         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201500400
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                      RIGO J. BETANCOURT
                   Sergeant (E-5), U.S. Marine Corps
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judge: Lieutenant Colonel Elizabeth A. Harvey, USMC.
 Convening Authority: Commanding General, 1st Marine Division ,
                       Camp Pendleton, CA.
Staff Judge Advocate’s Recommendation: Lieutenant Colonel Devin
                        C. Young, USMC.
    For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.
For Appellee: Lieutenant Commander Jeremy Brooks, JAGC, USN;
      Lieutenant Commander Justin Henderson, JAGC, USN.
                     _________________________

                           Decided 6 June 2017
                         _________________________

Before C AMPBELL , R UGH , AND H UTCHISON , Appellate Military Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   RUGH, Judge:
   A panel of officer and enlisted members sitting as a general court-martial
convicted the appellant, contrary to his pleas, of one specification of
aggravated sexual contact and two specifications of assault consummated by
                    United States v. Betancourt, No. 201500400


a battery in violation of Articles 120 and 128, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920 and 928 (2012).1
    The military judge also convicted the appellant, pursuant to his pleas, of
one specification of conspiracy to commit assault, two specifications of
violating a lawful general order, two specifications of signing a false record,
one specification of cocaine use, one specification of possession of cocaine
with intent to distribute, one specification of possession of methamphetamine
with intent to distribute, one specification of larceny, one specification of
forgery, and one specification of assault consummated by a battery in
violation of Articles 81, 92, 107, 112a, 121, 123, and 128, UCMJ; 10 U.S.C. §§
881, 892, 907, 912a, 921, 923, and 928 (2012).
   The members sentenced the appellant to five years’ confinement,
reduction to pay grade E-1, total forfeiture of pay and allowances, and a
dishonorable discharge. The convening authority approved the sentence as
adjudged and, except for the dishonorable discharge, ordered the sentence
executed.
    The appellant asserts seven assignments of error (AOE): (1) that the
evidence of the appellant’s convictions for assault consummated by a battery
and aggravated sexual contact was factually insufficient; (2) that the military
judge abused her discretion in failing to suppress evidence derived from the
search of the appellant’s cell phone; (3) that the military judge abused her
discretion in admitting evidence under MILITARY RULE OF EVIDENCE (MIL. R.
EVID.) 404(b), SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.); (4) that a command authorized search of the defense
counsel offices amounted to unlawful command influence; (5) that the search
also amounted to prosecutorial misconduct; (6) that the military judge
violated the appellant’s right to counsel under the Sixth Amendment to the
Constitution by disqualifying his original trial defense counsel and
compelling them to testify against him at trial; and (7) that the promulgating
order does not accurately reflect the court-martial’s findings.2
   After weighing all the evidence in the record of trial and recognizing that
we did not see or hear the witnesses as did the trial court, this court is
convinced of the appellant’s guilt beyond reasonable doubt. United States v.


   1 After findings, the military judge dismissed one specification of assault
consummated by battery as multiplicious. Record at 1706.
   2  In a supplemental AOE, the appellant argued the military judge erred in
instructing the members regarding reasonable doubt. In accordance with the holding
in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017), we summarily reject the
supplemental assignment of error. United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A.
1992).


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                   United States v. Betancourt, No. 201500400


Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006) (citing United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987) and Art. 66(c), UCMJ)), aff'd on other
grounds, 64 M.J. 348 (C.A.A.F. 2007). Additionally, having carefully
considered the record of trial, the pleadings, and oral argument on the
second, fourth, and fifth AOE, we find no error materially prejudicial to a
substantial right of the appellant and affirm.
                               I. BACKGROUND
   In July 2013, to cope with what he alleged was a close friend’s death, the
appellant joined a Southern California criminal motorcycle gang. During the
process of first pledging then fully joining the gang, the appellant embarked
on a course of reckless and criminal behavior. He began using cocaine with
his then-girlfriend, Ms. MR. He acquired quantities of cocaine and
methamphetamines, which he weighed and bagged for distribution to other
gang members and “hangers-on.”3 He tattooed a swastika on his stomach,
and publicly wore the accoutrements–the clothing, badges, and other
symbols–of the criminal motorcycle gang. Additionally, he defrauded the
government of basic allowance for housing (BAH) after he was divorced.
    Marine Corps Criminal Investigative Division (CID) first learned of the
appellant’s offenses in December 2013 after he provided a positive urinalysis
for cocaine. The investigation then expanded to include his affiliation with
the criminal motorcycle gang and his other acts.
    On 29 January 2014, the appellant conspired with a fellow gang member,
First Sergeant Charles Reynolds, U.S. Marine Corps, to assault a gunnery
sergeant because he believed the gunnery sergeant was attempting to pursue
his girlfriend, Ms. HK. After the girlfriend tricked the gunnery sergeant into
meeting at a local bar, the two men traveled to the bar where they surprised
the gunnery sergeant and beat him.
    In early March 2014 Ms. MR, who was now no longer the appellant’s
girlfriend, contacted a CID agent claiming to have information about the
appellant’s use of cocaine and his fraudulent claim to BAH. During follow-up
interviews with agents, Ms. MR also provided information on the appellant’s
participation in the criminal motorcycle gang and his related possession of
cocaine and methamphetamines. This included witnessing the appellant with
a scale and small bags used for preparing controlled substances for
distribution and sale.




   3 A term of art used to describe followers of the gang who were not members or
pledges.


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                         United States v. Betancourt, No. 201500400


    On 12 March 2014, after initially describing the appellant’s criminal
activities to CID, Ms. MR contacted the appellant via text message and
bragged to him about what she had done.
             [Text from Ms. MR:] Don’t expect to get anything from here
         either. All your gear won’t be here. I’m getting rid of everything
         that u left here. Should a thought ab what u said to me before
         it [expletive] u worse. I’ll be setting up with cid too. I never
         wanna see u again. I’ll make sure I don’t while you rot away in
         a jail cell at the brig. [Expletive] with the wrong one punk
             [Text from the appellant:] Why are you still texting me . . .
            [Text from Ms. MR:] Ur gonna be sorry u treated me this
         way
            [Text from the appellant:] There is nothing I can do to stop
         you . . . you been black mailing me with this for far to
         long . . . your gonna do it regardless4
   After this exchange, the appellant drove to Ms. MR’s home. Once there,
the appellant and Ms. MR argued about his involvement in the criminal
motorcycle gang. Ms. MR referred to the gang as “a bunch of losers,” enraging
the appellant.5 He attacked Ms. MR, grabbing her by the throat.
             Q [Trial Counsel]: Do you remember how that happened?
             A [Ms. MR]: Honestly, it was just all – I just know he was
         screaming at me and, you know, telling me that this is–you
         know, this had to happen; I did this to myself; I just couldn’t
         keep my mouth shut; and, you know, I don’t talk about his club
         and those types of things.6
   He then grabbed her by her crotch, and stated, “This [Ms. MR’s vagina] is
mine, nobody else’s. This is mine.”7
    After the fight, the appellant left, and Ms. MR called 9-1-1 to report the
assault. The appellant was placed in pretrial confinement on 14 March 2014,
and photos were taken of his tattoos, including the swastika tattoo Ms. MR
had previously described to the CID agent. As a result of the assault, Ms. MR
suffered a hematoma in her vaginal area, requiring surgery, and bruises to
her neck.

   4   Prosecution Exhibit (PE) 24 at 8-9 ([sic] throughout).
   5   Record at 1211.
   6   Id. at 1212.
   7   Id. at 1215.


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                   United States v. Betancourt, No. 201500400


    Ten days after the appellant was placed in the brig, the appellant’s Staff
Non-Commissioned Officer-in-Charge (SNCOIC) contacted the appellant’s
detailed trial defense counsel, First Lieutenant (1stLt) I, with a request from
the appellant–that the SNCOIC pass the appellant’s cell phone over to 1stLt
I to review it for potentially exculpatory text messages involving the assault
on Ms. MR. 1stLt I agreed and took possession of the phone, its blue and
white case, a phone charger, and an extra battery.
    The next day, 25 March 2014, 1stLt I powered on the appellant’s phone
and reviewed the call logs and the text messages between the appellant and
Ms. MR. While reviewing, 1stLt I took several screenshot images of
potentially exculpatory text messages and then exported the images by
connecting the phone to her government computer. During this process, 1stLt
I deleted some of the screenshot images which she took and which were saved
to the appellant’s phone. She then stored the phone in a file cabinet drawer in
her office located onboard Marine Corps Base Camp Pendleton, 22 Area.
While in her possession, the blue and white case remained on the phone.
    On 4 April 2014, 1stLt I filed a motion requesting the appellant’s release
from pretrial confinement. She included some of the screenshot images of the
text messages from the appellant’s phone in that motion. Shortly thereafter,
1stLt F was detailed to the case as an assistant defense counsel.
    Now with knowledge of potentially exculpatory text messages on the
appellant’s phone, CID became interested in locating the phone. The trial
counsel approached 1stLt I, who agreed to provide a copy of the remaining
text messages involving Ms. MR from the phone to the government. At the
time, there was a general consensus among the parties that 1stLt I would be
able to turn over the phone to government agents if or when she was
presented with a command authorization to search and seize the phone. With
the assistance of the trial counsel, the lead CID agent drafted a probable
cause affidavit to be presented to the 22 Area Commander as basis for a
Command Authorized Search and Seizure (CASS). Based on indications that
some of the appellant’s text messages may have been deleted, the lead CID
agent believed that the phone might contain incuplatory evidence and other
incriminating messages, calls, and photos.
    On 30 April 2014, an Article 32, UCMJ, preliminary hearing was held
regarding the allegations against the appellant. 1stLt I again presented the
screenshot images of the text messages as evidence. During the hearing,
1stLt I was informed by her senior defense counsel of the government’s
intention to obtain a CASS for the phone. After the hearing, 1stLt I passed
the phone to her assistant counsel, 1stLt F.
   1stLt F connected the powered-on phone to his government computer and
transferred data from the phone to his computer. For unknown reasons, the

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                      United States v. Betancourt, No. 201500400


phone was also removed from its case. It was then stored in 1stLt F’s locked
desk drawer. The case, the charger, and the spare battery were placed in a
separate desk drawer containing 1stLt F’s personal items.
    On 1 May 2014, the lead CID agent presented an affidavit requesting a
search of “[t]he Defense Section, Legal Service Support Section located on the
second floor of Building [X], MCB CPC, and/or the possession of defense trial
counsels identified as [1stLt I] or [1stLt F]” and “[t]he personal Android
cellular telephone belonging to [the appellant]” to the 22 Area Commander.8
Based on the affidavit and other discussions the Area Commander
determined that probable cause existed to believe that the appellant’s phone
contained evidence of his criminal activity. He then generally reduced this
determination to writing in a CASS authorizing the search.
    Sensitive to the potential issues involved in a search of defense counsel
offices, the Area Commander also contacted the Legal Services Support
Section–West (LSSS) Officer-in-Charge (OIC) to discuss the search. The
LSSS OIC then discussed with the senior trial counsel (STC) the possibility of
a preservation order pending judicial involvement post-referral of charges.
The STC advised that a preservation order would be insufficient if the phone
was remotely accessed when powered on. He also expressed concern that the
phone might be returned to a friend of the appellant and, thereby, lost to the
government.
    That same evening, 1stLt F took the phone out of his office with the
intention of returning the phone to the appellant’s SNCOIC, who first
provided the phone to the defense counsel. The SNCOIC was then to return
the phone to Ms. HK, the appellant’s then-girlfriend. However, instead of
delivering the phone to the SNCOIC or Ms. HK, 1stLt F returned it to his
office.
   That evening and the next day, the LSSS OIC, the STC, the senior
defense counsel, and the Marine Corps Chief Defense Counsel discussed the
potential search of the defense spaces, including the primary concern that
professional rules prevented 1stLt I and 1stLt F from returning the phone
voluntarily. As a result of these discussions, the STC decided against using
search procedures that would protect attorney-client privileged materials,
because he believed the search would not require review of documents within
the defense counsel’s offices.9 Instead, the STC and LSSS OIC agreed to other


   8   Appellate Exhibit (AE) XIII at 51.
   9 This was a belief partially perpetuated by the senior defense counsel’s assertion
that violation of the privilege wasn’t a primary concern in turning over the phone to
government agents.


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                        United States v. Betancourt, No. 201500400


safeguards, including video recording the search and conducting the search in
the presence of the defense counsel. The LSSS OIC was not aware that the
CASS also authorized searching defense counsel offices besides those of 1stLt
I and 1stLt F.
    On 2 May 2014, the STC met with CID agents at the LSSS offices in
preparation for the search. The STC escorted the four agents–three searchers
and one videographer–upstairs to the defense offices, where they requested
the senior defense counsel produce the appellant’s phone. The senior defense
counsel politely declined. The CID agents then began their search in 1stLt I’s
office before moving on to 1stLt F’s office. The agents were professional but
extremely thorough, searching through desk drawers, file cabinets, lockers,
garbage cans, and ceiling tiles. The agents opened case files, but quickly
flipped through the files without pausing to read documents within the files.
Two additional law enforcement officers secured the spaces prohibiting
personnel from leaving during the search.
    In 1stLt F’s office, the agents discovered a phone matching the description
of the appellant’s phone in a desk drawer. In a separate drawer, the agents
found a blue and white phone case, a phone charger, and a spare battery.
1stLt F declined to identify the phone, claiming privilege, and the agents
seized the phone and accessories.
    After searching 1stLt F’s office, the agents continued to search the
defense spaces including the offices of five other defense counsel who were
not connected to the appellant’s case. In all, the search took around two hours
to complete.
    Two weeks after the phone was seized from 1stLt F’s office, a CID agent
made a forensic copy of every file in the appellant’s phone and provided it to a
special taint review officer appointed by the LSSS OIC. The taint review
officer “reviewed all the data from the cell phone,” but only did so to identify
attorney-client “privileged information” contained therein.10 The officer found
no privileged material in his review.
    The agent then reviewed the forensic copy for relevant data and
discovered digital photographs related to the appellant’s membership in the
criminal motorcycle gang in the “images” folder. Several of these photographs
were admitted into evidence.11 The forensic agent also identified several
photographs in the “images” folder suggesting the appellant’s participation in
drug use and drug distribution,12 including one of a “[w]hite powdery

   10   AE XIV at 75.
   11   Record at 1193; PE 14.
   12   Record at 1195-96; PE 16.


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                      United States v. Betancourt, No. 201500400


substance next to some money and a box cutter,”13 and photos of the
appellant with Ms. MR.14 Subsequent lab analysis of the blue and white
phone case revealed cocaine residue.
    In the fallout from the search, the CID agents involved were ordered to
secure the video recording of the search and to not disclose any information
regarding the search until directed to do so by a military judge. The lead CID
agents were removed from further action on the case. The LSSS OIC directed
a taint review, including a review of the video recording, by an independent
investigating officer. The STC was removed from his position, and the trial
counsel was disqualified from any involvement in the appellant’s case. Two
new trial counsel and new CID investigators were assigned to the case from a
Marine Complex Trial Team, a separate chain of command from the Legal
Support Services Team led by the STC.
   Upon motion from the government, the military judge disqualified 1stLt I
and 1stLt F from further representation of the appellant because of a likely
conflict of interest and because they had become necessary witnesses at trial.
    At trial, the appellant pleaded guilty to violating general orders
prohibiting participation in criminal gangs and racist tattoos; use of cocaine
and possession of cocaine and methamphetamines with the intent to
distribute; larceny of BAH and falsifying a form to effect that larceny; forging
false orders to break a residential lease; and conspiracy to assault and
assault and battery of his romantic rival. He also pleaded guilty to falsifying
a brig visitation roster to indicate that Ms. HK, his new girlfriend, was a
family member.
    The appellant pleaded not guilty to the offenses related to the assault of
Ms. MR. The members convicted the appellant of aggravated sexual contact
for grabbing Ms. MR’s vaginal area with physical strength or violence
sufficient to overcome, restrain, or injure her and assault consummated by
battery for strangling Ms. MR with his hands.
                                 II. DISCUSSION
A. Search of the appellant’s cell phone
    “[N]o Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched and the
persons or things to be seized.” U.S. CONST. amend. IV. Evidence obtained in
violation of the Fourth Amendment is generally inadmissible. MIL. R. EVID.
311. “We review a military judge’s ruling on a motion to suppress evidence for


   13   Record at 1195-96.
   14   Record at 1194; PE 15.


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                          United States v. Betancourt, No. 201500400


an abuse of discretion, viewing the evidence in the light most favorable to the
party prevailing below.” United States v. Hoffman, 75 M.J. 120, 124 (C.A.A.F.
2016). We review the military judge’s findings of fact for clear error and
conclusions of law de novo. Id.
    At trial, the military judge denied the appellant’s motion to suppress the
results of the search for, and of, the appellant’s phone.15 The appellant argues
that the military judge abused her discretion because: (1) the “search of the
cell phone data was illegal because the CASS did not authorize it to be
searched;” and, 2) even if it authorized a search, the CASS was overbroad
“because it did not contain any search protocols, nor did it list with
particularity the places to search on [the appellant’s] cell phone[.]”16
    1. Did the CASS authorize a search of the cell phone’s contents?
   The CASS provided that “there is reason to believe that on the person of
and/or on the premises known as” 1stLt I and 1stLt F and the defense
counsel offices, “[t]here is now being concealed certain property,” the
appellant’s “personal cellular telephone,” and that the CID agent is “hereby
authorized to search the person and/or place named for the property specified
and if the property is found to seize it.”17
   The appellant now argues that because the CASS authorized seizing the
phone but did not directly address searching the contents of the phone, any
evidence discovered on the phone—namely photographs and text messages—
must be suppressed. We disagree.
    First, we acknowledge the “unremarkable” conclusion that “cell phones
may not be searched without probable cause and a warrant unless the search
and seizure falls within one of the recognized exceptions to the warrant
requirement.” United States v. Wicks, 73 M.J. 93, 97-99 (C.A.A.F. 2014)
(citations omitted) (suppressing evidence obtained from a cell phone where
the “Government proceeded without a warrant or search authorization” to



    15   AE CLXXIV at 17.
    16 Appellant’s Brief of 29 Jul 2016 at 34. The appellant also argues that the
military judge “failed to address the search of [the appellant’s] cell phone data” in her
ruling. Id. We disagree, given that under the heading “conclusions of law,” the
military judge stated that the search authority “authorized two searches,” one of the
defense spaces for the phone, and one of the phone “to obtain the evidence of the
alleged offenses.” AE CLXXIV at 13-14. “Where a finding of fact is included under the
heading of conclusions of law it will be treated as a factual finding.” Utzinger v.
United States, 432 F.2d 485, 489 (6th Cir. 1970) (citation omitted). In light of the lead
CID agent’s affidavit, discussed infra, these findings of fact are not clearly erroneous.
    17   AE XIII at 64.


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                     United States v. Betancourt, No. 201500400


execute three searches of the contents of the cell phone, including “over
45,000 text messages”).
    Modern cell phones are a door to a house with an infinite number of
rooms, and those rooms can be filled with all of the most personal markers of
our private lives. There are few places so desirous of protection from
government intrusion. As a result, we find that the agents in this case were
required to seek authorization to search based on probable cause before
searching the contents of the appellant’s cell phone. However, in reviewing
the scope of a search authorization that was reduced to writing, we are not
constrained to the four corners of that writing. We may also rely on affidavits,
attachments, and testimony to discern the intent of those seeking and
granting the authorization and to establish the bounds of probable cause.18
    This is similar to the approach taken by our sister court in United States
v. Richards, No. 38346, 2016 CCA LEXIS 285, unpublished op. (A.F. Ct.
Crim. App. 2 May 2016), rev. granted, 76 M.J. 45 (C.A.A.F. 2016).19 In
Richards, the Air Force Court of Criminal Appeals (AFCCA) rejected
Richards’ argument that, because the search authorization only broadly
listed his residence as subject to search and electronic media devices as the
items to be seized, the investigators did not have authorization to search the
contents of the seized devices. Id. at *44-45. The AFCCA noted that “the
affidavit accompanying the written search authorization” and “[t]estimony
from [investigative] agents at trial makes clear they were seeking
authorization to search the devices, not just seize them.” Id. (internal
quotation marks omitted).20
   Here, the lead CID agent twice requested authority to search the
appellant’s “personal Android . . . cellular telephone,” once in the body and
once on the cover sheet (signed by the search authority on both the front and



    18  See United States v. Allen, 53 M.J. 402, 404, 407-08 (C.A.A.F. 2000) (noting
that where a “warrant . . . authorized only a search of appellant’s residence” for child
pornography, the information in the investigator’s affidavit nevertheless also
justified a search of the digital contents of the “appellant’s computer equipment and
associated materials”).
    19Richards is pending review by the Court of Appeals for the Armed Forces only
as to whether the “search authorization was overbroad in failing to limit the dates of
the communications being searched,” and as to whether the Court of Criminal
Appeals panel that heard Richards’ case was “improperly constituted.”
    20See also United States v. Eppes, No. 38881, unpublished op., 2017 CCA LEXIS
152, at *15 (A.F. Ct. Crim. App. 21 Feb 2017) (“[B]ased on the facts developed by the
military judge, we are satisfied the intent of the warrant was to authorize the
examination of computer hardware seized . . . .”).


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                       United States v. Betancourt, No. 201500400


back page) of the “Affidavit In Support Of Application For Search
Authorization.”21 The cover sheet cites the lead agent’s:
              Belie[f] that there is now being concealed certain property,
          namely: . . . . Electronic media, communications, and data files
          pertaining to the kidnapping, assault, and sexual assault of
          [Ms. MR]; defrauding the U.S. Marine Corps; sale and use of
          illegal drugs; affiliation with an Outlaw Motorcycle Gang; and
          possessing a swastika tattoo on [the appellant’s] abdomen.22
   The Area Commander then signed the search authorization prepared by
the lead agent. Based on this, we find that the Area Commander intended to
authorize the requested search of the contents of the appellant’s cell phone
once it was seized.
    2. Was the CASS overbroad?
    The appellant next argues that the search of his cell phone’s contents was
overly broad because it neither “list[ed] with particularity the places to
search on [the] cell phone,” nor contained “search protocols.”23 We review de
novo a claim that a search “authorization was overly broad” such that it
“result[ed] in a general search prohibited by the Fourth Amendment.” United
States v. Eppes, 2017 CCA LEXIS 152, at *13 (A.F, Ct. Crim. App 21 Feb
2017) (citing United States v. Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996)).24
“[W]e examine both the warrant and the supporting affidavit to determine
whether the search identifies the crimes committed and the items which

    21   AE XIII at 51; 62-63.
    22   Id. at 51.
    23 Appellant’s Brief at 34. Even though limits to the location to be searched may
be described as search “protocols,” the appellant also raises other concerns (e.g. “[t]o
what degree the search and analysis is done by automation, computer software, or
actual agents; [h]ow it will determine what types of files, or the files themselves, that
fall within the ambit of the probable cause”) related to the methods used to conduct
the search. Id. at 37. As a result, we address the question of over-breadth in the
locations to be searched, separately from the issue of other search protocols.
    24 At trial, the appellant did not directly allege that the search of the cell phone

was overly broad because it failed to specifically list the places to be searched—the
over-breadth claim at trial was that the search of the defense counsel spaces was
overly broad. AE XVII at 8-9. However, in claiming that the CASS was “not based on
probable cause,” trial defense counsel averred that there was no “reason to believe
that other text messages or pictures” besides the messages between the appellant
and Ms. MR the day of the alleged assault, “would be included on the phone.” Id. at 8.
As this argument implies that a search of the phone’s pictures was overly broad, we
find that the appellant did not forfeit the over-breadth argument as to the places to
be searched on the cell phone.


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                        United States v. Betancourt, No. 201500400


could be evidence of those crimes.” Id. at *15 (citing United States v.
Martinelli, 454 F.3d 1300, 1308 (11th Cir. 2006)).
    a. Failure to limit the search to particular places on the cell phone
    The appellant asserts that the examination of the forensic copy of his cell
phone—a copy that included “every text message, email, Facebook chat,
instant message, picture, video, and web-browsing history” accessed on the
appellant’s phone—exceeded the scope of the search authorization and was
therefore overly broad in that it “exceeded the Government’s probable cause
for [the appellant’s] suspected offenses.”25
   The appellant’s argument is supported, in part, by some civilian courts
that have suggested the Fourth Amendment’s “particularity” language
requires search warrants to specify how the government will determine
which locations in a cell phone may be searched for data.26 However, the
Court of Appeals for the Armed Forces (CAAF) has not enforced a similar
prophylactic requirement for all military search authorizations of electronic
media. Instead, particularity in the search authorization must be determined
on a case-by-case basis.
    In some rare and unique cases, probable cause could support a search of
one’s entire cell phone. In these cases, the search authorization would need
only list a description of the cell phone without any greater specificity. But in
most cases, probable cause would permit a search of only some divisions of
the phone’s storage, and the search authorization would need to be tailored
accordingly. However, once again we may rely on the ancillary documents,
affidavits, and attachments to determine where probable cause has placed
natural limits on the scope of the authorization, limiting the search authority
to those places on the phone that were reasonably implicated by probable
cause. In other words, an authorization to search digital media like cell phone
data, meets constitutional particularity requirements when the areas to be




    25   Appellant’s Brief at 40-41.
    26   See In re The Search of Premises Known as: A Nextel Cellular Tel. with
Belonging to & Seized from, 2014 U.S. Dist. LEXIS 88215, at *37, 41 (D. Kan. Jun.
26, 2014) (“[P]robable cause to believe drug trafficking communication may be found
in [the phone’s] mail application will not support the search of the phone’s Angry
Birds application.”). But see United States v. Burgess, 576 F.3d 1078, 1093-94 (10th
Cir. 2009) (noting that “[i]t is unrealistic to expect a warrant to prospectively restrict
the scope of a search” of files “by directory,” as “[o]ne would not . . . expect a warrant
to . . . prospectively restrict the search to . . . ‘file folders labeled ‘Meth Lab’ or
‘Customers’”).


                                           12
                         United States v. Betancourt, No. 201500400


searched are “clearly related to the information constituting probable cause.”
Allen, 53 M.J. at 408.27
    Here, the affidavit listed the crimes about which the lead agent sought to
discover evidence.28 The lead agent’s affidavit also stated that Ms. MR
provided digital images to CID of the appellant wearing gang clothing and
symbols, leading the agent to believe the cell phone would have evidence of
the appellant’s gang involvement.29 The lead agent further averred that
based on her training and experience she expected that “person(s) associated
with the use and sale of illegal drugs typically negotiate prices, set up
meetings to conduct buys, and exchange photographs and/or videos of
products,” and that those in “gang affiliated activities communicate regularly
via cellular telephone, exchange messages, photographs and videos.”30 The
affidavit further provided that the appellant tested positive for cocaine in a
command urinalysis and that Ms. MR reported having “seen [the appellant]
possessing and using cocaine and crystal methamphetamine,” and “weighing
and packaging the illegal drugs in preparation to sell them[.]”31 This
supported the lead agent’s assertion to the search authority that there was
“probable cause to believe evidence of his use, possession, manufacture or
sale of illegal drugs [was] contained on his cellular telephone.”32
   We find that the search authorization was not unconstitutionally
overbroad. The affidavit’s description of potential drug, gang, sexual assault,
and kidnapping charges served to focus the investigatory effort. The affidavit

   27 In Allen, the CAAF held that a warrant which stated in its supporting affidavit
that a search for child pornography on Allen’s “digitally stored files on computer
disks or hard drives,” without otherwise listing specific locations on the drives, was
“not general or overbroad.” Id. at 407-08. Similarly, in Richards the AFCCA held that
a broad search of digital copies of Richards’ electronic devices was “not
constitutionally overbroad.” 2016 CCA LEXIS 285, at *49, 59. Even though the child
victim’s statements to investigators did not say that Richards had “shared pictures or
videos” in their online chats, a search of the pictures folder in Richards’ devices did
not exceed the scope of the search authorization. Id. at *57, 60 (noting that although
the “choice to first search the ‘pictures’ folder might not have been the most logical
place to find . . . evidence . . . it was not an unreasonable place” to search).
   28 AE XIII at 51 (“[T]he request for authorization to search and seize is made in
connection with an investigation into the offense(s) of: Article 92, UCMJ—Failure to
obey order or regulation, Article 120—Sexual Assault, Article 128—Assault, Article
132—Frauds against the United States, and Article 134–Kidnapping.”).
   29   Id. at 56, 62.
   30   Id. at 52, 58-59.
   31   Id. at 56, 61
   32   Id. at 62.


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                        United States v. Betancourt, No. 201500400


provided a substantial basis for probable cause to suspect that the appellant
distributed illegal drugs and was a gang member. It then linked those
behaviors to cell phone usage. Since the identified locations on the phone to
be viewed—e.g., contacts, photos, videos, and messages—were, per Allen,
“related to the information constituting probable cause,” 53 M.J. at 408, the
authorization provided sufficient limits to deter government “rummaging”
through the phone in areas where evidence of a crime might not reasonably
be located.33 As a result, the authorization was not general or overbroad.
   Finally, even if the government exceeded the scope of its authorization
when it created a forensic copy of the entire contents of the phone, including
the analytical data, we find no prejudice under these circumstances in which
the only evidence discovered on the phone was found in those areas included
in the authorization’s probable cause, and the intrusion into other areas
appeared—from the meager record provided—to be superficial.34
    b. Failure to specify search protocols
    For the first time, the appellant argues that the failure to specify search
protocols makes the CASS unconstitutionally overbroad.35 Where a “different
basis was raised in [the] suppression motion at trial” than on appeal, we
review for “plain error.” United States v. Garcia, 57 M.J. 716, 718-19 (N-M.
Ct. Crim. App. 2002) (citing United States v. Musa, 45 F.3d 922, 924 (5th Cir.
1995)). As the appellant did not argue at trial that the images should be
suppressed for failure to follow particular search protocols, we review for
plain error.
   To show plain error, the appellant must persuade this court that: “‘(1)
there was error; (2) the error was plain or obvious; and (3) the error
materially prejudiced a substantial right of the accused.’” United States v.
Tunstall, 72 M.J. 191, 194 (C.A.A.F. 2013) (quoting United States v.
Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)). The plain error doctrine is “to be
used sparingly, solely in those circumstances in which a miscarriage of justice
would otherwise result.” United States v. Causey, 37 M.J. 308, 311 (C.M.A.
1993) (citations and internal quotation marks omitted).“‘Plain’ is synonymous

    33Appellant’s Brief at 33 (citing Coolidge v. New Hampshire, 403 U.S. 443, 467
(1971)).
    34See United States v. Blakeney, 942 F.2d 1001, 1026-27 (6th Cir. 1991) (holding
that even where a portion of a warrant impermissibly used the overbroad, “generic
term ‘jewelry,’” this did “not require suppression of all of the items seized pursuant to
the warrant,” only of any “jewelry seized pursuant to the overbroad portion of the
search warrant”—and since none of this jewelry was introduced into evidence,
“Blakeney was not prejudiced by the defect in the warrant”).
    35   Appellant’s Brief at 37.


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                    United States v. Betancourt, No. 201500400


with ‘clear’ or, equivalently ‘obvious[,]’” and any plain error “must be so
‘under current law.’” United States v. DeMerse, 37 M.J. 488, 491 (C.M.A.
1993) (first alteration in original) (citation omitted).
    While the use of search protocols may be valuable in guiding
investigators, protecting suspects, and educating courts, we are not aware of
any authority from our superior court requiring the use of such search
protocols in all cases involving the search of electronic media. In light of
judicial divergence as to their necessity,36 we thus decline to find the absence
of search protocols in this case to be plain or obvious error. We will not assign
to the military judge a responsibility to foresee requirements that we have
yet to anticipate.
B. Unlawful command influence
    “Congress and this court are concerned not only with eliminating actual
unlawful command influence, but also with ‘eliminating even the appearance
of unlawful command influence at courts-martial.’” United States v. Lewis, 63
M.J. 405, 415 (C.A.A.F. 2006) (quoting United States v. Rosser, 6 M.J. 267,
271 (C.M.A. 1979)).
    The defense has the burden of raising the issue of actual or apparent
unlawful command influence. United States v. Reed, 65 M.J. 487, 488
(C.A.A.F. 2008) (citing United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F.
1999)). On appeal the appellant must present “some evidence” of unlawful
command influence, showing (1) “facts which, if true, constitute unlawful
command influence,” (2) “the proceedings were unfair,” and (3) “unlawful
command influence was the cause of the unfairness.” Biagase, 50 M.J. at 150
(citations omitted).
    “The test for actual unlawful command influence is, figuratively
speaking, ‘whether the convening authority has been brought into the
deliberation room.’” United States v. Allen, 31 M.J. 572, 590 (N-M.C.M.R.
1990) (quoting United States v. Grady, 15 M.J. 275 (C.M.A. 1982)).
    The test for apparent unlawful command influence is objective. “We focus
upon the perception of fairness in the military justice system as viewed
through the eyes of a reasonable member of the public.” Lewis, 63 M.J. at
415. An appearance of unlawful command influence arises “where an
objective, disinterested observer, fully informed of all the facts and


   36 Compare Burgess, 576 F.3d at 1093-94 (criticizing imposition of “filename or
extension”—i.e. file type—protocols) with United States v. Comprehensive Drug
Testing, Inc., 579 F.3d 989, 1006 (9th Cir. 2009) (en banc) (“The government’s search
protocol must be designed to uncover only the information for which it has probable
cause, and only that information may be examined by the case agents.”).


                                         15
                       United States v. Betancourt, No. 201500400


circumstances, would harbor a significant doubt about the fairness of the
proceeding.” Id.
    Once some evidence has raised the specter of unlawful command
influence, “the government bears the burden of proving beyond a reasonable
doubt that either the predicate facts proffered by the appellant do not exist,
or the facts as presented do not constitute unlawful command influence.’”
United States v. Boyce, __ M.J. __, No. 16-0546, 2017 CAAF LEXIS 494 at *16
(C.A.A.F. May 22, 2017) (citing United States v. Salyer, 72 M.J. 72 M.J. 415,
423 (C.A.A.F. 2013)). If the government cannot meet this initial burden, then
the government must prove beyond a reasonable doubt “that the unlawful
command influence did not place an intolerable strain upon the public’s
perception of the military justice system and that an objective, disinterested
observer, fully informed of all the facts and circumstances, would [not] harbor
a significant doubt about the fairness of the proceeding.” Id. at *16-17
(citations and internal quotation marks omitted) (alteration in original).
    ‘“Where the issue of unlawful command influence is litigated on the
record, the military judge’s findings of fact are reviewed under a clearly-
erroneous standard, but the question of command influence flowing from
those facts is a question of law that [the] Court reviews de novo.”’ Reed, 65
M.J. at 488 (C.A.A.F. 2008) (quoting United States v. Wallace, 39 M.J. 284,
286 (C.M.A. 1994)).
    At his court-martial, the appellant made a timely motion to dismiss the
charges and specifications on the grounds of unlawful command influence.
The military judge determined that the defense presented no evidence of
actual unlawful command influence, concluding: “The actions of the CID
investigators, trial counsel and area commander in this case were not an
effort to influence the outcome of the [appellant’s] court-martial.”37
    However, the military judge did find some evidence supporting apparent
unlawful command influence, namely that the search for the phone extended
into the offices of defense counsel with no involvement in the appellant’s case.
Having shifted the burden, the military judge then found the government
met its burden and denied the defense motion.
    The appellant now asserts that the appearance of unlawful command
influence directly affected the findings and sentence in that “the Government
still used evidence seized from [the appellant’s] phone at trial,”38 and the


   37 AE CLXXII at 14. Of note, the commander who authorized the search, the 22

Area, Area Commander, was neither the convening authority nor the appellant’s
commanding officer.
   38   Appellant’s Brief at 55.


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                   United States v. Betancourt, No. 201500400


search led to 1stLt I’s and 1stLt F’s disqualification as defense counsel and
an order for them to testify.
    We agree that the appellant has raised some evidence of apparent
unlawful command influence. Nonetheless, we are convinced beyond
reasonable doubt that an objective, disinterested observer, fully informed of
all the facts and circumstances, would not harbor a significant doubt as to the
fairness of the appellant’s court-martial, to include the findings and the
adjudged sentence.
    First, the government took significant corrective action after the search to
limit disclosure of any information obtained by CID agents during the search.
This included removing the STC, the trial counsel, and the investigators from
further involvement with the investigation or court-martial. Newly assigned
trial counsel and investigators were not part of the Legal Support Services
Team but from the separate Complex Trial Team. The video recording of the
search was secured by order until a special investigating officer was
appointed to review it for potential leakage of privileged information.
Subsequently, the recording was sealed by the military judge who reviewed it
in camera.
    Second, as discussed supra, the phone and its contents were seized
pursuant to a valid search authorization. Therefore its contents, while both
helpful and harmful to the appellant’s cause, did not unfairly affect the
findings or sentence. Likewise, 1stLt I and 1stLt F were disqualified as
defense counsel and ordered to testify as a result of their possession of the
phone, not as a result of the manner in which the phone was ultimately
acquired by the government. Had the government obtained the phone by
more ordinary means, 1stLt I and 1stLt F may still have been necessary
witnesses as to the chain of custody of the phone and the phone case.
Similarly, the eventual conflict of interest between 1stLt I, 1stLt F, and the
appellant was not born of the search, but of defense counsels’ possession of
the phone preceding the search. In that regard, the search was immaterial to
the matter of whether to disqualify either defense counsel.
    Finally, the best indicator of the lack of apparent unlawful command
influence is the fact that the appellant was wholly or partially acquitted of
many of the most serious offenses related to the attack on Ms. MR. To the
extent the text messages between the appellant and Ms. MR weighed upon
the members, they did not prevent them from finding the appellant not guilty
of assaulting Ms. MR with a dangerous weapon, assaulting her with an
intent or a means likely to cause grievous bodily harm, and communicating
threats to her and her daughter.




                                      17
                      United States v. Betancourt, No. 201500400


    For these reasons, we are convinced beyond reasonable doubt that the
appellant’s trial was untainted by the appearance of unlawful command
influence.
C. Prosecutorial misconduct
    Prosecutorial misconduct occurs when a prosecutor “‘oversteps the bounds
of propriety and fairness which should characterize the conduct of such an
officer in the prosecution of a criminal offense.’” United States v. Fletcher, 62
M.J. 175, 179 (C.A.A.F. 2005) (quoting Berger v. United States, 295 U.S. 78,
84 (1935)). “Prosecutorial misconduct can be generally defined as action or
inaction by a prosecutor in violation of some legal norm or standard, e.g., a
constitutional provision, a statute, a Manual rule, or an applicable
professional ethics canon.” United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996)
(citing Berger, 295 U.S. at 88) (additional citation omitted).
    When an appellant objects to alleged prosecutorial misconduct at trial, we
review for prejudicial error. United States v. Hornback, 73 M.J. 155, 159
(C.A.A.F. 2014). We will accept the military judge’s findings of fact unless the
findings are clearly erroneous.
   Here, the appellant made a timely motion alleging that the actions or
inaction of the STC related to the search of the defense offices amounted to
prosecutorial misconduct. In denying the appellant’s motion, the military
judge found:
              Although [the STC] was aware of the Air Force JAG
          memorandum concerning searches of defense counsel offices
          and other procedures usually put in place for such types of
          searches, he did not think that they applied to this situation
          because the evidence being sought was not a document and the
          search would not require the review of any documents in an
          attorney’s office.39
      The appellant asserts that the STC40 committed prosecutorial
misconduct when he supervised the search of defense offices without first
implementing safeguards to minimize exposure to attorney work product and


    39   AE CLXXVII at 7-8.
    40  In his brief, the appellant alleges that “the Government committed
prosecutorial misconduct when it executed an overly-expansive search of the defense
spaces[.]” Appellant’s Brief at 59. Under the facts of this case, we decline to paint all
possible government actors as de facto prosecutors, and instead, focus our analysis on
the actions or inactions of the STC, in line with the allegation as litigated by the trial
defense counsel, analyzed by the military judge, and focused on during oral
argument.


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                    United States v. Betancourt, No. 201500400


privileged communications as discussed in United States v. Calhoun, 49 M.J.
485 (C.A.A.F. 1998) and utilized in other jurisdictions.41
    As highlighted by the appellant, these precautions include: consideration
for obtaining the desired information from other sources or through the use of
subpoena; conducting the search pursuant to a valid warrant issued by a
military magistrate or a search authorization directed by a commander not
serving as the convening authority; issuing warrants or authorizations
tailored as narrowly as possible; ensuring that only independent personnel
are involved in searching the counsel’s office and reviewing the materials
taken, and that those personnel are provided instructions designed to
minimize the intrusion into privileged materials; providing copies of seized
records to the subject counsel so that disruption of the counsel’s practice is
minimized and the counsel is afforded an opportunity to participate in the
process of disputing determinations of privilege; and directing personnel
conducting the search not to disclose information about the search to
prosecutors or investigators until instructed to do so by proper authority.42
    This non-exhaustive list of safeguards utilized by U.S. Attorney’s offices
and, in part, tacitly endorsed by the CAAF in Calhoun, provides an excellent
framework for future searches of opposing counsel offices–a rare event
inherently fraught with potential for error. These or similar procedures may
also assist in satisfying the requirements of the Navy Judge Advocate
General Instruction 5803.1E, Professional Conduct of Attorneys Practicing
under the Cognizance and Supervision of the Judge Advocate General (JAG
PR), Enclosure (1), Rule 3.8b (20 Jan 2015), which provides that:
            [T]rial counsel and other government counsel shall exercise
        reasonable care to avoid intercepting, seizing, copying, viewing,
        or listening to communications protected by the attorney-client
        privilege during investigation of a suspected offense
        (particularly when conducting government-sanctioned searches
        where attorney-client privileged communications may be
        present), as well as in the preparation or prosecution of a case.
    However, we decline to hold that these specific procedures rose to the
level of a legal norm or standard at the time of the search of the defense
spaces. As a result, we do not find the failure to utilize these or similar

   41 The appellant relies here on Chapter Nine of the U.S. Attorney’s Manual.
Appellant’s Brief at 58-60.
   42  Calhoun, 49 M.J. at 488; United States Department of Justice, U.S. Attorney’s
Manual, Title 9-13.420, Searches of Premises of Subject Attorneys,
https://www.justice.gov/usam/usam-9-13000-obtaining-evidence#9-13.420,         (last
visited 28 May 2017).


                                        19
                        United States v. Betancourt, No. 201500400


precautions resulted in prosecutorial misconduct. Still, based on the
cautionary tale of this case, prosecutors should ensure that specially tailored
safeguards, like those used in Calhoun, are prophylactically applied in all
future cases in which they are participants in the planning and execution of a
search of opposing counsel’s spaces.
    Even if the failure to apply these safeguards before the search amounted
to misconduct on the part of the STC, we find no prejudice.
   In assessing for prejudice, we look at the cumulative impact of any
misconduct on the appellant’s substantial rights and the fairness of his trial
by 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 conviction.” Fletcher, 62 M.J. at 184. Prosecutorial misconduct
requires reversal when the trial counsel’s behavior, taken as a whole, was “so
damaging that we cannot be confident that the members convicted the
appellant on the basis of the evidence alone.” Id.
   1. Severity of the misconduct
    While the STC maintained supervisory responsibility for the trial counsel
in his Legal Services Support Team, he was not specifically detailed to the
appellant’s case. Despite this, he was regularly involved in discussing case
matters with the detailed trial counsel, and once the possibility of the search
of the defense offices became more likely, he also engaged his counterpart,
the senior defense counsel, in several discussions designed to “reach mutually
agreeable terms on relinquishing [the phone] to the government.”43
    After compromise failed, the STC received concurrence from his
supervisory attorney and the LSSS OIC that a CASS should be executed. He
then contacted CID and arranged for them to search the spaces as soon as
defense counsel were present. He also reviewed the CASS and affidavit for
legal sufficiency.
    When CID arrived at the defense offices, the STC briefed them on the
conduct of the search: “I told them that they should execute their search
according to the highest standards of their protocols for conducting a search. I
told them that the conduct of this search would be highly scrutinized. I
ensured they had a video recorder to document the search itself.”44 He did not
provide the searchers any additional specific protocol on conducting the
search. He provided the searchers no guidance in writing.




   43   AE XIV at 59.
   44   Id. at 61.


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                  United States v. Betancourt, No. 201500400


    During the search, the STC entered the defense offices three times; once
to inform the senior defense counsel of the search, once to determine whether
personnel would be permitted to leave the spaces during the search, and once
to carry out an administrative function unrelated to the search. The STC did
not supervise the CID agents’ conduct of the search, observe their search
techniques, or provide advice to the agents during the course of the search.
    Afterwards, the STC was briefed by the CID agents and was informed
that the agents had seized a phone, a case, a charger, and a spare battery.
The agents did not disclose any other information to him. The STC asserts
that he instructed the agents to secure the evidence and the video recording
of the search from examination and to not discuss anything they observed
until they were provided further guidance.
   This was the sum total of the STC’s involvement in the search of the
defense offices. While the search of the other defense counsels’ offices–those
with no direct connection to the appellant–raises the specter of unlawful
command influence and demands greater scrutiny of each affected case, the
STC’s involvement in those parts of the search were still tangential.
Additionally, while his failure to enforce more rigorous taint procedures
before the search were not best practices, this did not rise to the level of
severe misconduct under the circumstances of this case.
   2. Measures adopted to cure the misconduct
    Furthermore, any inaction on the part of the STC prior to the search were
offset by the robust measures taken to preserve any potential leakage of
privileged information undertaken immediately after the search ended.
    As discussed above, the searchers were ordered to secure the video
recording and not discuss the search until directed to do so. The LSSS OIC
directed a taint review of the video recording. The CID agents assigned,
including the lead agent, were removed from the case. The STC was removed
from his position, and the trial counsel was removed from the appellant’s
case. Two new trial counsel and new CID investigators from different chains
of command were assigned to the case.
   3. Weight of the evidence supporting the conviction
    Finally, after weighing the evidence supporting the appellant’s conviction
for aggravated sexual contact and assault consummated by battery, including
the cell phone tower analysis placing the appellant in the area of Ms. MR’s
home, the medical evidence of Ms. MR’s vulvar hematoma, the bruising on
her neck consistent with strangling, and the contents of the 9-1-1 phone call,
and recognizing that we did not see or hear the witnesses, this court is
convinced of the appellant’s guilt beyond a reasonable doubt.



                                     21
                     United States v. Betancourt, No. 201500400


   For these reasons, even were we to determine that the STC’s actions or
inaction related to the search rose to the level of misconduct, we find no
prejudicial error.
D. Disqualification of defense counsel
   The appellant argues he was denied his Sixth Amendment right to
counsel when the military judge disqualified 1stLt I and 1stLt F from further
participation as the appellant’s defense counsel.
    Prior to court-martial assembly, the government moved to disqualify both
defense counsel asserting that they were potential witnesses at trial based on
their possession of the appellant’s cell phone during the month preceding the
search of the defense offices. The government alleged that counsel’s
testimony was necessary to account for the deletion of text messages and
gang member contact information from the phone—evidence of the
appellant’s guilty mind—and to discount sources of cocaine residue on the
phone’s case other than the appellant. This raised both a conflict of interest
issue and a concern over defense counsel operating as unsworn witnesses.
   To ameliorate these concerns, the military judge sought from the
appellant a waiver of any conflict, identifying the conflict as the foreclosure of
possible defenses by the appellant should he choose to implicate his counsel
in deleting potentially incriminating matters from his phone or in cross-
contaminating his phone with cocaine from another source inside 1stLt I’s or
1stLt F’s desk drawers. After speaking with conflict-free counsel, the
appellant asserted that he understood the nature of the conflict and waived
the right to conflict-free counsel.45
   The military judge also encouraged the parties to stipulate to defense
counsel’s testimony regarding their possession of the appellant’s phone,
resolving a possible violation of JAG PR Rule 3.7 that generally prohibits
counsel from appearing as a witness on a contested matter.
    After the parties failed to reach a stipulation, the military judge
disqualified counsel, finding that defense counsel’s reluctance to stipulate
may have evidenced a desire to limit their own exposure under the JAG PR
rules. If so, then the conflict of interest “likely ran deeper than [the appellant]
understood and knowingly waived.”46 She also found that 1stLt I and 1stLt F


   45  We highlight United States v. Hale, ___ M.J. ___, No. 201600015, 2017 CCA
LEXIS 364, at *42-43 (N-M. Ct. Crim. App. 31 May 2017), demonstrating the
difficulties that may arise—unlike here—when the military judge for whatever
reason is unable to identify possible conflicts of interest, inquire into the nature of
those conflicts, and resolve them, if necessary, through waiver or disqualification.
   46   AE CLXXVIII at 18.


                                          22
                   United States v. Betancourt, No. 201500400


would be the only sources of information concerning the handling of the
phone and would thus be necessary witnesses on a potentially contested issue
at trial.
    The appellant was detailed two new counsel, a Marine Corps major and a
captain, who represented the appellant during the rest of the motions
hearings, through his pleas, on the merits, and during sentencing
proceedings. During the contested portion of trial, 1stLt I and 1stLt F were
called to testify, denied deleting any text messages from the phone, and
denied placing the phone in a location in which it might come into contact
with cocaine. This testimony, when taken in concert with the lab’s
identification of cocaine residue on the phone’s case, corroborated Ms. MR’s
claim that the appellant regularly kept cocaine hidden between his phone
and its case. 1stLt I’s and 1stLt F’s testimony left unresolved the matter of
the missing text messages.
    The Sixth Amendment to the Constitution guarantees that “in all
criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” Once an attorney-client relationship
has been established, it may be severed only for “good cause” unless the
relationship has been terminated with the consent of the member. RULE FOR
COURT-MARTIAL 505(d)(2)(B), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.); United States v. Spriggs, 52 M.J. 235, 240 (C.A.A.F. 2000).
    Good cause may exist when a conflict of interest places in doubt the
ability of defense counsel to be an effective advocate. “[W]here a
constitutional right to counsel exists . . . there is a correlative right to
representation that is free from conflicts of interest.” United States v. Lee, 66
M.J. 387, 388 (C.A.A.F. 2008) (quoting Wood v. Georgia, 450 U.S. 261, 271
(1981)). An accused may waive this right to conflict-free counsel, but this
must be done voluntarily and with “sufficient awareness of the relevant
circumstances and likely consequences” as to be knowing and intelligent. Id.
(quoting Brady v. United States, 397 U.S. 742, 748 (1970) (internal quotation
marks omitted)). The military judge must be allowed substantial latitude in
refusing to accept an appellant’s waiver of a conflict of interest “not only in
those rare cases where an actual conflict may be demonstrated before trial,
but in the more common cases where a potential for conflict exists which may
or may not burgeon into an actual conflict as the trial progresses.” Wheat v.
United States, 486 U.S. 153, 163 (1988).
    Good cause may also exist when the conflict creates the appearance of
unfairness to observers or threatens to undermine ethical standards. Id. at
160. Both a potential ethical conflict and the appearance of unfairness may
arise when a counsel becomes a witness at court-martial.



                                       23
                    United States v. Betancourt, No. 201500400


    “An attorney acts as an unsworn witness when his relationship to his
client results in his having first-hand knowledge of the events presented at
trial.” United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993). “His role as
advocate may give his client an unfair advantage, because the attorney can
subtly impart to the jury his first-hand knowledge of the events without
having to swear an oath or be subject to cross examination.” Id.
    To that end, JAG PR Rule 3.7 prohibits counsel from acting as an
advocate at a trial in which he or she is likely to be a necessary witness,
unless: (1) the testimony relates to an uncontested issue; (2) the testimony
relates to the nature and quality of the legal services rendered; or (3)
disqualification of counsel would work substantial hardship on the client.
    We review a military judge’s decision to disqualify counsel for an abuse of
discretion. United States v. Strother, 60 M.J. 476, 478 (C.A.A.F. 2005). The
military judge will be overturned only if the findings of fact are clearly
erroneous or the decision is influenced by an erroneous interpretation of the
law. United States v. Rhoades, 65 M.J. 393, 397 (C.A.A.F. 2008) (citing United
States v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006)).
   We agree with the military judge that there existed good cause to sever
the attorney-client relationship and disqualify 1stLt I and 1stLt F as defense
counsel.
    First, an actual conflict of interest47 operated between the interests of the
appellant and his counsel as to the contents and whereabouts of the
appellant’s phone. 1stLt I and 1stLt F possessed the appellant’s phone from
24 March 2014 to 2 May 2014. During that time, they powered-on and
perused the phone’s contents, created and deleted content, connected the
phone to their government computers in order to transfer data, removed the
phone’s case, and discussed turning the phone over to the appellant’s then-
girlfriend, Ms. HK. This placed 1stLt I and 1stLt F in the position of
defending themselves from accusations that they intentionally or negligently
destroyed evidence or were the source—through cross-contamination or other
means—of the damning cocaine residue evidence. Fear of violating ethical
rules also appeared to motivate 1stLt F’s attempt to return the phone to Ms.
HK (via the appellant’s SNCOIC), demonstrating that his own professional
concerns had begun to creep into his tactical decision-making. These conflicts
ran so deep that the military judge was well within her discretion to refuse to


   47  See Hale, 2017 CCA LEXIS 364, at *23 (“A conflict of interest is actual, as
opposed to potential, when, during the course of the representation, ‘the attorney’s
and defendant’s interests diverge with respect to a material factual or legal issue or
to a course of action.’”) (quoting United States v. Perez, 325 F.3d 115, 125 (2d Cir.
2003)).


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                     United States v. Betancourt, No. 201500400


accept the appellant’s waiver because it had not been knowingly and
intelligently made.
   Second, 1stLt I and 1stLt F became necessary witnesses to the trial, each
possessing first-hand knowledge regarding their personal possession of the
phone. As the military judge noted,
         [T]he members would be able to determine that [1stLt I and
         1stLt F] were the only sources of information concerning the
         chain of custody and the care and handling of the phone and
         case. The same attorneys would then be arguing to the
         members concerning this testimony, leading the members to
         place greater weight on the defense arguments because the
         counsel clearly had first-hand knowledge of these events.48
    Such an advantage to the defense would create an appearance of
unfairness to an outside observer and seem to violate the prohibition of JAG
PR Rule 3.7. As a result, it was appropriate to sever the attorney-client
relationship when alternatives to the defense counsel’s testimony were no
longer viable.
    For these reasons, we find that the military judge did not abuse her
discretion when disqualifying 1stLt I and 1stLt F as appellant’s defense
counsel.
E. Admission of evidence under MIL. R. EVID. 404(b)
    While “[e]vidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion the person
acted in accordance with the character[,]” it may be admissible to prove,
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” MIL. R. EVID. 404(b)(1) and (2), SUPPLEMENT
TO MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Evidence of
this type must be offered for a proper purpose other than to demonstrate the
propensity of an accused to commit the crimes charged. United States v.
Acton, 38 M.J. 330, 333 (C.M.A. 1993) (quoting United States v. Castillo, 29
M.J. 145, 150 (C.M.A. 1989)).
   In order to admit evidence of uncharged misconduct under MIL. R. EVID.
404(b): (1) the evidence must reasonably support a finding that the accused
committed the uncharged misconduct; (2) a material fact in issue must be
made more or less probable by the evidence; and (3) the danger of unfair
prejudice must not substantially outweigh the probative value of the
evidence. United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).


   48   AE CLXXVIII at 18.


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                       United States v. Betancourt, No. 201500400


    We review a military judge’s evidentiary rulings for an abuse of
discretion, that is, whether the “challenged action [is] arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.” United States v. Solomon, 72 M.J.
176, 179 (C.A.A.F. 2013) (citation and internal quotation marks omitted).
    Prior to trial, the government sought a preliminary ruling on the
admissibility of various items of evidence under MIL. R. EVID. 404(b)(1) and
(2). Specifically, trial counsel sought to introduce the testimony of Ms. MR,
relating her knowledge of the various criminal acts for which the appellant
had already pleaded guilty, that is: his participation in the criminal
motorcycle gang; his possession of cocaine, methamphetamines, and the tools
needed to distribute those drugs to others; his use of cocaine and steroids; his
fraudulent receipt of BAH; and his swastika tattoo. They also sought to
introduce several photographs of the appellant that were also corroborative of
his participation in the criminal motorcycle gang and of his possession of
drugs.
    The military judge issued a written ruling applying the three-part test for
admissibility of evidence of uncharged misconduct offered under MIL. R.
EVID. 404(b), established in Reynolds, and determined that evidence of the
appellant’s alleged steroid use and additional pictures of his swastika tattoo
were inadmissible either because the evidence failed to support the
underlying act (the steroid use) or because the probative value was
substantially outweighed by the danger of unfair prejudice (the swastika
tattoo). The military judge did permit the government to introduce the rest of
Ms. MR’s testimony and the photographs to demonstrate a possible motive
for assaulting Ms. MR—“to protect [the appellant] and the members of the
[gang].”49 The photographs were admitted as Prosecution Exhibits 14, 15 and
16.
    Both before the introduction of evidence50 and again before
deliberations,51 the military judge instructed the members that evidence of
other crimes or acts was not admissible to show that the appellant was a bad
person, but instead was being introduced by the government to show the
motivation of the appellant to commit the offenses alleged.
   The appellant now asserts that the military judge abused her discretion
by admitting Prosecution Exhibits 14, 15, and 16 (the photographs) into




   49   AE CXXXV at 4.
   50   Record at 1104.
   51   Id. at 1655.


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                     United States v. Betancourt, No. 201500400


evidence and by failing to articulate the application of the Wright factors52 in
evaluating the third Reynolds prong. We disagree.
   Here, the military judge admitted the prosecution exhibits only after
applying the Reynolds test, finding the evidence legally relevant, and
determining its probative value was not substantially outweighed by the
danger of unfair prejudice.53 Because the military judge did not articulate any
balancing of the Wright factors on the record, we will accord her decision less
deference than we would otherwise. United States v. Berry, 61 M.J. 91, 96
(C.A.A.F. 2005).54 Regardless, we find that the military judge did not abuse
her discretion in admitting the evidence as proof of the appellant’s motive,
and further conclude that the military judge appropriately directed the
members to limit their consideration of the evidence to its proper uses.
F. Errors in the court-martial order
    As identified by the appellant and conceded by the government, the
promulgating order fails to reflect that the military judge dismissed
Specification 1 of the Third Additional Charge IV as multiplicious with
Specification 2 of the Third Additional Charge II after the members found the
appellant not guilty of the greater offense under the charge but guilty of the
lesser included offense of assault consummated by battery. The appellant
does not assert, and we do not find, any prejudice resulting from this error.
Nevertheless, the appellant is entitled to have the court-martial order
accurately reflect the results of the proceedings. United States v. Crumpley,
49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order corrective action
in our decretal paragraph.




   52  The Wright factors as first set out in United States v. Wright, 53 M.J. 476
(C.A.A.F. 2000) and subsequently articulated in United States v. Berry, 61 M.J. 91,
95 (C.A.A.F. 2005) are: “the strength of the proof of the prior act; the probative
weight of the evidence; the potential to present less prejudicial evidence; the possible
distraction of the fact-finder; the time needed to prove the prior conduct; the
temporal proximity of the prior event; the frequency of the acts; the presence of any
intervening circumstances; and the relationship between the parties.”
   53   AE LXXI.
   54  We also find the Wright factors to be largely inapt when applied to this case
involving the appellant’s possible motives to commit the alleged crime as analyzed
solely under MIL. R. EVID. 404(b).


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                   United States v. Betancourt, No. 201500400


                              III. CONCLUSION
   The findings and the sentence are affirmed. The supplemental court-
martial order shall reflect that Specification 1 of the Third Additional Charge
IV was dismissed.
   Senior Judge CAMPBELL and Judge HUTCHISON concur.

                                           For the Court



                                        R.H. TROIDL
                                        Clerk of Court




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