
       discrepancy between what the law is and then what people
       teach in relation to consent as it relates to alcohol. I say that
       only because I too am required to attend SAPR training, so I
       had the opportunity to see some of it recently. And it’s possible
       that you’ve heard that alcohol as little as a drink or some num-
       ber more than that lead to a lack of consent. And so, when you
       ultimately start to deliberate, the instruction I talk about is
       one of the elements—I’m not going to go through all of them—
       but it is that the individual in the allegation, the alleged vic-
       tim, was incapable of consenting to these sexual acts due to
       impairment by drug, intoxicant, or similar substance. And that
       condition was known, or reasonably should have been known,
       by the person charged with the offense.
           So, the law does define consent. “Consent” means a freely
       given agreement to the conduct at issue by a competent person.


                                       21
                    United States v. Condon, No. ACM 38765


        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 make consent. A cur-
        rent or previous dating or social or sexual relationship by itself
        shall not constitute consent. A sleeping, unconscious, or incom-
        petent person cannot consent to a sexual act. The government
        has the burden to prove beyond a reasonable doubt that con-
        sent did not exist. And then likely I would give you some fac-
        tors to consider. The important thing is alcohol, of course, can
        be a factor in play in a lack of consent. However, . . . a single
        drink likely does not obviate consent. I mean, a lack of consent
        is where a person is not capable of understanding their actions
        and doesn’t understand what they’re consenting to. That can
        differ of course from person to person and situation to situa-
        tion. So, I want you to understand that.
    In the military judge’s findings instructions regarding the alleged sexual
assault against SA AD—instructions that he provided to the members both
orally and in writing—he again advised the members that one of the ele-
ments that the Government must prove beyond a reasonable doubt was that
SA AD was incapable of consenting to the sexual act due to impairment by an
intoxicant.
    As to consent, the military judge’s findings instructions defined the term
just as he had done previously during voir dire. 11 Unlike voir dire, however,
the military judge did not further instruct the members on what constituted
lack of consent or an inability to consent. The military judge also defined
“impaired” as “any intoxication sufficient to impair the rational and full exer-
cise of the mental or physical faculties.”
    We first address whether the Defense’s proposed instruction regarding
“capability to consent” was a correct statement of the law. We conclude that
the requested instruction was not. Our superior court recently adopted a def-
inition of “incapable of consenting” that requires the alleged victim to lack
the cognitive ability to appreciate the sexual conduct in question or lack the
physical or mental ability to make or communicate a decision about whether
he or she agreed to the conduct. United States v. Pease, 75 M.J. 180, 185–86
(C.A.A.F. 2016). This definition differs from that requested by the Defense in

11 The military judge provided the definition of consent earlier in his finding instruc-
tions and then informed the members that it was unnecessary for him to re-read all
of the same definitions when they reoccurred later in the findings instructions.




                                          22
                  United States v. Condon, No. ACM 38765


this case. The Defense’s requested definition failed to address an inability to
consent where the alleged victim lacks the physical or mental ability to do so.
Instead, the Defense’s proposed definition focused solely on the alleged vic-
tim’s understanding and appreciation of the event. In addition, the Defense’s
requested instruction added additional requirements that the alleged victim
also not understand Appellant’s motive or the consequences of the act. As the
Defense’s proposed instruction is incomplete and potentially misleading, it
was not error for the military judge to decline to provide the Defense’s re-
quested instruction.
   We next address whether the military judge’s instructions provided to the
members were correct and sufficient under the facts of this case. We conclude
they were and that it was not “vital” for the military judge to instruct the
members further on what constituted an inability to consent.
    Under the facts of this case, the definition of consent as a freely given
agreement was sufficient based on the ordinary understandings of the words
used to define consent. In addition, the definition of “impairment” was con-
sistent with the normal sense of the word in common usage. The military
judge’s instructions ensured that the members were adequately advised that
“impairment” was not meant to stand on its own, but to be read in conjunc-
tion with the term “incapable of consenting.” In other words, impairment
alone was not sufficient to show inability to consent. The impairment would
have to be to a certain level such that the alleged victim was unable to enter
into a freely given agreement.
    While we acknowledge that the military judge could have provided addi-
tional instructions, such as those subsequently set out in Pease, it was not an
abuse of discretion for the military judge to refrain from doing so under the
facts of this case. Unless the military judge expected or feared that the mem-
bers might become confused by the terms considering the facts of the case be-
fore them, there was little reason to provide more detailed instructions on
what constituted “capability to consent.” Cf. United States v. Long, 73 M.J.
541, 545–46 (Army Ct. Crim. App. 2014) (in response to a member question
that raised inability to consent as a subject of potential confusion, the trial
judge did provide an additional instruction regarding whether someone who
is intoxicated or has been drinking is competent to give consent). There was
nothing in the military judge’s instructions, nor in argument of trial counsel,
that incorrectly suggested or inferred that only a minimal amount of impair-
ment was necessary for the Government to prove that SA AD was incapable
of consenting. There was no evidence or suggestion that the members misun-
derstood the instructions as provided. Instead, it was clear throughout the
trial that the amount of impairment must be substantial before it rises to a
level that could result in an inability to consent.



                                      23
                   United States v. Condon, No. ACM 38765


    At the beginning of trial, in voir dire, the military judge specifically in-
structed the members that a single alcoholic drink would likely not obviate
consent and that lack of consent is “where a person is not capable of under-
standing their actions and doesn’t understand what they’re consenting to.”
Though not included in the findings instruction portion of the trial, the mili-
tary judge’s explanation was consistent with the findings instructions he pro-
vided, as well as the Government’s theory of culpability.
    The Government, rather than erroneously suggesting that any level of in-
toxication equates to an inability to consent, focused instead on the extreme
level of impairment of SA AD that evening, to include that her blood-alcohol
level may have been as high as .34, she needed assistance from her friends to
get into the house, she passed out from alcohol before Appellant arrived, Ap-
pellant likely had to carry her up the stairs because of her intoxication, she
had significant memory loss as a result of her intoxication, and Appellant’s
actions and statements afterward suggested that he understood that she was
too intoxicated to consent when he engaged in sex with her.
    We believe the military judge’s instructions were substantively complete
and correct. See United States v. Wolford, 62 M.J. 418, 419 (C.A.A.F. 2006).
We conclude that the military judge did not abuse his discretion in refusing
to provide the Defense’s instruction for “incapability to consent,” and did not
abuse his discretion by failing to provide a substitute instruction for this con-
cept.
F. Findings Argument
    For the first time on appeal, Appellant identifies several comments made
by the trial counsel during the closing argument and asserts that the argu-
ment was improper. The errors include allegations that trial counsel’s find-
ings argument included facts not in evidence, personal attacks on the De-
fense, impermissible argument that invoked the Air Force’s training on sexu-
al assault prevention, and erroneously called upon the members to do “jus-
tice” with their verdict.
    As Appellant failed to object to these matters at trial, we review for plain
error, only granting relief if he carries his burden of demonstrating: “(1) there
is error, (2) the error is plain or obvious, and (3) the error results in material
prejudice to a substantial right.” United States v. Fletcher, 62 M.J. 175, 179
(C.A.A.F. 2005). Improper argument is a question of law that we review de
novo. United States v. Sewell, No. 16-0360/AR, 2017 CAAF LEXIS 59, at *10
(C.A.A.F. 1 Feb. 2017). When determining whether prosecutorial comment
was improper, the statement “must be examined in light of its context within
the entire court-martial.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F.
2005).



                                       24
                   United States v. Condon, No. ACM 38765


    Counsel are to limit arguments to evidence in the record and reasonable
inferences that can be drawn from that evidence. United States v. Baer, 53
M.J. 235, 237 (C.A.A.F. 2000). While a trial counsel “may strike hard blows,
he is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.” Fletcher, 62 M.J. at 179
(quoting Berger v. United States, 295 U.S. 78, 88 (1935)). “[I]t is error for trial
counsel to make arguments that ‘unduly . . . inflame the passions or prejudic-
es of the court members.’” United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F.
2007) (quoting United States v. Clifton, 15 M.J. 26, 30 (C.M.A. 1983)). Trial
counsel are also prohibited from injecting into argument irrelevant matters,
such as facts not in evidence or personal opinions about the truth or falsity of
testimony or evidence. Schroder, 65 M.J. at 58; Fletcher, 62 M.J. at 179;
R.C.M. 919(b), Discussion. To that end, courts have struggled to draw the
“exceedingly fine line which distinguishes permissible advocacy from imper-
missible excess.” Fletcher, 62 M.J. at 183 (quoting United States v. White, 486
F.2d 204, 207 (2d Cir. 1973)).
    In evaluating counsel’s argument, our decision need not depend on
whether any of trial counsel’s arguments were, in fact, improper if we con-
clude Appellant has not met his burden of establishing the prejudice prong of
the plain error analysis. United States v. Erickson, 65 M.J. 221, 224 (C.A.A.F.
2007). The “best approach” to the prejudice determination involves balancing
three factors: “(1) the severity of the misconduct, (2) the measures adopted to
cure the misconduct, and (3) the weight of the evidence supporting the con-
viction.” Fletcher, 62 M.J. at 184. We also recognize that the lack of defense
objection is some measure of the minimal prejudicial impact of the trial coun-
sel’s argument. United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 2001). In
sum, “reversal is warranted only ‘when the trial counsel’s comments, taken
as a whole, were so damaging that we cannot be confident that the members
convicted the appellant on the basis of the evidence alone.’” Sewell, 2017
CAAF LEXIS 59, at *11 (quoting United States v. Hornback, 73 M.J. 155, 160
(C.A.A.F. 2014)).
    We first address the portions of trial counsel’s argument that Appellant
now asserts constituted facts not in evidence. Appellant alleges trial counsel
improperly asserted that over 20 agents conducted over 100 interviews as
part of the investigation of Appellant’s misconduct. The Defense, however,
specifically elicited this information when cross-examining another special
agent, SA CS. Moreover, considering the argument in its totality, we reject
Appellant’s assertion that the cursory reference constituted improper “bol-
stering.”
   Appellant also asserts trial counsel was incorrect when arguing that their
expert’s most conservative estimate of SA AD’s blood alcohol level was .22.

                                        25
                  United States v. Condon, No. ACM 38765


Though Appellant may disagree with SA AD’s blood alcohol level or the
meaning of the expert’s testimony in the context of this case, it was a reason-
able inference derived from the expert’s testimony. These portions of trial
counsel’s argument are not error, plain or otherwise.
    Appellant next asserts trial counsel’s description of the Defense’s argu-
ment as “smoke and mirrors” constituted a personal attack on trial defense
counsel. Specifically, trial counsel argued that, “Members, when a unit is in
retreat they pop smoke to hide their movements to obstruct and distract. . . .
Smoke bombs, mirrors, and distractions.” Despite Appellant’s assertions to
the contrary, counsel’s arguments, when taken in the proper context, were
not personally attacking opposing counsel or their integrity. Trial counsel did
not accuse trial defense counsel of fabricating a defense or omitting favorable
evidence. Cf. Fletcher, 62 M.J. at 182. Instead, trial counsel was, in a cursory
manner, attempting to highlight the weaknesses in the Defense’s arguments,
contending that some of the arguments being advanced were not truly rele-
vant to the issues at hand. After reviewing the entirety of trial counsel’s ar-
gument, we find that the “smoke and mirrors” comment was fleeting and did
not prejudice Appellant. See United States v. Burgh, No. ACM 38207, 2014
CCA LEXIS 824, at *15–16 (A.F. Ct. Crim. App. 16 Apr. 2014) (unpub. op.)
(finding no prejudice for trial counsel’s “smoke bombs” argument given the
limited nature of the comments). Under the facts and circumstances of this
case, trial counsel’s argument was not plain error and, assuming it did consti-
tute a personal attack, Appellant was not prejudiced by this argument.
   Appellant also argues trial counsel improperly referred to an expert’s tes-
timony regarding false allegations. The sole reference to the expert’s testimo-
ny was as follows:
       And the testimony of [the expert] and we were talking about
       this concept, that has been researched, of false allegations and
       what you see there? What do you look for? Well, the primary
       motive is alibi. Overwhelmingly, the number one is alibi. You
       need a reason for something that has happened to you; an un-
       explained pregnancy, an unexplained sexually-transmitted dis-
       ease. We don’t have any of that here. So, the next one would be
       revenge, but if revenge was her goal, she was going about it the
       wrong way with a restricted report.
Trial counsel then moved on to discussing Appellant’s statement to investiga-
tors and how Appellant’s story changed during the course of the interview. As
with every other allegation regarding the findings argument raised on ap-
peal, Appellant did not object to this argument at trial.
    This was proper argument and did not constitute impermissible “human
lie detector” testimony. Impermissible “human lie detector” testimony is “an

                                      26
                   United States v. Condon, No. ACM 38765


opinion as to whether the person was truthful in making a specific statement
regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36
(C.A.A.F. 2014) (quoting United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F.
2007)). In his testimony, the expert did not state an opinion as to whether
any victim was telling the truth, and trial counsel did not argue the expert
made such an assertion. Instead, in the context of the entire argument, trial
counsel was noting reasons that false allegations were less likely in this case
because many of the warning signs were not present here. As the Defense
had attacked the victims’ credibility on cross-examination and implied that
they fabricated the allegations, this was a permissible tactic to rebut that ar-
gument. Thus, this argument was not error, plain or otherwise.
    Appellant also argues trial counsel improperly informed the members
that they should exact “justice” by finding Appellant guilty––a finding that
would also assist the victim with the self-blame she was experiencing. We
agree that referencing the jury’s societal obligation is inappropriate if it sug-
gests the panel base its decision on the impact of the verdict on society, a vic-
tim, and the criminal justice system as a whole, rather than the facts of the
case. We do not, however, conclude trial counsel’s argument suggested this
improper purpose. Trial counsel repeatedly referred to the military judge’s
instructions and implored the members to follow the law. He did not tie the
theme of “rendering justice” to any societal obligation or ask the members to
protect the victims. To the extent that trial counsel suggested that the verdict
would set things right, we find that trial counsel was simply telling the mem-
bers to follow the law. This tactic was appropriate. In addition, this was not
an argument that would inflame the passions of the court members. See
United States v. Marsh, 70 M.J. 101, 102 (C.A.A.F. 2011). As such, we are
confident Appellant was not prejudiced by this argument.
    Appellant further argues trial counsel improperly invoked the Air Force’s
training on sexual assault, specifically the “believe the victim” portion of the
training. The basis for Appellant’s argument is that, after referring to the
members’ duty to determine the believability of all witnesses, trial counsel
suggested that they must decide whether A1C ML was lying or making an
innocent mistake. Trial counsel then argued that “if you are firmly convinced
in your gut, in your soul, in your mind that she is not pure evil, and that she
is not a liar, then you must convict.” As an initial matter, trial counsel nei-
ther referred to the “believe the victim” training, nor do we find that the ar-
gument otherwise inferred or invoked Air Force training regarding sexual
assault prevention as a method to induce the members to disregard the law.
As to the credibility of A1C ML, trial counsel was referencing the military
judge’s own instructions on the members’ duty to determine the believability
of the witnesses.



                                       27
                   United States v. Condon, No. ACM 38765


    We are, however, troubled by trial counsel’s suggestion that if the mem-
bers were unable to conclude that A1C ML was not a “liar” and “pure evil,”
that they must convict. As noted within the beyond-a-reasonable-doubt in-
struction, the members are only required to convict if they find Appellant
guilty of each element of a crime beyond a reasonable doubt. If they do not,
they must acquit. To the extent that trial counsel’s argument is contrary to
this fundamental principle, it is not legally correct. It also appears to set up a
false dichotomy—that an acquittal is only appropriate if A1C ML lied and is
pure evil, and a conviction equates to a finding that A1C ML did not lie and is
not pure evil. Whether A1C ML was a liar or “pure evil” were not elements of
the offense, and were entirely irrelevant to whether Appellant was reasona-
bly mistaken as to consent. As such, this argument was error.
    Nevertheless, this argument was a few sentences toward the beginning of
an argument that spanned 39 pages in the record of trial. Trial counsel did
not dwell on the argument and, on varying occasions, reiterated the correct
instructions on when the members must acquit or convict. In addition, the
military judge repeatedly instructed the members that, if the Government
failed to prove each element beyond a reasonable doubt, then they must ac-
quit. Apparently, the members followed this instruction when they acquitted
Appellant of all charges relating to Ms. JD. In the context of the entire argu-
ment, including that Appellant did not object, we conclude that Appellant
was not prejudiced by this erroneous portion of the argument. See United
States v. Pabelona, No. 16-0214/NA, 2017 CAAF LEXIS 58, at *7–8. “[W]e are
‘confident that the members convicted [Appellant] on the basis of the evi-
dence alone.’” Sewell, 2017 CAAF LEXIS 59, at *14 (quoting Hornback, 73
M.J. at 160).
    Finally, Appellant contends even if none of the alleged errors entitle him
to relief, he is nevertheless entitled to relief under the cumulative error doc-
trine. We review such claims de novo. United States v. Pope, 69 M.J. 328, 335
(C.A.A.F. 2011). Cumulative error occurs when “a number of errors, no one
perhaps sufficient to merit reversal, in combination necessitate the disap-
proval of a finding.” Id. (quoting United States v. Banks, 36 M.J. 150, 170–71
(C.M.A. 1992)). “Assertions of error without merit are not sufficient to invoke
this doctrine.” United States v. Gray, 51 M.J. 1, 61 (C.A.A.F. 1999). We will
reverse the proceedings only if we determine the cumulative errors denied
the appellant a fair trial. See Pope, 69 M.J. at 335.
    Here, Appellant was acquitted of all charges involving a third victim. Af-
ter considering trial counsel’s comments, taken as a whole, we are convinced
that Appellant was convicted on the basis of the evidence alone. Thus, we do
not grant Appellant relief under this theory.




                                       28
                  United States v. Condon, No. ACM 38765


G. Victim’s Unsworn Statement in Sentencing
   Pursuant to Grostefon, 12 M.J. 431, Appellant argues the military judge
erred in permitting A1C ML and SA AD to submit unsworn statements in
sentencing. We disagree, concluding as this court has done in previous cases
that the military judge did not abuse his discretion in permitting sentencing
evidence in this manner under the facts of this case. See United States v.
Rowe, No. ACM 38880, 2017 CCA LEXIS 89 (A.F. Ct. Crim. App. 8 Feb. 2017)
(unpub. op.) (holding the military judge did not abuse his discretion when
permitting a victim to submit an unsworn statement in sentencing); see also
United States v. Wareham, No. ACM 38820, 2016 CCA LEXIS 609 (A.F. Ct.
Crim. App. 20 Oct. 2016) (unpub. op.).
    As to the substance of the unsworn statements, however, we do have two
concerns worthy of mention. First, we are concerned about the portion of SA
AD’s unsworn statement that referenced Appellant’s uncharged conduct to-
ward SA AD during their relationship. SA AD told the members that, “[w]hen
I began to write this impact statement, I thought about all the other experi-
ences with [Appellant] that you did not get to hear about, but which were
equally terrifying and which . . . would have even more clearly exposed [Ap-
pellant’s] true character.” She did not further disclose what those other expe-
riences might have been with Appellant.
    This portion of the unsworn statement that references “other experiences”
not directly relating to or resulting from the charged offenses is problematic
as it exceeded the scope of R.C.M. 1001(b)(4). Nevertheless, the military judge
did provide a curative instruction. Cf. United States v. Barrier, 61 M.J. 482,
485 (C.A.A.F. 2005) (recognizing that in most cases the military judge’s in-
structions could serve to place inadmissible portions of an accused’s unsworn
statement in context). The military judge told the members:
       In relation to the statement of [SA AD], in as much as it refer-
       ences uncharged conduct, you may not speculate about the ve-
       racity of the nature of such conduct. You should focus, in rela-
       tion to [SA AD], on the impact of the charged offenses not on
       the potential impact of unknown uncharged offenses.
    Under the facts of this case, we find the military judge’s curative instruc-
tion was adequate to obviate any prejudice to Appellant by SA AD’s unsworn
statement. In so holding, we note that no specific instances of these “other
experiences” were included within the unsworn statement. Furthermore, the
military judge instructed the members not to speculate about what those ex-
periences might have been and directed the members to instead focus on the
impact of the charged offenses in determining an appropriate punishment.




                                      29
                   United States v. Condon, No. ACM 38765


    Second, it does not appear that the military judge conducted a balancing
test under Mil. R. Evid. 403. See United States v. Carter, 74 M.J. 204, 206–07
(C.A.A.F. 2015) (the admission of sentencing evidence is subject to the Mil. R.
Evid. 403 and the substantive law and procedures set forth in R.C.M. 1001.).
Accordingly, we give the military judge less deference. Though the military
judge did not conduct a Mil. R. Evid. 403 balancing test, our review of the
record reveals that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice to Appellant. The military judge
provided an appropriate general instruction to the members on how to assess
unsworn statements, as well as a specific curative instruction regarding the
uncharged misconduct discussed in the statement from SA AD. We presume
the court members followed the military judge’s instructions. See United
States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012). We find no evidence that
the members were unable to consider the unsworn statements in their proper
context or that they did not follow the military judge’s instructions.
H. Sentencing Instruction and Argument
    Appellant’s initial brief to this court alleged the prosecution committed
prejudicial error during its sentencing argument. The errors identified in-
cluded trial counsel referencing Appellant’s lies to investigators to suggest
Appellant’s lack of remorse, and purportedly arguing that the members
should sentence Appellant more harshly because he exercised his right to tri-
al by court-martial and to confront witnesses against him. 12
    After our initial review of the record of trial, we specified an issue as to
whether the military judge erred when instructing the panel members during
sentencing that Appellant’s status as an AFOSI agent could be considered as
a matter in aggravation. We also asked whether, if the instruction was given
in error, the prejudicial impact on Appellant was exacerbated by trial coun-
sel’s sentencing argument that Appellant should be held to a “higher stand-
ard” because of his position as an AFOSI agent. The latter concern identified
by this court was not part of Appellant’s initial complaint about the appropri-
ateness of trial counsel’s sentencing argument.
    For the reasons discussed in more detail below, we find the military judge
did not err in providing the sentencing instruction in this particular case. As
to the propriety of trial counsel’s sentencing argument, we find the “higher



12 Pursuant to Grostefon, 12 M.J. 431, Appellant also requested that this court con-
sider portions of the sentencing argument that Appellant asserts were misstatements
of the evidence. We did so and find that it was proper argument.




                                        30
                    United States v. Condon, No. ACM 38765


standard” argument was erroneous. However, we find Appellant suffered no
prejudice from this argument.
     1. Status of an AFOSI Agent as an Aggravating Factor
    Prior to sentencing argument, the military judge provided counsel with
his intended sentencing instructions. The Defense objected to the portion of
the instructions regarding the use of Appellant’s status as an AFOSI agent
for evidence in aggravation. The following discussion ensued:
        DC: The objection is to . . . the inclusion of status as an OSI
        agent as an aggravator. We—our position is that the duty sta-
        tus of [Appellant] is not an appropriate aggravator.
        MJ: Trial Counsel.
        TC: Your Honor, I believe that it is an appropriate aggravator
        and fair instruction on the law to the members. It is not an im-
        permissible consideration for them, particularly in light of
        his—the dereliction of duty charge—all the charges, Your Hon-
        or, but particularly the charges that occurred while he was a
        credentialed OSI agent.
        MJ: And particularly the dereliction of duty charge, Defense
        Counsel, and frankly the obstruction of justice charge in an
        OSI facility. I think it’s fair to characterize that as an aggrava-
        tor. And so your objection is noted; it’s overruled.
    During argument, trial counsel raised Appellant’s status as an AFOSI
agent and discussed the corresponding standards of conduct Appellant agreed
to follow:
        TC: And what makes this all worse? He was an OSI agent. An
        OSI agent trained to investigate crimes. By his own admission,
        trained to investigate sexual assaults, to understand how vic-
        tims tick. Now, when he became an OSI agent he agreed to a
        code above our core values, a set of standards in addition to in-
        tegrity and service before self and excellence in all that we do—
        DC: Objection. Facts not in evidence. 13
        MJ: Trial Counsel?


13Although the basis for this objection was facts not in evidence, we find the Defense,
through their previously raised objection regarding the military judge’s proposed sen-
tencing instructions, adequately preserved their complaint that Appellant’s duty sta-
tus was not a proper matter in aggravation.




                                          31
                  United States v. Condon, No. ACM 38765


       TC: Your Honor, I’m just talking generally about the standards
       of being an OSI agent.
       MJ: With that in mind, I’ll overrule the objection. Members of
       the court, just remember arguments of counsel, of course, are
       how they view the evidence and they are to assist you in your
       deliberations. You may proceed.
       TC: Thank you, Your Honor.
       TC: He agreed to serve and protect. He agreed to uphold the
       law. He agreed to investigate crimes. He agreed to meet higher
       standards. And you’ve seen his training records from OSI; he
       displayed a very strong initial rapport, choice questions, control
       of subjects during denials. He has a very good investigative
       mindset. Expect great things from this agent. He violated every
       one of those standards, every one of those expectations when he
       assaulted, stalked, and threatened [SA AD]. He doesn’t care
       about the code. He doesn’t care about standards or rules or law.
       What we view as objective standards by which society func-
       tions, he views as something to completely ignore and that’s
       what makes him so dangerous.
(Emphasis added).
    At the conclusion of the sentencing arguments, the military judge in-
structed the members on what they should consider in determining an ap-
propriate punishment. In doing so, the military judge elected to include a list
of factors the members should consider generally, as well as specific factors
that they should consider as aggravating evidence:
       In selecting a sentence, you should consider all matters in ex-
       tenuation and mitigation as well as those in aggravation,
       whether introduced before or after findings. Thus, all the evi-
       dence you have heard in this case is relevant on the subject of
       sentencing.
       You should consider evidence admitted as to the nature of the
       offenses of which the accused stands convicted, plus the ac-
       cused’s combat and deployment record; the prior honorable dis-
       charges of the accused; the duration of the accused’s pretrial
       confinement or restriction; the accused’s [enlisted performance
       reports]; the medals and awards worn by the accused; and the
       lack of any previous convictions.
       In aggravation you should consider the impact of these crimes
       on the victims, the fact that his victims were also Air Force



                                      32
                   United States v. Condon, No. ACM 38765


       members, his status as an AFOSI agent at the times of the
       crimes, and his status as an NCO.
(Emphasis added).
    In his brief on the specified issue, Appellant concedes some of the offenses
of which he was convicted involved, in some way, his status or position as an
AFOSI agent. However, given most of his offenses, including the assaultive
conduct, were not connected or directly related to his duties as an AFOSI
agent, Appellant suggests the military judge’s instruction should have specif-
ically limited the use of his duty status to only certain offenses. In so arguing,
Appellant acknowledges the Defense did not ask for a tailored instruction
which limited the panel’s consideration of this information.
    A military judge is required to give the court members appropriate in-
structions on sentencing. R.C.M. 1005(a); see also United States v. Wheeler,
38 C.M.R. 72, 74–75 (C.M.A. 1967) (“[T]his Court has always insisted the
members be furnished with adequate guidance regarding the exercise of their
discretion in reaching an appropriate punishment.”). The instructions must
include a “statement that the members should consider all matters in exten-
uation, mitigation, and aggravation, whether introduced before or after find-
ings.” R.C.M. 1005(e)(5). We review a military judge’s decision to give a sen-
tencing instruction for an abuse of discretion. United States v. Hopkins, 56
M.J. 393, 395 (C.A.A.F. 2002).
    R.C.M. 1001(b)(4) provides that any aggravating circumstances “directly
relating to or resulting from the offenses of which the accused has been found
guilty” can constitute aggravation evidence. This court has repeatedly held
that an accused’s duty position, without something more, cannot be consid-
ered as a matter in aggravation to increase a sentence. See United States v.
Bobby, 61 M.J. 750 (A.F. Ct. Crim. App. 2005); United States v. Collins, 3
M.J. 518 (A.F.C.M.R. 1977), aff’d, 6 M.J. 256 (C.M.A. 1979). However, when
the record demonstrates some “reasonable linkage or manner in which the
offense was facilitated by the duty position or the duty position was somehow
compromised by the offense,” a service member’s duty position can be consid-
ered as evidence in aggravation. Bobby, 61 M.J. at 755. Whether or not a cir-
cumstance is directly related to or results from the offenses calls for consid-
ered judgment by the military judge, and is not to be overturned lightly.
United States v. Wilson, 47 M.J. 152, 155 (C.A.A.F. 1997) (citing United
States v. Jones, 44 M.J. 103, 104–05 (C.A.A.F. 1996)).
    The military judge’s ruling as documented above is unclear regarding the
legal test he applied in ruling for the Government. On one hand, the ruling
suggests that if duty status is connected to at least one charged offense, a
broad instruction that allows for the consideration of duty status for all of-
fenses is authorized. Conversely, based on the Government’s proffer, one

                                       33
                   United States v. Condon, No. ACM 38765


could read the military judge’s ruling as requiring “linkage” to all of the
charged offenses before issuing the broad instruction as was given in this
case. We hold that the latter analysis is the correct interpretation of the law.
See, e.g., United States v. Barnett, 70 M.J. 568, 572 (A.F. Ct. Crim. App.
2011), aff’d, 71 M.J. 248 (C.A.A.F. 2012) (noting that military judges have a
duty during sentencing to tailor instructions to the members based on the
law and the evidence); R.C.M. 1005(a), Discussion. As such, to the extent the
military judge did not find all of the offenses were connected to Appellant’s
duty status, he erred by not tailoring an instruction to the members on the
appropriate use of this evidence for aggravation.
    As Appellant conceded in his brief, his dereliction of duty and obstruction
of justice offenses were facilitated by his duty position or his duty position
was somehow compromised by the offenses. Thus, our analysis must only ex-
amine the offenses involving Appellant’s two victims, A1C ML and SA AD.
We find, based on our independent review of this case, that there was suffi-
cient evidence before the military judge to merit a broad duty status instruc-
tion encompassing all of Appellant’s charged offenses. Appellant’s status as
an AFOSI agent was interwoven with aspects of the offenses involving both of
these victims.
    With regard to A1C ML, she testified her initial reluctance to file an un-
restricted report of sexual assault was due to her concerns about Appellant’s
status as an AFOSI agent. A1C ML also testified regarding an incident a few
days prior to the charged sexual assault where Appellant threatened to end
her military career if she left him. Appellant, in an attempt to give credibility
to this threat, informed A1C ML that he knew everyone on base––
presumably because of his position as an AFOSI agent. Appellant’s efforts to
use his position to influence A1C ML’s reporting provides the sufficient link-
age necessary to list Appellant’s duty status as a matter in aggravation as it
applies to the offenses involving A1C ML.
    As to SA AD, we also find a sufficient connection to support the instruc-
tion as given by this military judge. Appellant had been SA AD’s supervisor
within AFOSI, and it was a fair inference their sexual relationship originated
from their professional working relationship. See United States v. Alis, 47
M.J. 817, 826 (A.F. Ct. Crim. App. 1998) (finding ample evidence a staff judge
advocate’s on-duty position facilitated an inappropriate off-duty relationship
with a subordinate). SA AD testified she eventually told Appellant she was
only staying in the relationship with him because she knew he would make
her professional life difficult if she discontinued it. At some point in their re-
lationship, Appellant threatened to expose SA AD’s mishandling of a confi-
dential source. Although this threat was not directly connected to Appellant’s
crimes against SA AD, it is evidence of Appellant using his duty position in



                                       34
                  United States v. Condon, No. ACM 38765


an attempt to control the victim’s behavior, including her willingness to
maintain an abusive relationship with Appellant or to report his misconduct.
    Appellant also implied that he could hurt SA AD’s career if she provided
information after he came under investigation for sexual assault. Specifically,
Appellant informed SA AD that he had “dirt” on everybody and that she
would be smart not to say anything. In doing so, Appellant implied SA AD
would suffer negative consequences if she cooperated with authorities. Appel-
lant also was convicted of placing a marksmanship sighting target on SA
AD’s residence doorstep in an attempt to threaten her or intimidate her from
reporting his misconduct. As with Appellant’s expressions to ruin SA AD’s
professional reputation, his efforts to influence her cooperation with law en-
forcement further bring into relevance his duty status as an AFOSI agent.
Given our belief Appellant’s offenses involving his two victims were suffi-
ciently facilitated by his duty position, we find the challenged instruction was
not erroneous.
   2. Improper Sentencing Argument: “Higher Standard”
   Because of our determination regarding the use of Appellant’s duty status
as evidence in aggravation, we look at the Government’s “higher standard”
argument through a different lens than that of the dissent below. While we
agree the Government’s argument was improper, we do not subscribe to the
overarching concerns raised by the dissent when examining the level of prej-
udice derived from this argument.
   Improper argument involves a question of law that this court reviews de
novo. Sewell, 2017 CAAF LEXIS 59, at *10. “The legal test for improper ar-
gument is whether the argument was erroneous and whether it materially
prejudiced the substantial rights of the accused.” Baer, 53 M.J. at 237.
    Trial counsel is entitled “to argue the evidence of record, as well as all
reasonable inferences fairly derived from such evidence.” Id. However, it is
error for trial counsel to make arguments that “‘unduly . . . inflame the pas-
sions or prejudices of the court members.’” Marsh, 70 M.J. at 102 (alteration
in original) (quoting Schroder, 65 M.J. at 58); R.C.M. 919(b) Discussion.
    Here, trial counsel’s use of Appellant’s duty status during argument ex-
ceeded what is authorized as a matter in aggravation. Instead of limiting
comments to how Appellant used his AFOSI training, expertise, and position
to facilitate his misconduct or manipulate his victims, trial counsel argued
that the members should hold Appellant to a “higher standard” because
“when he became an OSI agent he agreed to a code above our core values.”
   This argument was improper. We have never held that an accused could
be punished more harshly solely because of the nature of his official duties or
military position. This portion of trial counsel’s sentencing argument focused


                                      35
                  United States v. Condon, No. ACM 38765


on Appellant’s duty status as an aggravating factor without adequately con-
necting the position to the specific offenses before the members. Consequent-
ly, it was improper for trial counsel to argue Appellant should be held to
higher standards simply because of his assigned career field.
    Improper sentencing argument does not, however, automatically warrant
relief. Relief will be granted only if the trial counsel’s misconduct “actually
impacted on a substantial right of an accused (i.e., resulted in prejudice).”
Fletcher, 62 M.J. at 178. Reversal is only appropriate in this setting if “the
trial counsel’s comments, taken as a whole, ‘were so damaging that we cannot
be confident that [the appellant] was sentenced on the basis of the evidence
alone.’” United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014) (quoting Unit-
ed States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013)).
    We balance three factors to assess whether improper argument has re-
sulted in prejudice: “(1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the weight of the evidence supporting
the conviction[s].” Sewell, 2017 CAAF LEXIS 59, at *11 (quoting Fletcher, 62
M.J. at 184); Halpin, 71 M.J. at 480 (extending the Fletcher test to improper
sentencing argument).
    Contrary to the dissent, we find Appellant was not prejudiced by this ar-
gument. In examining the severity of the error, we note the two “higher
standard” references constituted a relatively small portion of a 16-plus page
argument. The vast majority of the argument properly focused on matters in
aggravation, including Appellant’s use of his position, knowledge, and exper-
tise as an AFOSI agent to facilitate his criminal activity. Moreover, contrary
to the general concerns raised by the dissent below, trial counsel made no at-
tempt to validate or reinforce his limited “higher standard” argument by link-
ing the argument to the military judge’s sentencing instructions. Trial coun-
sel also invoked Appellant’s knowledge of sexual assault offenses as an inves-
tigator to argue he was keenly aware of legal boundaries, but was still not
deterred from committing the crimes he was convicted of in this case. We find
these arguments appropriate as they directly related Appellant’s duty status
to his individual crimes. Finally, in arguing for specific punishments, trial
counsel argued Appellant should be reduced in rank to show “that OSI agents
are to be held to the same standard as every other Airmen.” Restricting this
argument to whether Appellant should be reduced in rank—and that he
should be held to the same standard as opposed to a higher one—reduces the
severity of the misconduct. Overall, the relatively few and isolated improper
comments weigh heavily against finding prejudice.
    As to the second prong, the military judge did not provide a sua sponte
correction or a limiting instruction for the portion of the argument we have
identified as improper. This omission is not surprising given the Defense’s


                                      36
                  United States v. Condon, No. ACM 38765


objection to the argument was based on facts not in evidence. Still, this factor
slightly favors a finding of prejudice.
    As to the final prong, we find that the weight of the evidence supports the
sentence imposed. Appellant’s crimes were egregious. They involved multiple
victims and documented a desire by Appellant for control and dominance.
The Government argued the members should impose a sentence of at least 40
years of confinement, reduction to E-1, total forfeitures, and a dishonorable
discharge. The Defense, on the other hand, countered that the members
should impose no more than five years of confinement. The members eventu-
ally imposed a sentence of 30 years of confinement.
   We recognize that, while Appellant’s criminal conduct was substantial,
the adjudged punishment in this case was toward the higher range of pun-
ishments seen for similar allegations with similar facts and circumstances.
Nevertheless, it was within the range of punishments seen and again, given
the circumstances of this case, the evidence supported the higher-end pun-
ishment. Overall, we find this factor weighs against a finding of prejudice.
    After considering the Fletcher factors together and all facts and circum-
stances of this case, we find Appellant was not prejudiced by the Govern-
ment’s improper sentencing argument that suggested Appellant be held to a
“higher standard” simply because of his status as an AFOSI agent.
   3. Other Improper Sentencing Argument
    In addition to the question specified by the court, Appellant also chal-
lenged other portions of the Government’s sentencing argument. Specifically,
Appellant asserts trial counsel erred in arguing Appellant’s lies to investiga-
tors were evidence of his lack of remorse, as well as suggesting the members
should sentence Appellant more harshly because he exercised his right to tri-
al and to confront witnesses against him. Appellant did not object at trial to
these specific comments. We find that, in the context of the entire argument,
those portions challenged by Appellant were not error, and, even assuming
error, were neither clear nor obvious.
    On one occasion during its lengthy sentencing argument, the Government
argued that Appellant “has shown no remorse. When he was given the oppor-
tunity to come clean in his subject interview he lied.” As this pertained to the
offenses on which Appellant was convicted, and it was admitted in sentenc-
ing, the members were permitted to consider it for any appropriate purpose.
See R.C.M. 1001(f)(2). Our superior court has held that “other evidence in the
record may . . . give rise to the inference that an accused is not remorseful,
but the inference may not be drawn from his decision not to testify or from
his pleas of not guilty.” United States v. Paxton, 64 M.J. 484, 487 (C.A.A.F.
2007). Appellant’s lack of remorse is relevant to his rehabilitation potential.


                                      37
                   United States v. Condon, No. ACM 38765


    Appellant also alleges that trial counsel inappropriately argued that the
members should punish Appellant more severely for exercising his right to
trial and his right to confront the witnesses against him. As to SA AD, Appel-
lant asserts the following portion of the argument constituted plain error:
       [SA AD] was ordered to be here. She didn’t want to testify
       against him. She didn’t want to testify against him, despite his
       depravity, despite his utter disregard for her and everything
       that she is, everything she stands for, everything she believes
       in. She cares for him. She didn’t want to hurt him because she
       has empathy, even for him.
           Her phone was seized, her motives were questioned, she
       was forced to relive one of the worst experiences of her life over
       and over and over again for co-workers, for her headquarters,
       for government prosecutors and defense attorneys, and for you.
       And you recognized that the crimes he perpetrated against her
       were just that, crimes. Morally[ ] reprehensible acts that socie-
       ty condemns. Make your sentence match it. Make it worth the
       trauma she has had to go through at his hands. Confine him
       for at least 40 years so that she understands that you under-
       stand that the Air Force understands her pain. Make her un-
       derstand that everyone in this uniform understands that what
       he did to her was one of the hardest experiences she has ever
       gone through in her life.
    Later in the argument, after discussing aggravating aspects of the sexual
offenses against the other victim, the Government argued:
       [A1C ML] went through what is probably the worst experience
       of her life on the 4th of September and then she went through
       the second worst one the next day when she was having her
       SAFE kit completed. And she has had to relive it every time
       she has stepped into this courtroom, every time she has met
       with the defense counsel or the trial counsel, every time she
       has sat in the room with the man who brutalized her.
    It is permitted in certain circumstances for the Government to elicit lim-
ited testimony in sentencing about the negative impact of the trial proceed-
ings on the victim. See United States v. Stephens, 67 M.J. 233, 236 (C.A.A.F.
2009) (“[T]here was no explicit comment by the trial counsel or the father
concerning Appellant’s invocation of his rights but rather, a brief reference to
the effect of the entire process (including, but not limited to, the trial) on Ap-
pellant’s victim.”). In determining whether an argument crosses the line from
permissible to impermissible, it is critical to consider the comments within
the context of the entire argument.

                                       38
                  United States v. Condon, No. ACM 38765


   After examining the entire sentencing argument, we conclude the Gov-
ernment’s argument neither had the intent, nor the effect, of suggesting that
Appellant should be punished for exercising his constitutional rights. This
conclusion is strengthened by the Defense’s lack of objection. The Defense
was engaged throughout the trial, to include objecting to other portions of the
Government’s argument. As such, the Defense’s silence speaks volumes, es-
pecially considering these now challenged statements were brief and buried
within a lengthy argument that otherwise emphasized the severity of the
crimes and surrounding facts and circumstances of those crimes. For these
reasons, we reject this assignment of error.
I. Sentence Appropriateness
   Pursuant to Grostefon, 12 M.J. 431, Appellant argues that his sentence
was inappropriately severe. We disagree.
    This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fenses, the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exer-
cises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
   Among other offenses, Appellant was convicted of two separate sexual as-
saults of two different victims within days of one another. One of his victims,
A1C ML, recounted thinking she was going to die during the attack. More-
over, in addition to sexually assaulting SA AD, Appellant also threatened her
career and stalked her, to include leaving a weapons target with bullet holes
through it on her doorstep.
    We also note the maximum punishment in Appellant’s case included life
in prison. The adjudged sentence of 30 years of confinement was less than the
maximum, and even 10 years less than that argued by the Government.
    We have given individualized consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other mat-
ters contained in the record of trial. We find that the approved sentence of
dishonorable discharge, 30 years of confinement, forfeiture of all pay and al-
lowances, and reduction to E-1 was within the discretion of the panel and the
convening authority, was legally appropriate based on the facts and circum-
stances of this particular case, and was not inappropriately severe.
J. Timely Appellate Review
   We note that Appellant’s case was docketed with this court on 26 Febru-
ary 2015, meaning more than 30 months have passed between docketing and

                                      39
                   United States v. Condon, No. ACM 38765


this opinion. We review de novo claims that an appellant was denied his due
process right to a speedy post-trial review and appeal. Moreno, 63 M.J. at
135. When appellate review is not completed within 18 months, such a delay
is presumptively unreasonable and triggers an analysis of the four factors
laid out in Barker v. Wingo, 407 U.S. 514 (1972). See United States v. Arriaga,
70 M.J. 51, 55 (C.A.A.F. 2011). Those factors are: (1) the length of the delay,
(2) the reasons for the delay, (3) Appellant’s assertion of the right to timely
review and appeal, and (4) prejudice. Moreno, 63 M.J. at 135.
    Having analyzed these factors, we find the delay in rendering this opinion
does not constitute a due process violation. Appellant had not asserted his
right to timely review until very late in the appellate process. 14 Regarding the
reasons for the delay, this case involved unusually voluminous and complex
issues. The transcript consisted of 1,851 pages and the record of trial filled 30
volumes. The appellate record itself consumes an entire volume. Appellant’s
submissions, raising a total of 21 issues, were not filed with the court until 22
February 2016, 12 months after the case was docketed. Because Appellant
raised issues of ineffective assistance of counsel, this court required affidavits
from the trial defense counsel. The Government’s filed its answer on 3 June
2016. Appellant filed his reply on 1 July 2016. After reviewing the briefs and
the entire record of trial, this court specified another issue for briefing. Those
briefs were not filed until 31 August 2016.
    There has also been no prejudice to Appellant because of the delay. The
extended briefing schedule allowed this court to fully review Appellant’s as-
signments of error and specify an additional issue. When there is no showing
of prejudice under the fourth factor, “we will find a due process violation only
when, in balancing the other three factors, the delay is so egregious that tol-
erating it would adversely affect the public’s perception of the fairness and
integrity of the military justice system.” United States v. Toohey, 63 M.J. 353,
362 (C.A.A.F. 2006). That is not the case here.
   Therefore, Appellant is not entitled to relief based on the fact that more
than 18 months elapsed after docketing until today’s opinion. We have also
considered whether Appellant is due relief under United States v. Tardif, 57
M.J. 219, 223–24 (C.A.A.F. 2002). Applying the factors set out in United
States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264
(C.A.A.F. 2016), we find Appellant is not entitled to relief.



14Appellant first raised the issue of timely appellate processing in a supplemental
assignment of error filed on 6 March 2017 pursuant to Grostefon, 12 M.J. 431. We
granted the motion and considered Appellant’s arguments therein.




                                        40
                  United States v. Condon, No. ACM 38765


                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of the appellant oc-
curred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accord-
ingly, the findings and the sentence are AFFIRMED.


J. BROWN, Senior Judge (concurring in part and dissenting in part):
    I join my esteemed colleagues in all but their conclusion that Appellant
was not prejudiced by the Government’s status-based sentencing argument
and that, under the facts of this case, the military judge’s instruction regard-
ing Appellant’s duty position did not constitute error. I instead conclude that
trial counsel’s improper argument prejudiced Appellant and the military
judge’s incomplete and misleading instruction reinforced trial counsel’s
flawed argument and exacerbated the prejudice to Appellant from that ar-
gument. Accordingly, I would set aside the sentence and authorize a rehear-
ing.
    This court has long cautioned practitioners of the danger inherent in ar-
guing duty status as an aggravating factor in sentencing. We have repeatedly
held that an accused’s professional duties were a matter in aggravation only
when they directly related to the offenses of which the accused has been
found guilty. See United States v. Bobby, 61 M.J. 750, 755–56 (A.F. Ct. Crim.
App. 2005) (finding military judge erred by considering accused’s status as F-
117 crew chief as aggravating factor in drug case); United States v. Grun-
inger, 30 M.J. 1142, 1143 (A.F.C.M.R. 1990) (holding aircraft maintenance
duty was not an aggravator in drug case); United States v. Moore, 6 M.J. 661,
663 (A.F.C.M.R. 1978) (finding error for trial counsel to argue an accused’s
job as a medical technician as an aggravator in drug case); United States v.
Collins, 3 M.J. 518, 520–21 (A.F.C.M.R. 1977) (holding it was improper to ar-
gue that security forces member violated a trust through drug use where the
crime was not facilitated by the duty status).
    This principle was first set forth and discussed by this court in Collins.
There, we found error in trial counsel’s attempt to connect the accused’s duty
position with the charged drug offense. In his presentencing argument, the
trial counsel stated:
       Airman Collins, in setting up the sale by establishing the price,
       quantity, the time and the place, violated basically a trust he
       has with this base. He was in security. It was his responsibility
       to protect the most lethal weapons which we have in our arse-
       nal. This is someone who is supposed to be protecting them.



                                      41
                  United States v. Condon, No. ACM 38765


       And the day before he starts his duties in the [Security Alert
       Team], he sells LSD.
Collins, 3 M.J. at 519 (alteration in original). Despite Collins being assigned
to security forces and also selling drugs, we held there was nothing in evi-
dence to suggest that his duty position was connected to the offense commit-
ted. There was, therefore, no legitimate inference that Collins’s misconduct
violated a special trust. The court explained:
       His sale of LSD was in no demonstrable way facilitated by his
       status, nor was there any evidence that he abused such status
       in committing the offense. In short, the trial counsel had no
       justifiable basis for his argument that the accused’s member-
       ship in the security police unit (as opposed to any other organi-
       zation) was an aggravating circumstance.
Id. at 520–21. This rationale was later summarized as: “[O]ne’s duty position,
without linkage to the commission of the offense, is not proper evidence in
aggravation for consideration by the members during sentencing delibera-
tions.” United States v. Rhodes, 64 M.J. 630, 631 (A.F. Ct. Crim. App. 2007),
aff’d, 64 M.J. 630 (C.A.A.F. 2007). Accordingly, a trial counsel’s argument
that an accused should be held to a higher standard based upon their duty
position, or a suggestion that they should be punished more harshly solely
because of their position, is an argument fraught with danger.
    As to these general principles, the majority does not question, and I join
them in their conclusion that the portion of the Government’s sentencing ar-
gument that asserted Appellant should be held to a higher standard because
of his duty position was error. Unlike the majority, however, I conclude that
the improper argument prejudiced Appellant. The insufficient measures to
cure the error, as well as the weight of the evidence supporting the sentence,
support my conclusion of prejudice.
    Measures to Cure the Error: The military judge overruled the Defense’s
objection and permitted the Government’s duty status/higher standard ar-
gument. This alone was problematic in the context of this case. What propels
this case even further toward prejudice was the military judge’s subsequent
sentencing instructions to the members. The military judge magnified the
impact of this erroneous argument with a misleading and incomplete instruc-
tion advising the members simply, in a conclusory manner, that Appellant’s
duty position was an aggravating factor. This omitted further instruction
that Appellant’s sentence could not be increased solely because of his duty
position (something that the Government effectively argued) or that they
could only consider his duty status to the extent that they determine Appel-
lant used or facilitated his position to commit a particular crime (a limitation
on how duty position can be used).

                                      42
                    United States v. Condon, No. ACM 38765


    This sentencing instruction was done under the auspices of the require-
ment that military judges provide additional guidance to members so they
have sufficient guidance in determining an appropriate sentence. In United
States v. Wheeler, 38 C.M.R. 72, 74–75 (C.M.A. 1967), our superior court first
considered the necessity of providing sufficient guidance to members in sen-
tencing. There, the military judge had merely instructed on the maximum
sentence without advising the members about mitigation and extenuating
evidence, the possibility of a punishment less than the maximum, or the ef-
fect of a guilty plea. Id. at 74. The court, however, was wary of the vast dis-
cretion for sentencing vested in court members, a discretion unlike that found
with civilian juries. 15 In Wheeler, the court concluded that the mere recitation
of the maximum punishment neither highlighted for the panel that they had
the authority to provide less than the maximum punishment, nor did it ad-
vise them that they should consider mitigating, extenuating, and aggravating
circumstances in reaching an appropriate punishment. Id. at 76–77.
    This court revisited this issue in United States v. Hopkins, and recognized
that, rather than providing a laundry list of facts the members should con-
sider, it was instead preferable to provide more generalized guidance to the
members and then allow counsel to argue the significance of the facts and
whether those facts should be considered as mitigating, extenuating, or ag-
gravating. 55 M.J. 546, 550 (A.F. Ct. Crim. App. 2001), aff’d, 56 M.J. 393
(C.A.A.F. 2002). As we explained then, “[i]t is the duty of the counsel at trial
to bring to the attention of the court members, through their arguments, any
aggravating, mitigating, or extenuating factors.” Id. Consequently, Hopkins
suggested, in non-capital cases, the following instruction:
       In determining the sentence, you should consider all the facts
       and circumstances of the offense(s) of which the accused has
       been convicted and all matters concerning the accused (wheth-
       er presented before or after findings). Thus, you should consid-
       er the accused’s background, his/her character, his/her service
       record, (his/her combat record,) all matters in extenuation and
       mitigation, and any other evidence he/she presented. You
       should also consider any matters in aggravation.
Id. (Emphasis added). As the Hopkins instruction avoided highlighting par-
ticular case-specific facts, it avoided the potential appearance of a military
judge expressing an opinion as to whether, and to what extent, the members

15In the case before us, for example, members with little criminal or military justice
experience were authorized to impose a punishment that ranged anywhere from no
punishment to confinement for life without the possibility of parole.




                                         43
                    United States v. Condon, No. ACM 38765


should characterize certain facts as either favorable to the Government or to
the accused. That was instead left to the advocacy of counsel.
    In this case, unfortunately, the military judge inadvertently magnified
trial counsel’s error when he modified the Hopkins instruction to include a
list of specific facts that the military judge found aggravating in this case. 16
His laundry list to the members included Appellant’s “status as an AFOSI
agent at the times of the crimes.”
    As this court has previously made clear, it is permissible for counsel to
argue duty status in only a very limited manner where the commission of the
crime is sufficiently tied to the accused’s duty status. This is to minimize the
likelihood that the members misuse this information and punish an accused
solely because of his duty title or position. This concern is not at all mini-
mized, however, where the military judge chooses to advise the members that
duty position is an aggravating factor without properly advising the members
on the limits of that use. 17
    I find that this instruction reinforced trial counsel’s erroneous duty-
status/higher-standard argument by suggesting that it was not only permis-
sible, but that the members should consider Appellant’s duty position, with-
out limitation or reservation, as an aggravating factor for sentencing. Though
there was no requirement for the military judge to identify any particular
fact as aggravating, if he chose to do so, he was under an obligation to fully
and completely advise the members of the limitations on how this evidence
could be used by them. Cf. United States v. Wallace, 13 M.J. 278, 282 (C.M.A.
1982) (finding that though an accused lying under oath is probative to his po-
tential rehabilitation, the military judge must properly instruct the members
on the appropriate use of this evidence—namely that the members may only
consider it if they determine the accused made a willful and intentional lie—


16It does not appear from the record that either Appellant or the Government re-
quested that the military judge highlight any particular facts in his instructions. The
military judge sua sponte presented his proposed instruction to counsel prior to their
argument, and the military judge subsequently provided, over Defense objection, the
judge’s draft instruction to the members after argument.
17 Much of this could have been avoided, and any prejudice minimized, had the mili-
tary judge refrained from setting forth specific facts that he personally believed con-
stituted aggravating factors. A better approach is the one we previously set forth in
Hopkins, where we recognized that it was preferable for counsel—rather than the
military judge—to argue to the finder of fact the significance of the different factors
present in a particular case and whether those factors constituted aggravating, miti-
gating, or extenuating evidence.




                                          44
                      United States v. Condon, No. ACM 38765


and even then, they must only consider it to the extent it is relevant to the
accused’s rehabilitative potential; the members should be specifically in-
structed that, under no circumstances, are they authorized to mete out addi-
tional punishment for the accused’s lie). As this court has previously noted,
“the prohibition against using an accused’s duty position to increase a sen-
tence is so well established in Air Force trial practice that it is tantamount to
black letter law.” Rhodes, 64 M.J. at 631. As the military judge failed to suffi-
ciently tailor his modified instruction, he further reinforced and validated the
Government’s erroneous “higher standard” argument.
    Under the unique facts and circumstances of this case, where trial counsel
previously made an improper argument suggesting that Appellant should be
held to a higher standard because of his status as an AFOSI agent, the mili-
tary judge’s subsequent instruction to the members that they should consider
Appellant’s status as an AFOSI agent as an aggravating factor, both rein-
forced this erroneous argument and suggested to the members that Appel-
lant’s duty status as an agent was a proper basis to enhance or increase an
otherwise appropriate punishment. Merely listing “his status as an AFOSI
agent at the times of the crimes” as an aggravating factor was insufficient
and misleading in the context of this case. With the military judge’s instruc-
tion in this case, a reviewing court has no assurances that the members used
this factor in an appropriate manner. 18
   Weight of the Evidence: As to the weight of the evidence, I do not share
the majority’s confidence that it weighs heavily against prejudice. While rec-
ognizing that Appellant’s criminal conduct was substantial, I also recognize
that there were significant extenuating circumstances in this case. For ex-
ample, as to the sexual assault of SA AD, there was evidence presented that


18   The following instruction would have minimized the impact of the Government’s
status-based argument: “The evidence presented (and the sentencing argument of
trial counsel) raised the question of whether the accused’s duty status or official posi-
tion is matter in aggravation (for the offense(s) of__________). You are instructed that
you may only consider this issue as a matter in aggravation insofar as you conclude
that the accused’s duty status or official position facilitated commission of the of-
fense(s) or was otherwise directly linked to the offense(s). Absent this direct linkage
to the offense(s), the duty status or official position of the accused is not a proper
matter in aggravation. To the extent that you find a direct linkage to the offense(s),
you may not mete out additional punishment solely based on the accused’s duty sta-
tus or official position.”




                                           45
                   United States v. Condon, No. ACM 38765


would suggest that, while it may have been an unreasonable belief, Appellant
may have personally believed that SA AD consented to the sexual contact.
Further, as to the sexual offenses perpetrated against A1C ML, Appellant
and A1C ML were involved in a consensual dominant/submissive sexual rela-
tionship that incorporated aspects of bondage and physical control. Although
Appellant’s crimes against A1C ML—on this one evening—went significantly
beyond their prior dominant/submissive sexual relationship, it still could be
considered by the members as mitigating. Ultimately, the members imposed
a sentence of 30 years of confinement, a reduction to E-1, total forfeitures,
and a dishonorable discharge. Considering all of the facts and circumstances
of these offenses, I am not convinced that the adjudged punishment in this
case was not improperly increased because of an improper desire to punish
Appellant more severely because he was an AFOSI agent and because of trial
counsel’s arguments to hold him to a higher standard.
    For these reasons, after considering the facts and circumstances of this
case, I am persuaded that Appellant was prejudiced by the Government’s im-
proper sentencing argument that suggested, in part, that Appellant should be
punished more harshly because of his status as an AFOSI agent and the
“higher standards” that purportedly accompany that position. The military
judge’s decision to both overrule the objection without sufficient instruction to
the members, and his later decision to advise the members that they should
consider his status as an agent as an aggravating factor increased the proba-
bility that the members inappropriately increased Appellant’s sentence based
upon that improper argument. The severe sentence adjudged by the members
further reinforces this conclusion. Accordingly, I conclude that this portion of
trial counsel’s sentencing argument materially prejudiced a substantial right
of Appellant. As such, I would set aside the sentence and authorize a rehear-
ing on the sentence.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




                                       46
