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

                              No. ACM 39462
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                           Eric W. MOTE
                Captain (O-3), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                       Decided 13 September 2019
                         ________________________

Military Judge: Christopher M. Schumann.
Approved sentence: Dismissal and a reprimand. Sentence adjudged 2
February 2018 by GCM convened at Hill Air Force Base, Utah.
For Appellant: Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Pe-
ter F. Kellett, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Senior Judge J.
JOHNSON and Judge POSCH joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as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

KEY, Judge:
   A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of five specifications of disrespect towards a superior
commissioned officer; one specification of willful disobedience of a superior
commissioned officer; and one specification of conduct unbecoming an officer
and gentleman, in violation of Articles 89, 90, and 133, Uniform Code of Mili-
                       United States v. Mote, No. ACM 39462


tary Justice (UCMJ), 10 U.S.C. §§ 889, 890, and 933. 1 The court-martial sen-
tenced Appellant to a dismissal and a reprimand. The convening authority
approved the sentence as adjudged.
    On appeal, Appellant alleges the military judge erred by admitting, ex-
cluding, and characterizing certain items of evidence; that two specifications
are multiplicious; and that an order Appellant received was unlawful. We
find no error and affirm the findings and sentence.

                                 I. BACKGROUND
    Appellant had a strained relationship with his leadership, stemming in
part from his attempt to establish a “white heritage” month at Hill Air Force
Base—the denial of which led to Appellant launching a salvo of complaints.
Appellant was admonished for his disrespectful conduct towards senior Air
Force leaders and other personnel during the investigation of those com-
plaints, which Appellant responded to by filing additional complaints. During
this time, Appellant engaged in further confrontational behavior, to include
antagonizing attendees at a base “Diversity Festival” after being denied per-
mission to set up a “white heritage” booth, leading to another round of com-
plaints filed by, and leadership actions taken against, Appellant. All told,
Appellant filed nine Inspector General complaints, five Equal Opportunity
complaints, and two Article 138, UCMJ, 2 complaints. Appellant, meanwhile,
received a letter of admonishment, a letter of reprimand, and nonjudicial
punishment under Article 15, UCMJ, 3 for his behavior. Appellant’s relation-
ship with his leadership was aggravated by his penchant for using his phone
to record interactions with them.
    The conduct giving rise to Appellant’s court-martial charges began on 6
July 2017 when his second-level supervisor, Colonel (Col) SJ, delivered a
scripted, mandatory briefing on the Air Force’s then-existing transgender pol-
icy to a group of subordinates, including Appellant. Near the end of the brief-
ing, Appellant began asking Col SJ questions in front of the group, including
whether Col SJ had a “transracial” policy. 4 At this point, Col SJ told Appel-

1 All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial are found in the Manual for Courts-Martial, United States
(2016 ed.).
2   10 U.S.C. § 938.
3   10 U.S.C. § 815.
4 Appellant defined “transracial” as someone identifying as belonging to “a different
race.”




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                    United States v. Mote, No. ACM 39462


lant they could continue their conversation one-on-one after the rest of the
group was dismissed. Col SJ and Appellant, along with Ms. RG—Col SJ’s
chief of personnel operations—met in Col SJ’s office. Once in Col SJ’s office,
Appellant reengaged with his “transracial” line of questioning, asking among
other things whether he would be eligible for “one of the black awards,” de-
spite being white. Appellant then transitioned to questioning how Col SJ
would respond if the Secretary of the Air Force issued a policy supporting
child pornography—that is, whether Col SJ would adopt a similar policy for
his directorate. When Col SJ explained that child pornography was against
the law, Appellant replied, “[t]here’s all kinds of things you can be tolerant
toward. Let’s be tolerant toward child pornography . . . different strokes for
different folks.” Col SJ described Appellant as being argumentative, inter-
rupting Col SJ, not letting Col SJ answer his questions, slouching in his
chair, and smirking during the conversation. Ms. RG described Appellant as
slouching, smirking, “snarky,” demeaning, and asking questions in “kind of a
smart-alecky tone.” Ultimately, Col SJ told Appellant, “if you’re done, you can
now leave.”
    When Appellant gathered his belongings together to leave the office, Col
SJ noticed Appellant had his phone on top of some books. Col SJ—aware that
Appellant had recorded other conversations in the past—asked Appellant if
he was recording the conversation. Appellant answered in the affirmative.
Col SJ then told Appellant, “I need your phone,” but Appellant refused to give
his phone to Col SJ, asking Col SJ what his authority was to take the phone.
Appellant touched the screen on his phone, and Col SJ asked Appellant if he
was still recording. Appellant, however, would not answer. Col SJ told Appel-
lant to remain in the office while Col SJ stepped out to call the staff judge ad-
vocate (SJA). After discussing the situation with the SJA, the SJA advised
Col SJ to not attempt to seize the phone due to uncertainty about the state of
the law regarding recording of conversations without the consent of both par-
ties. Col SJ returned to his office and told Appellant he could leave. Appellant
asked Col SJ if he was going to take his phone. When Col SJ said he was not
going to take it, Appellant challenged Col SJ: “So the lawful order you just
gave me was in fact unlawful, was it not? It was an abuse of authority, was it
not?” Col SJ declined to answer Appellant’s questions and then asked Appel-
lant if he was still recording. Appellant turned and walked out of Col SJ’s of-
fice.




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                         United States v. Mote, No. ACM 39462


   For his conduct during this meeting, Appellant was charged with disre-
spect toward a superior commissioned officer. 5
    Just under a month later, Appellant sent a disrespectful email to the Air
Force Sustainment Center commander’s executive officer about the com-
mander’s progress on one of Appellant’s complaints. 6 On 9 August 2017, Col
SJ had his executive officer, Major (Maj) CW, set up a meeting with Col SJ,
Appellant, and Appellant’s supervisor, Lieutenant Colonel (Lt Col) DW, for
the purpose of giving Appellant a letter of reprimand for the disrespectful
email. In an attempt to prevent another argument about Appellant recording
conversations, Col SJ asked Maj CW to have the meeting participants leave
their phones on Maj CW’s desk before entering Col SJ’s office. Maj CW con-
veyed this direction to Lt Col DW and Appellant. Lt Col DW put his phone on
Maj CW’s desk, but Appellant just stood there, neither setting down his
phone nor saying anything. Maj CW again asked Appellant to leave his phone
and Appellant again said nothing. Col SJ came out of his office and told Ap-
pellant to leave his phone with Maj CW, but Appellant would not comply. Col
SJ then directed that the meeting would be moved to “the vault,” a secure
room next to his office where mobile devices are prohibited. Appellant refused
to enter the vault, saying that if they were not going to be discussing any-
thing classified, there was no reason to have the meeting in the vault. Col SJ
told Appellant to enter the vault, and Appellant again refused to comply with
this direction, saying he needed his phone as his “witness.” After further ar-
gument, Col SJ decided to move the meeting back to his office, and he once
more told Appellant to leave his phone outside the office, to which Appellant
replied, “[w]e can go into the courtyard if you want to have it.”
    Abandoning his efforts to have Appellant leave his phone with the execu-
tive officer, Col SJ had Lt Col DW and Appellant enter Col SJ’s office where
Col SJ proceeded to read the letter of reprimand to Appellant. Appellant chal-
lenged Col SJ on various points of the reprimand during the meeting, and Col
SJ testified Appellant was “very combatant, very rude, discourteous,” and at
one point Appellant said Col SJ “didn’t deserve the respect of an officer.” At
the conclusion of the meeting, Col SJ told Appellant he could leave, but Ap-
pellant refused to do so unless he received an order from Col SJ to leave the
office, which Col SJ ultimately issued.


5   Specification 1 of Charge I.
6 In the email, Appellant—among other things—asked the executive officer, “Was
this a formal investigation with documented findings? Or was it more like the gen-
eral just shrugged his shoulders and tossed my complaint in the trash?”




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                        United States v. Mote, No. ACM 39462


   As a result of his conduct during the 9 August 2017 meeting, Appellant
was charged with being disrespectful towards Col SJ and for willfully diso-
beying Col SJ’s order to leave his phone outside the office. 7
    The following day, Col SJ issued a unit-wide policy prohibiting the record-
ing of workplace conversations without first obtaining the consent of all par-
ticipants. In response, Appellant sent an email on 14 August 2017 titled “ille-
gal ‘recording policy’” to Major General (Maj Gen) SJ, the commander of the
of the Air Force Nuclear Weapons Center; the center’s SJA; and a member of
the center’s Inspector General’s office. Appellant courtesy copied his direc-
torate on the email, which consisted of approximately 650 other people, to in-
clude military, civilian, and contractor personnel. Col SJ was one of those in
the courtesy-copy line of the email. At the top and bottom of the email, Appel-
lant wrote, “NOTE: This is a protected communication under the Military
Whistleblower Protection Act and contains allegations of multiple instances
of misconduct by [Col SJ].” In the email, Appellant aggressively and sarcas-
tically attacked both Col SJ’s recording policy and Col SJ himself. 8
   For sending this email, Appellant was charged with being disrespectful
towards Col SJ and for conduct unbecoming an officer. 9 Two days later, Col
SJ told Appellant his security clearance was being suspended, and Appel-
lant’s conduct during that conversation was the basis for Appellant’s fourth
specification of being disrespectful toward a superior commissioned officer. 10
   Five days after his security clearance was suspended, Appellant filed an
Article 138, UCMJ, complaint against Maj Gen SJ, essentially alleging Maj
Gen SJ had failed to take action against Col SJ. With a mix of sarcasm and
pretension, Appellant’s complaint demanded Maj Gen SJ, inter alia, resign


7   Specification 2 of Charge I and the Specification of Charge II.
8 For example, Appellant wrote in the email that Col SJ “published the recording pol-
icy in question, under false pretense of military necessity, as a means of concealing
his incompetence and evading accountability for any future misconduct he may to
wish to perpetrate against [Appellant];” that Col SJ “begged [Appellant] to leave his
office;” that Col SJ’s “willingness to degrade the morale of this entire unit by restrict-
ing people’s routine use of their cell phones, simply because he is angry at [Appellant]
is ridiculous;” and that Col SJ’s “policy is groundless, misrepresentative, unneces-
sary, abusive, wasteful, disingenuous, serves no military purpose, and is intended to
conceal violations of law and regulation [and] . . . should therefore be countermand-
ed.”
9   Specification 3 of Charge I and the Specification of Charge III.
10   The Specification of the Additional Charge.




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                         United States v. Mote, No. ACM 39462


his commission and authorize Appellant to disobey Col SJ’s orders. For the
tone of this complaint, Appellant was charged with a fifth specification of dis-
respecting a superior commissioned officer. 11
    Appellant raises the following issues on appeal: (1) the military judge
erred by not allowing Appellant to impeach Col SJ with his recording of the 6
July 2017 meeting; (2) the military judge erred by telling the members the
same recording had not been verified or authenticated by the Government;
(3) the military judge erred by admitting evidence of Appellant’s nonjudicial
punishment and letters of admonishment and reprimand for uncharged of-
fenses; (4) Specification 3 of Charge I is multiplicious with the Specification of
Charge III, as they both arise from Appellant sending his 14 August 2017 “il-
legal ‘recording policy’” email; and (5) the military judge erred by ruling Col
SJ’s order for Appellant to leave his phone outside his office was lawful. 12

                                    II. DISCUSSION
A. Appellant’s Phone Recording and its Use at Trial
   Because Appellant’s first two assignments of error both pertain to the
admission of Appellant’s recording of the 6 July 2017 meeting, we consider
them together.
      1. Additional Background
    At trial, Col SJ testified that during the meeting, Appellant became ar-
gumentative, interrupted Col SJ, and would not let Col SJ answer Appel-
lant’s questions. Col SJ characterized Appellant’s demeanor at the end of the
meeting (when Appellant accused Col SJ of giving him an illegal order) as
being “very animated,” “going off,” “yelling,” “screaming,” and being “very
combatant,” “very rude,” and “discourteous.” In recounting the meeting, Col
SJ testified he responded to Appellant’s question about being eligible for “one
of the black awards” with:
          I said that all these awards had specific [Air Force Instruc-
          tions] that surrounded them, and if he met the criteria and if
          his performance met certain levels of performance, that I would
          consider him and put him in for it and that was it. But I said,
          “this is a little strange.” But we had that conversation.


11   Specification 4 of Charge I.
12Appellant personally raises the fifth issue pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).




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                      United States v. Mote, No. ACM 39462


    After trial counsel’s direct examination of Col SJ, trial defense counsel re-
quested an Article 39(a), UCMJ, session in which trial defense counsel dis-
closed for the first time their possession of a recording of the 6 July 2017
meeting. Trial defense counsel conceded they did not turn over the recording
in the face of a Government discovery request, justifying their tactic by argu-
ing the recording contained “potentially inculpatory statements that, you
know, the defense is making a balancing test whether or not to use and put
these on at the point at which they became relevant.”
    Trial defense counsel sought permission to use the recording for im-
peachment purposes during Col SJ’s cross-examination, and then “authenti-
cate it through the defense’s case in chief.” 13 Trial defense counsel offered
shifting theories for using the recording. Initially, trial defense counsel cited
Mil. R. Evid. 613 for the proposition that the recording could be used to show
inconsistencies in Col SJ’s testimony on direct. Trial defense counsel then
posited the recording could be used for impeachment by contradiction and
prior inconsistent statement and to show bias under Mil. R. Evid. 608(c). To
support their argument, trial defense counsel recounted portions of Col SJ’s
testimony—not all of which is supported by the record. Trial defense counsel
argued that: (1) Col SJ testified he told Appellant “this is a little strange,” but
that the recording included no such language; (2) Col SJ testified Appellant
was argumentative, but the recording did not support that characterization;
(3) Col SJ testified that he could tell Appellant was upset with the
transgender policy, but the recording would not so indicate; (4) Col SJ testi-
fied Appellant accused him of endorsing child pornography, 14 but that was
not on the recording; (5) Col SJ testified Appellant “equivocated” when first


13  Trial defense counsel said they wanted to “use [the recording] in the cross,” but did
not comment on whether they intended to use the entire recording or just portions of
it.
14Trial defense counsel’s characterization of Col SJ’s testimony on this point is mis-
leading. Col SJ testified that Appellant asked “if the Secretary of the Air Force had a
policy on child pornography and thought that was an allowable situation, would I
then create a policy to allow child pornography within the directorate[?] . . . My re-
sponse is policies do change. Child pornography was against the law and that I
wouldn’t have a policy that would be out there that would be a violation of the law.”
Trial counsel asked, “When you said that ‘I would have to follow the Air Force policy,’
did [Appellant] accuse you of supporting child pornography at that point?” Col SJ re-
sponded: “He indicated that would be supporting child pornography.” On cross-
examination, trial defense counsel asked, “Your testimony this morning was that he
accused you of supporting child pornography?” Col SJ replied: “I don’t think that’s
how the conversation went. I don’t think that’s how the conversation was at all.”




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                      United States v. Mote, No. ACM 39462


asked if he was recording, 15 but the recording would not reflect that; (6) Col
SJ testified he made “simply a request” for Appellant to remain in the room
while Col SJ sought advice, 16 but the recording would show “it was a very
specific and loud command;” (7) Col SJ testified that at the end of the conver-
sation Appellant “got animated” and was “screaming” and “going off,” but the
recording would not demonstrate that; (8) Col SJ testified he tried to explain
that an order to turn off Appellant’s phone was not illegal, but the recording
would not show that; and (9) Col SJ testified Appellant did not call him
“sir,” 17 but Appellant actually said “sir” four times.
    The military judge and counsel then listened to the recording of the meet-
ing, a non-verbatim transcript of which is attached to the record of trial as
Appellate Exhibit LXII. After listening to the recording, trial defense counsel
said the recording was being offered under Mil. R. Evid. 608(c), 611(b), 18 and
613(b). The military judge initially told trial defense counsel they would not
be permitted “to play that recording from start to finish,” but that “possibly, if
on cross-examination, [Col SJ] answers these particular questions that you’ve
raised inconsistent with what you believe is in the audio, then maybe you get
snippets of the audio to demonstrate the inconsistency.”
    After taking a recess, the military judge ruled the Defense would be al-
lowed “to play the recording in its entirety for the limited purpose of its ten-
dency, if any, to contradict [Col SJ’s] testimony, for example, regarding
whether [Appellant] was, in fact, yelling, interrupting [Col SJ], was argumen-
tative, or was combative, or any other relevant impeachment purpose under
Mil. R. Evid. 608(c).” The military judge said he would instruct the members
that they could only consider the recording for the limited purpose of showing
Col SJ’s bias or prejudice. The military judge also advised that “counsel are
certainly free to argue or articulate to the members any perceived issues or


15 Trial defense counsel’s characterization is incorrect—Col SJ testified on direct that
he asked Appellant if he was recording the conversation and Appellant replied,
“[y]es.”
16Col SJ did not testify on direct that he either asked or ordered Appellant to stay in
the room.
17 Col SJ had testified about Appellant not calling him “sir” during the 16 August
2017 meeting, not the 6 July 2017 meeting. Trial defense counsel argued Col SJ’s tes-
timony about the 16 August 2017 meeting meant Appellant had never before called
Col SJ “sir,” to include during the 6 July 2017.
18Mil. R. Evid. 611(b) pertains to the scope of cross-examination. The rule does not
advance Appellant’s argument.




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                    United States v. Mote, No. ACM 39462


shortcomings with regard to the quality or content of the audio recording, in-
cluding its source.” After the military judge proposed a limiting instruction,
trial defense counsel asked the military judge to
       . . . augment that instruction with also the 613(b), not just for
       bias, but also you make something along the lines of,
       “[m]embers, you may consider this for the purposes of extrinsic
       evidence of a prior inconsistent statement” and then kind of the
       normal balancing language, “To the extent you believe this is
       inconsistent with [Col SJ’s] testimony on the stand is, you
       know, something for you to decide,” and then all the other kind
       of warning [sic], consider the source and where it came from
       when making that determination.
    From there, trial defense counsel went on to argue the recording was not
hearsay under Mil. R. Evid. 801(d)(1)(A) but was a prior inconsistent state-
ment. Trial counsel pointed out that rule was inapplicable due to the fact the
statements in the recording had not been given under penalty of perjury. Tri-
al defense counsel then asserted the Defense was not offering the recording
for the truth of the matter asserted, but to impeach Col SJ “and expose the
prior inconsistent statement,” arguing the recording was admissible to show
bias under Mil. R. Evid. 608(c) and as extrinsic evidence of a prior incon-
sistent statement under Mil. R. Evid. 613(b).
    During this discussion about the admissibility of the recording, trial de-
fense counsel interjected, “[s]o just to preview the way ahead, we’re going to
talk about [Col SJ’s] testimony today, going to give him the opportunity to—
confront him with what I think it will show, give him the opportunity to ex-
plain or deny, and then hit ‘play.’”
   In the end, the military judge reiterated the recording could not be used
as extrinsic evidence of a prior inconsistent statement because it was hear-
say, but that it could be used to show Col SJ’s bias, prejudice, or motive to
misrepresent under Mil. R. Evid. 608(c).
    In response to this ruling, trial counsel argued the Government had not
had the opportunity to analyze the recording, leading the military judge to
propose adding this line to his instruction: “The content of the recording has
not been authenticated by the Government.” When asked if there were any
objections to that instruction, trial defense counsel said, “Our objection is
simply that it does not include the 613 language that we requested. Other-
wise, no objection, Your Honor. But we’ve previously stated our reasons.”
    Col SJ was called back to the stand, and trial defense counsel commenced
his cross-examination, including this exchange:
       Q. . . . And at that point you said, “This is a little strange.”

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                    United States v. Mote, No. ACM 39462


       A. In my mind, yes, I was thinking this was really strange.
       Q. Got it. So your testimony now is it was in your mind; you
       did not verbalize it?
       A. I—again, I’m not going to recall specifically that moment in
       time. In my mind is what I was thinking this was strange. I did
       say, “These are off-topic questions.” I says [sic] “I have no idea
       what transracial means.”
       Q. And, sir, my question wasn’t asking you to—it was just ask-
       ing to recall your testimony from this morning, and I believe
       your testimony this morning was you said at this point, “This is
       strange.”
       A. I—
       Q. Did you say that?
       A. Again, it—we are talking about multiple conversations, and
       I’m sorry that I keep bringing this up. Yes, I probably just said
       that what you just said.
    Trial defense counsel later asked Col SJ whether Appellant called him
“sir” at least four times during the 6 July 2017 meeting—Col SJ answered,
“no.” Trial defense counsel then asked, “He didn’t yell; it was actually you
that yelled, right?” Col SJ answered, “No. I disagree with that also.” At that
point, trial defense counsel said he was ready to play the recording, and the
military judge gave the members the following instruction:
       You are about to hear an audio recording of the conversation
       between the accused and [Col SJ] on 6 July 2017. This conver-
       sation was recorded by the accused. The content of the record-
       ing has not been authenticated by the Government. You can
       consider this audio recording for the limited purpose of its ten-
       dency, if any, to show bias, prejudice, or any motive to misrep-
       resent on the part of [Col SJ] as it specifically relates to his tes-
       timony describing that meeting on 6 July 2017. You may not
       consider this audio recording for any other purpose.
Trial defense counsel proceeded to play the recording in its entirety for the
members. Appellant did not offer the recording itself into evidence at any
point during the trial.
    After the Defense rested, the military judge held an Article 39(a) hearing
to discuss findings instructions. Regarding the recording, trial defense coun-
sel argued Col SJ had “adopted” the recording, and therefore the Defense
“should get the prior inconsistent testimony language and be able to ar-


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                    United States v. Mote, No. ACM 39462


gue . . . prior inconsistent [statement]. Nothing further on that one.” The mil-
itary judge explained the recording was played for the members “for the sole
purpose of impeaching [Col SJ]. It wasn’t offered for the truth contained with-
in it. It wasn’t offered . . . as substantive evidence. It was simply used as im-
peachment evidence.” The military judge continued, “It was only admitted for
the limited purpose of its tendency, if any, to show bias, prejudice, or motive
to misrepresent on the part of [Col SJ], and that’s the limitation on that par-
ticular evidence.” During his instructions on findings, the military judge re-
peated the instruction about the audio recording he had given the members
when the recording was played with a slight modification: he instructed that
the recording had “not been verified or authenticated by the Government,”
where he had earlier only stated it had “not been authenticated.” Appellant
did not object to this change.
    On appeal, Appellant argues a proper foundation was laid for the record-
ing to be admitted as “extrinsic evidence of a prior inconsistent statement for
impeachment purposes,” and that the military judge abused his discretion
“when he ruled that only statements that were made under oath could be
used as extrinsic evidence for impeachment purposes.” Appellant argues “the
military judge should have allowed defense counsel to . . . play the portion of
the audio that impeached the specific area of Col SJ’s testimony,” instead of
“forcing defense counsel to play the entire audio” and then giving “an inaccu-
rate and confusing instruction to the members.” Appellant further avers trial
defense counsel “did not seek to admit the audio recording as substantive ev-
idence,” but to “demonstrate that [Col SJ’s] memory of the events was inaccu-
rate.” Appellant argues his counsel was thereby deprived of the ability to ar-
gue to the members that Col SJ’s memory of the meeting was inaccurate, be-
cause the recording could not be used as “impeachment evidence.” This osten-
sibly deprived Appellant of the ability to attack Col SJ’s “perception and rec-
ollection of Appellant’s statements and demeanor” during the meeting and
subsequent meetings.
   Beyond the admission of the recording, Appellant argues the military
judge erred when he instructed the members that the Government had not
verified or authenticated the recording, thereby suggesting to the members
the recording should be given less weight than other evidence.
    In short, the theory Appellant now advances is that trial defense counsel
should have been allowed to play only selected portions of the recording dur-
ing Col SJ’s cross-examination; statements contained in those portions of the
recording should have been admitted as extrinsic evidence of prior incon-
sistent statements, but not as substantive evidence; and the military judge
should not have advised the members that the recording had not been veri-
fied or authenticated by the Government.


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                    United States v. Mote, No. ACM 39462


   2. Law
    When an appellant fails to object at trial to the admission or exclusion of
evidence, he forfeits appellate review unless he can demonstrate plain error.
United States v. Eslinger, 70 M.J. 193, 197 (C.A.A.F. 2011). Under a plain er-
ror analysis, an appellant must demonstrate that “(1) there was error; (2) the
error was plain or obvious; and (3) the error materially prejudiced a substan-
tial right of the [appellant].” United States v. Payne, 73 M.J. 19, 23 (C.A.A.F.
2014) (quoting United States v. Tunstall, 72 M.J. 191, 193–94 (C.A.A.F.
2013)).
    We review a military judge’s decision to admit evidence for abuse of dis-
cretion. United States v. Jorell, 73 M.J. 878, 882 (A.F. Ct. Crim. App. 2014)
(quoting United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)). “A mili-
tary judge abuses his discretion when his findings of fact are clearly errone-
ous, when he is incorrect about the applicable law, or when he improperly
applies the law.” United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004).
“The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be ‘arbitrary, fanciful, clear-
ly unreasonable, or clearly erroneous.’” White, 69 M.J. 236, 239 (C.A.A.F.
2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).
    We review the adequacy of a military judge’s instructions de novo. United
States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006). If an accused fails to
make an adequate request for an instruction or object to a proposed instruc-
tion, we review for plain error. Id. “[M]erely requesting an instruction is or-
dinarily not sufficient to preserve a claim of error . . . . There must be an ob-
jection no later than after the instructions are given and before the court is
closed for deliberations, stating that the instructions did not adequately cover
the matters raised in the requested instruction.” United States v. Maxwell, 45
M.J. 406, 426 (C.A.A.F. 1996) (citing R.C.M. 920(f)) (additional citations omit-
ted).
    Under Mil. R. Evid. 608(c), evidence of bias, prejudice, or any motive to
misrepresent may be admitted, whether through witness testimony or extrin-
sic evidence. United States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006). Expos-
ing “a witness’ motivation in testifying is a proper and important function of
the constitutionally protected right of cross-examination.” United States v.
Collier, 67 M.J. 347, 352 (C.A.A.F. 2009) (quoting Davis v. Alaska, 415 U.S.
308, 316–17 (1974)). This right is not unconstrained, and the relevant ques-
tion is whether a witness’ motivation for testifying has been exposed. Id. (cit-
ing United States v. Carruthers, 64 M.J. 340, 344 (C.A.A.F. 2007)).
    Mil. R. Evid. 613(b) permits extrinsic evidence of a witness’ prior incon-
sistent statement once the witness is given the opportunity to explain or deny


                                       12
                    United States v. Mote, No. ACM 39462


the statement. The impeachment power of a prior inconsistent statement
arises from the conflict between a witness’ statements. United States v.
Damatta-Olivera, 37 M.J. 474, 477 (C.A.A.F. 1993). “There must of course be
a real inconsistency between the two assertions of the witness. The purpose is
to induce the tribunal to discard the one statement because the witness had
also made another statement which cannot at the same time be true.” Id. at
477–78 (quoting 3A John H. Wigmore, Evidence § 1040 at 1048 (Chadbourne
rev. 1970)).
   3. Analysis
    We turn first to Appellant’s argument under Mil. R. Evid. 613(b). As a
foundational matter, Appellant has failed to demonstrate Col SJ made any
statement in the recording inconsistent with his testimony at Appellant’s tri-
al. Mil. R. Evid. 613(b) requires two assertions by the same witness that are
inconsistent. Col SJ testified about the tone of the meeting as well as his and
Appellant’s demeanor. By its terms, Mil. R. Evid. 613(b) permits the im-
peachment of a witness with that witness’ prior statement and not simply
any evidence that is contrary to the witness’ in-court testimony. While the
recording may depict a different tone and a different demeanor, such differ-
ences hardly amount to statements by Col SJ inconsistent with his in-court
testimony.
    Other areas of testimony that Appellant argues are available for prior-
inconsistent-statement impeachment (e.g., whether Appellant used the word
“sir,” whether Appellant accused Col SJ of endorsing child pornography, and
whether Appellant equivocated when asked if he was recording the meeting)
are Appellant’s out-of-court statements, not Col SJ’s. Mil. R. Evid. 613(b) ad-
dresses the witness’ prior statements, not prior statements of others. The
closest Appellant comes to identifying evidence which might fall within the
ambit of Mil. R. Evid. 613(b) is Appellant’s argument that Col SJ testified he
said “this is a little strange” during the meeting and that Col SJ tried to ex-
plain that his order to turn off the phone was not illegal, when there is no ev-
idence of either on the recording. Appellant’s argument here fails precisely
because those statements do not appear in the recording. In other words,
nothing said by Col SJ in his prior statement—that is, the recording—is in-
consistent with his trial testimony. Without first demonstrating prior incon-
sistent statements were made by Col SJ, Mil. R. Evid. 613(b) is unavailable to
Appellant. The military judge did not abuse his discretion by declining to
admit the recording in evidence under Mil. R. Evid. 613(b).
    During the discussion of this evidence, the military judge and counsel con-
flated the question of whether the recording was hearsay or not with the
question of its admissibility as extrinsic evidence of a prior inconsistent
statement. As the recording was inadmissible under Mil. R. Evid. 613(b), a

                                      13
                    United States v. Mote, No. ACM 39462


hearsay determination was premature. Whether or not the recording
amounted to hearsay would have determined whether it could be admitted as
substantive evidence, something Appellant avers on appeal he never wanted
to do.
    Appellant’s complaint that he should have been permitted to play only
portions of the recording, rather than the entire recording, is being raised for
the first time on appeal. At trial, trial defense counsel never indicated a pref-
erence to play only excerpts from the recording. Rather, trial defense counsel
said they wanted to “use” the recording during cross-examination. When trial
defense counsel first disclosed the existence of the recording, the military
judge said that trial defense counsel would not be allowed “to play that re-
cording from start to finish,” but would be allowed to potentially use “snip-
pets of the audio to demonstrate the inconsistency.” Shortly thereafter, trial
defense counsel explained they intended to question Col SJ, “and then hit
play.” Trial defense counsel never indicated they wanted to play only portions
of the recording, nor did they object to the military judge’s ruling with respect
to the quantity of the recording that would be played. Notably, it was the mil-
itary judge who first raised the prospect of trial defense counsel playing only
“snippets” of the recording—a position abandoned in his ultimate ruling in
which he said the Defense “is permitted to play the recording in its entirety.”
We find no evidence in the record of trial supporting Appellant’s contention of
the military judge “forcing” trial defense counsel to play the entire recording.
By the very terms of his ruling, the military judge “permitted” the Defense to
play it. To the extent trial defense counsel believed the military judge fore-
closed the opportunity to play only portions of the recording, trial defense
counsel never objected to such. In fact, trial defense counsel never even men-
tioned a desire to only play portions of the recording.
    Due to the absence of an objection at trial (or even a request), Appellant
forfeited this issue, and we will only take corrective action in the event of
plain error. On appeal, Appellant has failed to provide either legal support or
a cogent argument for finding error on the military judge’s part with respect
to the length of recording that could be played. Appellant has not explained
why he should have been permitted to introduce only selected statements
from the larger recording into evidence or how he would have been able to
show that Col SJ did not make certain statements during the meeting with-
out playing the whole recording. Even assuming the military judge required
trial defense counsel to play the entire recording—which the record of trial
proceedings does not support—we would find no error in such a ruling on the
facts presented here, much less plain error. Indeed, playing only selected por-
tions of the recording in order to rebut Col SJ’s description of the tenor of the
meeting would have been misleading and run a substantial risk of confusing
the members.

                                       14
                      United States v. Mote, No. ACM 39462


    Regarding Appellant’s argument the military judge erred when he in-
structed the members that “the content of the recording has not been verified
or authenticated by the Government,” trial defense counsel never objected to
this portion of the instruction. When the military judge advised the parties of
his proposed instruction before the recording was played and asked if either
party objected, trial defense counsel said, “[o]ur objection is simply that it
does not include the 613 language that we requested. Otherwise, no objection,
Your Honor.” The parties revisited the instruction prior to the military judge
giving the members instructions on findings, and trial defense counsel again
focused his objection on “the prior inconsistent testimony language,” telling
the military judge, “[n]othing further on that one.” As a result, any objection
to the “verified or authenticated” portion of the instruction has been forfeited,
and we review for plain error.
    Appellant disclosed the existence and his possession of the recording to
trial counsel for the first time mid-trial at the conclusion of Col SJ’s direct
testimony. Trial defense counsel conceded the recording had not been provid-
ed to trial counsel in discovery despite a government discovery request and
justified the non-disclosure on tactical grounds. On appeal, Appellant argues
the recording need not have been disclosed pretrial because it was “rebuttal
evidence”—a position that is at odds with Appellant’s use of the recording
during the Government’s case in chief as well as trial defense counsel’s stated
tactical reason for not disclosing the recording. 19 Faced with the apparent
discovery violation, the military judge had a variety of remedies available, up
to and including excluding the recording entirely. R.C.M. 701(g)(3); United
States v. Pomarleau, 57 M.J. 351, 361–62 (C.A.A.F. 2002). His instruction
that the recording “had not been verified or authenticated by the Govern-
ment” was an accurate statement of fact, and it balanced the Government’s
inability to examine the evidence with Appellant’s interest in playing the re-
cording for the members to counter Col SJ’s testimony. The military judge’s
instruction, given without objection, did not amount to plain error. Our con-
clusion is bolstered by the military judge’s instruction to the members that
“the final determination as to the weight or significance of the evidence and
the credibility of the witnesses in this case rests solely upon you.”


19 We find it difficult to accept the premise that Appellant did not formulate the plan
to use the recording at trial prior to Col SJ’s direct testimony. Col SJ testified at
length about his recollection of the recorded meeting during a preliminary hearing
some five months prior to trial, testimony which was reduced to writing and which
was submitted to the military judge at an Article 39(a) hearing three weeks before
trial on the merits commenced. Col SJ’s description of the meeting was squarely a
critical issue for trial.




                                          15
                     United States v. Mote, No. ACM 39462


    The military judge permitted the recording to be played under Mil. R.
Evid. 608(c), which allows evidence of bias, prejudice, or any motive to mis-
represent on behalf of the witness. As such, Appellant was free to point to in-
consistencies between the recording and Col SJ’s testimony and to argue Col
SJ’s testimony was not credible under the theory he was biased against Ap-
pellant or had a motive to provide false testimony against Appellant. The mil-
itary judge further permitted Appellant to use the recording to contradict Col
SJ’s testimony regarding Appellant’s conduct during the meeting and for “any
other relevant impeachment purpose under Mil. R. Evid. 608(c) based on the
evidence as perceived by the members.” Despite his objections on appeal, Ap-
pellant was given a wide berth to impeach Col SJ with the recording, and we
perceive no harm to Appellant’s case arising from the military judge’s rulings
and instructions regarding the recording.
    We note that had trial defense counsel disclosed the recording prior to tri-
al and sought a preliminary ruling on its admissibility, many of Appellant’s
concerns surrounding the recording might have been more deliberatively ad-
dressed before trial. See Analysis of R.C.M. 701, Manual for Courts-Martial,
United States (2016 ed.), App. 21 at A21–31.
B. Admission of Records of Appellant’s Uncharged Misconduct
    In his third assignment of error, Appellant contends the military judge
erred by admitting three prosecution exhibits over defense objection. The ex-
hibit consist of: (1) a letter of admonishment Appellant received from Col SJ
in March 2016 for sending a disrespectful email to his wing commander; (2) a
record of Appellant’s nonjudicial punishment imposed by Maj Gen SJ in Jan-
uary 2017 for sending disrespectful emails to Col SJ; and (3) the letter of rep-
rimand Appellant received from Col SJ on 9 August 2017 for sending a disre-
spectful email to the Air Force Sustainment Center commander’s executive
officer. Each exhibit includes Appellant’s written response.
    We provide a more full exposition of the evolution of this issue below, but
its basic genesis is rooted in Appellant’s attempt to establish a mistake-of-law
defense. Appellant’s theory was that his statements in the charged offenses
were protected communications under the Military Whistleblower Protection
Act, and he was therefore immune from prosecution for having made disre-
spectful comments within those communications. 20 The military judge admit-


2010 U.S.C. § 1034. The act, in relevant part, prohibits retaliatory personnel actions
against a military member for making or preparing covered communications to a
member of Congress, an Inspector General, or person in the member’s chain of com-
mand. Covered communications include those in which the member complains of vio-
(Footnote continues on next page)


                                         16
                      United States v. Mote, No. ACM 39462


ted the three exhibits to rebut Appellant’s testimony by demonstrating Appel-
lant was on notice his disrespectful communications were not protected by
the Act. After the rebuttal case and the close of the evidence, the military
judge determined the Defense had failed to establish a basis for a mistake-of-
law defense, and he denied the Defense’s request to instruct the members on
the defense. On appeal, Appellant argues that his own opinion as to whether
his communications were disrespectful was not a matter subject to rebuttal
and the exhibits should not have been admitted as such. Alternatively, Appel-
lant argues the military judge’s rejection of the mistake-of-law defense ren-
dered Appellant’s understanding of the Act irrelevant, and therefore the ex-
hibits were not relevant to his court-martial and should not have been admit-
ted.
   1. Additional Background
    During his direct examination, Appellant testified his 14 August 2017
email about the recording policy contained “some pretty strong language” and
that he used such language because he “thought it was a serious issue and
that it deserved serious language.” He testified he did not intend to be disre-
spectful in the email, and that he courtesy copied the entire directorate so
they knew someone was standing up for what Appellant perceived to be an
“infringement on personal rights affect[ing] all of those people.” Trial defense
counsel then asked Appellant whether he had been educated on the Military
Whistleblower Protection Act, to which trial counsel objected.
    Trial defense counsel proffered that Appellant was going to testify he be-
lieved communications made under the Act could not be used against him in
a later adverse action. Trial defense counsel argued Appellant’s “mistaken
belief” about the Act’s operation supported a mistake-of-law defense. Overrul-
ing trial counsel’s objection, the military judge told the parties that Appellant
was permitted to testify what motivated or informed his actions, but whether




lations of law or regulations or an abuse of authority. Air Force Instruction 90-301,
Inspector General Complaints Resolution (27 Aug. 2015), exempts “unlawful commu-
nications” from the Act’s protections, to include “statements made under circum-
stances disrespectful to higher authorities.” The Supreme Court has held military
officials’ authority to preserve morale and good order and discipline is paramount to
the legislative purposes of 10 U.S.C. § 1034. Brown v. Glines, 444 U.S. 348, 360
(1980) (prohibition against circulating petitions without prior approval does not run
afoul of the act due to the threat such petitions pose to military discipline). Thus, a
military member’s invocation of 10 U.S.C. § 1034 does not protect statements that
otherwise violate Article 89, UCMJ.




                                          17
                      United States v. Mote, No. ACM 39462


or not that amounted to a legal defense under a mistake-of-law theory “re-
main[ed] to be seen.”
    Appellant proceeded to testify that he learned of the Military Whistle-
blower Protection Act from a member of his command’s Inspector General’s
Office. Appellant said he understood the Act to protect communications that
were “sincerely believed to be true and that alleged a violation of a law or
regulation, provided that they were reported—that the communications were
made to either an [Inspector General] or someone in the chain of command.”
Appellant then explained that he relied on this understanding of the law
when he sent his 14 August 2017 email.
    In general, Appellant characterized himself as being professional and re-
spectful during his interactions with Col SJ, although he admitted being
“stern,” “direct,” and using an elevated voice, “louder than what [Appellant]
would call a conversational tone” with Col SJ.
    Turning to his Article 138 complaint against Maj Gen SJ, Appellant testi-
fied he did not intend to be disrespectful in his complaint or to harass the
general—rather, Appellant said his intent to was “to use language of signifi-
cant severity to get someone’s attention to get help, to get relief from the is-
sues [Appellant] was dealing with” and to bring issues to Maj Gen SJ’s atten-
tion. 21 At the conclusion of his direct examination, Appellant said he was not
guilty of any of the charged offenses, and the court recessed for the evening,
during which time trial defense counsel sent the military judge a proposed
findings instruction on the mistake-of-law defense.
   The next morning, prior to cross-examining Appellant, trial counsel
sought permission to ask Appellant about his letters of admonishment and


21 Among other things, Appellant wrote to Maj Gen SJ: “I trust that the hardships
and embarrassment that fall upon you as a result of these disciplinary measures will
bring about sincere remorse and repentance and that I will, in the near future, hear
that your character as a civilian is much improved over your character as an officer.”
In discussing forfeitures Appellant had been required to pay as part of nonjudicial
punishment issued by Maj Gen SJ, Appellant told Maj Gen SJ: “when the Directorate
was in financial straits and you came and asked me for several thousand dollars, I
agreed to give you the money . . . [j]ust to clear up the financials, your personal debts
to me have been reimbursed many times over again by concerned citizens wishing to
alleviate you from any mental anguish you may be suffering from inability to repay,
so let not your heart be troubled on that issue.” Regarding Appellant’s written re-
sponse to the nonjudicial punishment, Appellant told Maj Gen SJ: “When you were in
legal trouble and having difficulty understanding federal law, I took time out of my
personal schedule to educate you and correct your legal deficiencies.”




                                           18
                    United States v. Mote, No. ACM 39462


reprimand and his nonjudicial punishment for being disrespectful. Trial
counsel argued that Appellant cited the Military Whistleblower Protection
Act in his responses to each of those three actions, yet each action was ulti-
mately upheld, which served as evidence that Appellant was aware that the
Act did not, in fact, inoculate him from punishment for disrespectful commu-
nications. Trial counsel asserted the proposed cross-examination would go to
Appellant’s credibility, perceptions, and bias, as well as to rebut Appellant’s
suggestion that he did not understand the impropriety of his conduct. Finally,
trial counsel argued Appellant had claimed that he only used “strong lan-
guage” in the Article 138 complaint and the 14 August 2017 email to empha-
size his perception of the severity of the issue at hand, when—in fact—
Appellant had records in his personnel file of being admonished, reprimand-
ed, and nonjudicially punished for making similar statements on various oth-
er occasions.
    The military judge determined Appellant had left the impression with the
members that he “mistakenly believed that he had the authority to say any-
thing he wanted in those emails and could not be punished for it . . . includ-
ing disrespectful language, to a superior commissioned officer,” in an effort to
mount a mistake-of-law defense. In ruling trial counsel could cross-examine
Appellant on the three records, the military judge found they were evidence
that Appellant was on notice that disrespectful language was not protected
by the Military Whistleblower Protection Act prior to him sending his “re-
cording policy” email and filing his complaint against Maj Gen SJ. The mili-
tary judge deferred ruling on whether trial counsel could admit the documen-
tary evidence of the records as exhibits in rebuttal until after the Defense’s
case in chief.
    During cross-examination, Appellant testified he believed his 14 August
2017 email was a protected communication under the Military Whistleblower
Protection Act. He maintained that he was not on notice that disrespectful
language, as charged in this case, fell outside the protections of the Act, in
spite of his record of prior failed attempts to invoke the Act’s protections.
Throughout Appellant’s testimony, Appellant maintained his conduct was
within the bounds of permissible professional conduct.
   After the completion of Appellant’s testimony, trial counsel sought to ad-
mit the record of nonjudicial punishment and the letters of reprimand and
admonishment. The military judge admitted the records, finding they rebut-
ted Appellant’s claim he was not on notice that the Military Whistleblower
Protection Act did not protect him from punishment for disrespectful conduct.
He ruled, “the entirety of the accused’s testimony was designed to create the
impression that the accused was unaware of certain boundaries and rules re-



                                      19
                    United States v. Mote, No. ACM 39462


garding professional behavior and customs and courtesies, particularly as it
related to [Col SJ] and [Maj Gen SJ],” which the three records also rebutted.
    In considering Mil. R. Evid. 403, the military judge concluded the proba-
tive value of the three exhibits was high, in that they “place[ ] in proper con-
text the previous efforts undertaken by command to correct the accused’s be-
havior and directly rebut[ ] the impression created through his testimony
that he was generally unaware that his conduct or words deviated from
standards.” He concluded the danger of unfair prejudice was low, noting that
Appellant assumed the risk of opening the door to uncharged misconduct
when he elected to testify. He found the evidence would not confuse the is-
sues or mislead the members, but would assist them by directly rebutting
Appellant’s testimony. In admitting the exhibits, the military judge directed
references to Appellant’s attempt to establish a “white heritage month” and
his complaints about “anti-white” policies be redacted.
   Prior to closing the court for deliberations, the military judge instructed
the members:
       You may consider evidence that the accused received an Article
       15, a letter of admonishment and a letter of reprimand for en-
       gaging in disrespectful conduct for the limited purpose of its
       tendency, if any, to rebut the contention raised by the accused
       that his alleged behavior in the offenses charged was the result
       of ignorance or mistake and to rebut the issue of whether the
       accused mistakenly believed that his conduct was protected
       under the Military Whistleblower Protection Act. You may not
       consider this evidence for any other purpose and you may not
       conclude from this evidence that the accused is a bad person or
       has general criminal tendencies and that he therefore commit-
       ted the offenses charged.
    After the close of the evidence, the military judge denied trial defense
counsel’s request for an instruction on “ignorance or mistake of law” for Spec-
ifications 3 and 4 of Charge I regarding Appellant’s alleged reliance on the
Military Whistleblower Protection Act. Focusing on the discussion to R.C.M.
916(l), the military judge explained ignorance or mistake of law “may be a
defense when the mistake results from the reliance on the decision or pro-
nouncement of an authorized public official or agency.” Although Appellant
had been told about the Act by a member of the Inspector General’s Office,
the military judge found Appellant had not been advised that otherwise crim-
inal conduct was immune from command action simply because the conduct
fell within a complaint. Reasoning that the Appellant did not rely on a deci-
sion or pronouncement of a public official or agency, but rather that he simply



                                      20
                    United States v. Mote, No. ACM 39462


concluded on his own the Act provided blanket protection for his conduct, the
military judge found the defense of mistake of law inapplicable.
   2. Law
    As noted above, a military judge’s ruling to admit or exclude evidence will
not be disturbed except for a clear abuse of discretion. Military judges are af-
forded wide latitude in controlling the presentation of rebuttal evidence.
United States v. Gittens, 36 M.J. 594, 598 (A.F.C.M.R. 1992). Otherwise in-
admissible evidence may be admitted as rebuttal evidence when the opposing
party presents potentially misleading testimony, and thereby opens the door
to evidence that corrects the record. See, e.g., United States v. McIntosh, No.
ACM 37977, 2014 CCA LEXIS 29, at *20 (A.F. Ct. Crim. App. 17 Jan. 2014)
(unpub. op.).
    The purpose of rebuttal evidence is “to explain, repel, counteract or dis-
prove the evidence introduced by the opposing party.” United States v. Wirth,
18 M.J. 214, 218 (C.M.A. 1984) (quoting United States v. Shaw, 26 C.M.R. 47,
51 (C.M.A. 1958) (Ferguson, J., dissenting)). The scope of rebuttal evidence is
defined by evidence introduced by the other party. United States v. Banks, 36
M.J. 150, 166 (C.M.A. 1992); United States v. Hallum, 31 M.J. 254, 255–56
(C.M.A. 1990).
    When an accused chooses to testify under oath, he assumes certain risks,
to include having the truthfulness of his answers tested on cross-examination
or countered by evidence in rebuttal as well as being impeached by contradic-
tion. See, e.g., United States v. Swift, 53 M.J. 439, 450 (C.A.A.F. 2000); United
States v. Penrose, 48 C.M.R. 173, 175 (A.F.C.M.R. 1974). A testifying accused
is “subject to impeachment just like any other witness.” United States v.
Stroh, 46 M.J. 643, 648 (A.F. Ct. Crim. App. 1997). In impeaching an accused
who has elected to testify, the Government typically may not use extrinsic
evidence, unless such evidence shows bias, prejudice, or a motive to misrep-
resent, or when trial counsel seeks to impeach the accused by contradiction.
Id. Impeachment by contradiction through admission of extrinsic evidence is
permissible when an accused denies committing certain misconduct or volun-
teers a broad denial in response to a narrow cross-examination question. Id.
The purpose of impeachment by contradiction is to demonstrate “the contrary
of a witness’ asserted fact, so as to raise an inference of a general defective
trustworthiness.” United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983).
    Ordinarily, impeachment by contradiction is an appropriate tool to con-
tradict a witness’ testimony only on non-collateral matters. United States v.
Langhorne, 77 M.J. 547, 556 (A.F. Ct. Crim. App. 2017) (citing Banker, 15
M.J. at 211). Collateral matters, however, may be impeached by contradiction
via extrinsic evidence when the collateral matter is raised during direct ex-


                                       21
                    United States v. Mote, No. ACM 39462


amination. Id. “Evidence of a witness’s bias, prejudice, or motive to misrepre-
sent is never collateral and may be proven by extrinsic evidence.” Id.
   3. Analysis
    Appellant, not the Government, first raised the Military Whistleblower
Protection Act during his direct examination in an attempt to establish a
mistake-of-law defense. Indeed, Appellant introduced this evidence over trial
counsel’s objection. During the discussion regarding the objection, the mili-
tary judge specifically highlighted that trial counsel would be able to rebut
Appellant’s testimony about the law through cross-examination “or even wit-
ness testimony.” Appellant then proceeded to portray himself as being una-
ware of the fact he could be punished for making disrespectful statements in
documents he styled as complaints under the Military Whistleblower Protec-
tion Act. By doing so, Appellant invited the Government to test the accuracy
of this portrayal.
    Even after being confronted with three prior instances in which Appellant
was counseled for disrespectful statements in which he tried to invoke the
Act, Appellant maintained he was not aware disrespectful language was un-
protected by the Act. In adhering to this position during cross-examination,
Appellant paved the way for the Government to rebut his testimony by offer-
ing extrinsic evidence that counteracted the evidence Appellant himself of-
fered.
    The exhibits admitted against Appellant were unquestionably prejudicial
in that they directly undercut his attempt to raise a mistake-of-law defense.
After Appellant’s three previous failed attempts to invoke the Military Whis-
tleblower Protection Act to shield him from the consequences of making dis-
respectful statements, there is little room to argue he believed he could en-
gage in more of the same conduct with impunity. The exhibits’ admission was
not, however, unfairly prejudicial in the face of Appellant’s persistent denials
of any impropriety on his part. Had Appellant acknowledged the prior correc-
tive actions put him on notice his conduct was not protected by the Military
Whistleblower Protection Act, the need for the Government to admit the rec-
ords themselves would have been attenuated. Appellant’s testimony, howev-
er, only served to heighten the significance of what Appellant knew or should
have known about the Act. In addition to rebutting Appellant’s claimed reli-
ance on the Act, the exhibits rebutted Appellant’s contention that his conduct
was not disrespectful or that he mistakenly believed he was not being disre-
spectful.
   It was Appellant who first introduced evidence of the Act, and the Gov-
ernment was not required to allow that evidence to go unrebutted in the
hopes the military judge would later rule the mistake-of-law defense inappli-


                                      22
                      United States v. Mote, No. ACM 39462


cable to Appellant’s case. The fact the military judge later determined Appel-
lant had failed to reasonably raise a mistake-of-law defense did not serve to
retroactively strip the Government of its ability to challenge Appellant’s tes-
timony.
    The military judge instructed the members that the three exhibits could
only be used to rebut Appellant’s contentions that he was operating under
ignorance or mistake or that he mistakenly believed the Military Whistle-
blower Protection Act protected his behavior. We presume members follow
instructions given by military judges absent evidence to the contrary. United
States v. Thompson, 63 M.J. 228, 232 (C.A.A.F. 2006). By so instructing the
members, the military judge insulated Appellant from the risk the members
would use this evidence for an improper purpose. The military judge did not
abuse his discretion in admitting the three exhibits.
C. Multiplicity
     1. Additional Background
    Appellant argues Specification 3 of Charge I should be dismissed, as it is
a lesser included offense of the Specification of Charge III, and is therefore
multiplicious. The Specification of Charge III alleges Appellant violated Arti-
cle 133, UCMJ, by engaging in conduct unbecoming an officer and a gentle-
man, while Specification 3 of Charge I alleges he violated Article 89, UCMJ,
by behaving with disrespect toward his superior commissioned officer.
    Both offenses arise from the same course of conduct: Appellant’s 14 Au-
gust 2017 “recording policy” email. The Article 133 violation consists of Ap-
pellant using “insulting and defamatory language about [Col SJ] to other mil-
itary personnel.” In response to a trial defense request for a bill of particu-
lars, the Government indicated the “insulting and defamatory language”
charged in the Article 133 specification is that which is in the 14 August 2017
email. The Article 89 violation alleges Appellant behaved with disrespect to-
ward Col SJ by writing an email and then sending that email “to numerous
other members of the Air Force Nuclear Weapons Center.” The Article 89
specification identifies two specific passages in the email, 22 while the Article
133 specification does not identify any particular language from the email.



22The passages set out in the specification are: (1) that Col SJ “published the record-
ing policy in question, under false pretense of military necessity, as a means of con-
cealing his incompetence and evading accountability for any future misconduct he
may wish to perpetrate against me (and perhaps others),” and (2) “[n]ot only are
these regulations not relevant to an information-security policy, they are not even
(Footnote continues on next page)


                                          23
                      United States v. Mote, No. ACM 39462


    At trial, Appellant moved the military judge to dismiss the Article 89
specification, alleging it was multiplicious with the Article 133 specification
and amounted to an unreasonable multiplication of charges. The Government
explained that the Article 89 offense was meant to capture Appellant’s disre-
spectful conduct towards Col SJ by sending the email to him, while the Arti-
cle 133 offense was meant to capture Appellant’s act of disseminating that
language to the military members of the directorate. 23
    The military judge ruled these two offenses were not multiplicious or an
unreasonable multiplication of charges for findings, but they did amount to
an unreasonable multiplication of charges for sentencing insofar as the speci-
fications “focus on essentially the same criminal act.” As a corrective meas-
ure, the military judge merged the two specifications for sentencing purposes.
     2. Law
    We review claims of multiplicity de novo. United States v. Paxton, 64 M.J.
484, 490 (C.A.A.F. 2007). “Multiplicity, a constitutional violation under the
Double Jeopardy Clause, occurs if a court, ‘contrary to the intent of Congress,
imposes multiple convictions and punishments under different statutes for
the same act or course of conduct.’” Id. (citing United States v. Teters, 37 M.J.
370, 373 (C.M.A. 1993)). We employ the separate elements test set out in
Blockburger v. United States, 284 U.S. 299 (1932) to determine congressional
intent regarding whether multiple convictions may be had for a single act or
course of conduct. United States v. Roderick, 62 M.J. 425, 432 (C.A.A.F.
2006). Under this test, specifications are not multiplicious as long as each of-
fense “requires proof of an element or fact which the other does not.” United
States v. Dillon, 61 M.J. 221, 223 (C.A.A.F. 2005) (citing Brown v. Ohio, 432
U.S. 161, 168, (1977)). The analysis focuses on “the elements of the statutes
violated and not to the pleadings or proof of these offenses.” United States v.


relevant to [Col SJ] himself because he is not a commander in any sense of the word.
He holds a mere staff billet.”
23 Prior to trial, the staff judge advocate sent trial defense counsel an email further
explaining this point, writing: “The [Article] 89 and [Article 133] specifications are
legally distinct even though they arise from the same action of sending an email. The
violation of [Article] 89 is based on [Appellant] being disrespectful toward Col [SJ] for
sending an email directly to him criticizing his policies and undermining his ability
to command a unit. In this specification, Col [SJ] is a victim and the criminal act is
how [Appellant] spoke (via email) to him. The violation of [Article] 133 is not based
on disrespect directly toward Col [SJ], but rather on using insulting language about a
superior commissioned officer to other military members (who received the email)
which is explicitly prohibited under [Article] 133.”




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                             United States v. Mote, No. ACM 39462


Coleman, __ M.J. __, No. 19-0087, 2019 CAAF LEXIS 504, at *4 (C.A.A.F. 10
Jul. 2019) (quoting Teters, 37 M.J. at 377). As a result, “a strict facial compar-
ison of the elements of the charged offenses” is called for. Id. Charging both a
greater offense and a lesser included offense would ordinarily fail this test, as
a lesser included offense—by definition—includes every element of the great-
er offense. See, e.g., United States v. Jones, 68 M.J. 465, 470–71 (C.A.A.F.
2010).
    We employ a three-step analysis to assess whether charges are multi-
plicious: (1) we determine whether the charges are based on separate acts; (2)
if not, we determine whether Congress has manifested “an overt expression of
legislative intent” regarding whether the two charges are multiplicious; and
(3) if there is no overt expression, whether we can infer Congress’s intent by
determining whether each charge requires proof of an element the other does
not. Coleman, __ M.J. at __, 2019 CAAF LEXIS 504 at *4–5 (quoting Teters,
37 M.J. at 376). If each charge requires a unique element of proof, we infer
that Congress intended to permit an accused to be charged and punished un-
der each charge, even when the charges criminalize the same overt act. Id.
      3. Analysis
    As charged in this case, the elements of the Article 89, UCMJ, violation
are: (1) Appellant wrote and sent an email to members of the Air Force Nu-
clear Weapons Center concerning a particular officer (Col SJ); (2) the behav-
ior was directed toward that officer; (3) that officer was Appellant’s superior
commissioned officer; (4) Appellant knew that officer was his superior com-
missioned officer; and (5) that, under the circumstances, Appellant’s behavior
was disrespectful to that commissioned officer. 24 The elements of the Article
133, UCMJ, violation are: (1) Appellant used insulting and defamatory lan-
guage about Col SJ to other military personnel; and (2) under the circum-
stances, this act constituted conduct unbecoming an officer. 25
    There are only minor differences between the Article 89 and Article 133
specifications. Under the former, Appellant was charged with behaving with
disrespect towards Col SJ by writing certain language in an email and then
sending that email to “numerous other members” of the Air Force Nuclear
Weapons Center. Under the latter, Appellant was charged with using “insult-
ing and defamatory language” (in the same email) about Col SJ to other mili-
tary personnel. In other words, the specifications are different in that the Ar-


24   Manual for Courts-Martial, United States (2016 ed.), pt. IV, ¶ 13(b).
25   Id., pt. IV, ¶ 59(b).




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                    United States v. Mote, No. ACM 39462


ticle 89 specification only addresses two passages in the email; the Article
133 specification limits the audience to just military personnel; and the Arti-
cle 133 specification pertains to “insulting and defamatory language” in the
email. Indisputably, Appellant’s underlying conduct was the same—he wrote
and sent a disrespectful email about Col SJ to the members of his directorate.
    In determining whether these two specifications are multiplicious, we use
the three-part inquiry set out in Coleman and easily dispense with the first
two parts: the specifications were based upon a single act by Appellant, and
there is no overt expression of legislative intent regarding whether the speci-
fications should be viewed as multiplicious. Thus, our resolution of this issue
turns upon the third part—that is, whether each offense requires proof of an
element the other does not. We conclude the specifications are not multi-
plicious in that the Article 133 specification requires proof of conduct unbe-
coming an officer and a gentleman, which the Article 89 specification does
not. The Article 89 specification requires proof that Col SJ was Appellant’s
superior commissioned officer and known by Appellant to be so—elements
not required by the Article 133 offense. This straightforward application of
the Blockburger elements test leads us to determine that the offenses charged
here are not multiplicious.
D. The Alleged Attempted Seizure of Appellant’s Phone
    Appellant argues that Col SJ’s order to leave his phone outside the office
when Appellant was receiving a letter of reprimand on 9 August 2017 was
“tantamount to an illegal seizure order” which Appellant had no duty to obey.
Appellant challenged this order at trial, but the military judge concluded the
order to leave his phone outside Col SJ’s office was lawful. In his ruling, the
military judge explained Col SJ “was justified in refusing to allow a subordi-
nate with a lengthy history of disrespectful conduct to surreptitiously or even
openly record what was an official counseling session involving the service of
[a letter of reprimand], which by definition related directly to the mainte-
nance of good order and discipline.”
    Contrary to Appellant’s suggestion, Col SJ did not attempt to seize Appel-
lant’s phone at the outset of the 9 August 2017 meeting. Rather, Col SJ told
Appellant to leave his phone outside the office so that Appellant would not
record the meeting. Col SJ’s order was lawful and Appellant refused to follow
it. We have reviewed the military judge’s findings of fact and conclusions of
law on this point and find no reason to disturb them on appeal.

                              III. CONCLUSION
    The findings and sentence are correct in law and fact, and no error mate-
rially prejudicial to the substantial rights of Appellant occurred. Articles


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                   United States v. Mote, No. ACM 39462


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


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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