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

                           No. ACM 39194
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                       Thomas G. ARNOLD
         Technical Sergeant (E-6), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 27 June 2018
                      ________________________

Military Judge: Gregory O. Friedland (arraignment); Charles R.
Wiedie, Jr.; Patricia A. Gruen.
Approved sentence: Dishonorable discharge, confinement for 8 years,
and reduction to E-1. Sentence adjudged 29 July 2016 by GCM convened
at Andersen Air Force Base, Guam.
For Appellant: Lieutenant Colonel Nicholas W. McCue, USAF; Major
Patricia Encarnación Miranda, USAF; Brian L. Mizer, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Major Tyler B. Musselman, USAF; Cap-
tain Michael T. Bunnell, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                     United States v. Arnold, No. ACM 39194


HARDING, Senior Judge:
    A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of two specifications of sexual abuse of a child,
his 15-year-old stepdaughter, MB, in violation of Article 120b, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 920b, and one specification of obstruc-
tion of justice in violation of Article 134, UCMJ, 10 U.S.C. § 934. 1 Specifically,
Appellant was found guilty of touching MB’s breast with his hand on divers
occasions; touching MB’s genitalia and breast with his hand and mouth; and
wrongfully endeavoring to influence the actions of MB by giving her money,
lying to MB’s mother (KA) about her whereabouts, and allowing MB to attend
sleepovers in order to prevent MB from reporting the sexual abuse to authori-
ties. The members sentenced Appellant to a dishonorable discharge, confine-
ment for eight years, and reduction to the grade of E-1. The convening author-
ity approved the adjudged sentence but waived the mandatory forfeiture of pay
and allowances for the benefit of Appellant’s dependents.
    Appellant raises 11 issues on appeal: (1) whether a dismissal without prej-
udice was an adequate remedy for an appearance of unlawful command influ-
ence; (2) whether the military judge abused her discretion in excluding evi-
dence of MB’s motive to fabricate under Military Rule of Evidence (Mil. R.
Evid.) 412; (3) whether the charges should be dismissed for outrageous Gov-
ernment conduct and interference with Appellant’s Sixth Amendment right to
counsel; (4) whether Appellant was denied his Sixth Amendment right to
speedy trial; (5) whether the military judge abused her discretion when she
declined to conduct an in camera review of MB’s mental health records; (6)
whether the military judge abused her discretion in admitting a prior state-
ment of MB; (7) whether trial counsel’s comment on Appellant’s exercise of his
constitutional rights was harmless beyond a reasonable doubt; (8) whether Ap-
pellant was prejudiced by ineffective assistance of counsel; (9) whether Appel-
lant is entitled to eight months of confinement credit and, if not, whether this
court should approve no more than six years of confinement pursuant to Article
66(c), UCMJ, 10 U.S.C. § 866; 2 (10) whether Appellant has been denied his


1 Appellant was acquitted of the following offenses alleged by MB: two specifications of
aggravated sexual abuse of a child, in violation of Article 120, UCMJ, 10 U.S.C. § 920,
in effect during the period between 1 October 2007 and 27 June 2012; two specifica-
tions of sexual abuse of a child in violation of Article 120b, UCMJ; and two specifica-
tions of indecent acts with a child in violation of Article 134, UCMJ, in effect during
the period between 1 October 2007 and 27 June 2012.
2We have considered and reject this claim, which neither requires additional analysis
nor warrants relief. See United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).




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                    United States v. Arnold, No. ACM 39194


due process right to timely appellate review; and (11) whether this court’s rule
regarding the filing of pleadings containing sealed materials interferes with
Appellant’s statutory and constitutional rights to assistance of counsel and to
present his defense on direct appeal. 3 We find no prejudicial error and affirm.

                                 I. BACKGROUND
    Appellant, accompanied by his family, was stationed at Andersen Air Force
Base, Guam. In early April 2013, KA overheard her 15-year-old daughter, MB,
whispering over the phone about sneaking out of their home in the middle of
the night to meet her 19-year-old boyfriend, AB. After informing Appellant of
MB’s plan, KA and Appellant decided that Appellant would wait outside the
home and catch MB in the act. AB arrived and parked his vehicle down the
street from Appellant’s home. As AB walked to the driveway to meet MB, Ap-
pellant emerged from the shadows, made his presence known to both AB and
his stepdaughter, and confronted them about MB sneaking out of the house at
night. Appellant asked AB to provide him identification and AB complied. Ap-
pellant then told them their conduct was not appropriate and informed AB he
could call the police due to the age difference between AB and MB. In response,
AB told Appellant to do so and that they [MB and AB] would “just tell [the
police] how much you touch your daughter.”
    Appellant’s demeanor immediately transformed from stern to docile. Ap-
pellant then meekly asked MB what she wanted him to do. MB told Appellant
to lie to KA and tell her that AB had taken MB to a female friend’s house.
Appellant complied and MB departed to spend the night with AB. The next
morning, at MB’s request, Appellant transferred $200 to MB’s account. Appel-
lant then texted MB, “I love you and I don’t want to see our family get hurt. I
am at your disposal.” MB later informed Appellant that she used the $200 to
decorate AB’s apartment. MB again asked Appellant to lie to KA by telling her
that MB was staying at another girlfriend’s house the next night. Appellant
once again lied to KA about their daughter’s whereabouts. Appellant texted
MB, “You have to know I had no idea I made you feel that way. I don’t want to
hurt you. I love you. Can you consider letting me do right by you before you
take the next step?”
    After two days of placating and covering for MB with KA, Appellant told
MB on the third night she could no longer come and go as she pleased. In re-
sponse, MB woke up KA and told her that she was leaving but would not say
why. Instead, MB insisted that Appellant tell KA the reason why MB wanted
to leave. Appellant then told KA that MB was accusing him of abusing her.

3We have considered and reject this claim, which neither requires additional analysis
nor warrants relief. See Matias, 25 M.J. at 363.


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                     United States v. Arnold, No. ACM 39194


After learning of the allegation, KA let MB leave with AB and called Appel-
lant’s first sergeant. A few days later, Appellant was arrested by Guamanian
federal authorities. Appellant was held in a federal confinement facility and
remained there for eight months until the Guamanian authorities declined to
prosecute the case because of MB and KA’s refusal to cooperate and released
Appellant. Subsequently, the Air Force asserted jurisdiction over the alleged
offenses.

                                   II. DISCUSSION
A. Appearance of Unlawful Command Influence
    Charges were originally preferred on 3 February 2014 and investigated at
an Article 32, UCMJ, 10 U.S.C. § 832, hearing on 19 and 20 March 2014. The
convening authority making the disposition decision over these preferred
charges restricted the Article 32 investigating officer (IO) from determining
matters covered by Mil. R. Evid. 412 at the pretrial investigation. The military
judge found this restriction on the IO created an appearance of unlawful com-
mand influence (UCI). The military judge further stated he was “not convinced
beyond a reasonable doubt that the UCI did not affect the pretrial investiga-
tion” of the case. As a remedy for the UCI, the military judge dismissed the
charges without prejudice on 31 July 2014. Months later on 18 November 2014
charges were preferred anew against Appellant. A second Article 32 hearing
was held on 6 March 2015.
    Between the March 2014 and March 2015 hearings, amendments 4 to Arti-
cle 32, UCMJ, had taken effect, which transformed the Article 32 from a pre-
trial investigation into a preliminary hearing, and included the right of a vic-
tim to decline to testify at a preliminary hearing. 5 At the March 2014 hearing,
MB did appear and testify and was subject to substantial cross-examination,
although Appellant’s counsel was not permitted to ask MB about matters cov-
ered by Mil. R. Evid. 412. For the March 2015 hearing, MB exercised her right
and declined to testify. Appellant now argues that, because MB exercised that
right and Appellant lost the opportunity to cross-examine MB on Mil. R. Evid.
412 matters at the March 2015 preliminary hearing, the military judge’s rem-
edy of dismissal proved to be “no remedy at all.” On that basis, Appellant urges




4See The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–
66, sec. 1702, § 832, 127 Stat. 672, 954–58 (2013).
5 Appellant has not asserted that the application in his case of the procedural rules of
a preliminary hearing violated the Ex Post Facto Clause of the United States Consti-
tution. U.S. CONST., Art. 1, § 9.


                                           4
                   United States v. Arnold, No. ACM 39194


us to set aside the findings and sentence and dismiss the charges with preju-
dice. We decline to do so.
    UCI is “the mortal enemy of military justice.” United States v. Gore, 60 M.J.
178, 178 (C.A.A.F. 2004) (quoting United States v. Thomas, 22 M.J. 388, 393
(C.M.A. 1986)). Where it is found to exist, judicial authorities must take those
steps necessary to preserve both the actual and apparent fairness of the crim-
inal proceeding. United States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998);
United States v. Sullivan, 26 M.J. 442, 444 (C.M.A. 1988). The “appearance of
unlawful command influence is as devastating to the military justice system
as the actual manipulation of any given trial.” United States v. Simpson, 58
M.J. 368, 374 (C.A.A.F. 2003) (quoting United States v. Stoneman, 57 M.J. 35,
42–43 (C.A.A.F. 2002)).
    When an appellant asserts appearance of UCI, he initially must show
“some evidence” that UCI occurred. Stoneman, 57 M.J. at 41 (internal quota-
tion marks and citation omitted). This burden on the defense is low, but the
evidence presented must consist of more than “mere allegation or speculation.”
United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013). Once an appellant
presents “some evidence” of UCI, the burden then shifts to the Government to
rebut the allegation. Specifically, the government bears the burden of proving
beyond a reasonable doubt that either the predicate facts proffered by the ap-
pellant do not exist, or the facts as presented do not constitute UCI. Id. If the
government meets its burden, the appellant’s claim of UCI will be deemed to
be without merit and no further analysis will be conducted. See id.
    If the government does not meet its burden of rebutting the allegation at
this initial stage, then the government may next seek to prove beyond a rea-
sonable doubt that the appearance of UCI did not place “an intolerable strain”
upon the public’s perception of the military justice system and that “an objec-
tive, disinterested observer, fully informed of all the facts and circumstances,
would [not] harbor a significant doubt about the fairness of the proceeding.” Id.
(quoting United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)). If the gov-
ernment meets its evidentiary burden at this stage of the analysis, then the
appellant merits no relief on the grounds that there was an appearance of UCI.
See, e.g., United States v. Villareal, 52 M.J. 27, 30–31 (C.A.A.F. 1999) (affirm-
ing the decision of the court below after finding that any appearance of UCI
was cured by the military judge’s actions at court-martial). If the government
does not meet its evidentiary burden, however, courts, trial and appellate, will
fashion an appropriate remedy. Lewis, 63 M.J. at 416.




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                     United States v. Arnold, No. ACM 39194


    Because the conclusion of the military judge that there was an appearance
of UCI is the law of the case, 6 we need neither determine whether Appellant
presented “some evidence” of UCI nor review whether the Government has
demonstrated beyond a reasonable doubt that there was no UCI. We are con-
cerned only with whether the Government has met its burden of demonstrat-
ing, beyond a reasonable doubt, that these proceedings were untainted by the
appearance of UCI. We review this question de novo. See United States v.
Kreutzer, 61 M.J. 293, 299 (C.A.A.F. 2005) (de novo review of whether consti-
tutional error is harmless beyond a reasonable doubt); Villareal, 52 M.J. at 30
(de novo review of issues of UCI). Our review must consider whether the ap-
pearance of UCI was eradicated by the military judge’s remedy of dismissal
without prejudice. We are convinced beyond a reasonable doubt that it was.
    The same military judge who concluded there was an appearance of UCI at
the March 2014 pretrial investigation and dismissed the original charges with-
out prejudice also decided Appellant’s motion to dismiss with prejudice the
charges reviewed in the March 2015 hearing. Thus, the military judge had the
opportunity to assess whether the remedy he chose did in fact remove the ap-
pearance of UCI stemming from the pretrial investigation. The military judge
made detailed findings of fact that we now adopt as our own. Importantly, he
noted that a different convening authority appointed a different officer to con-
duct the March 2015 hearing. Further, the new convening authority did not
place restrictions on the preliminary hearing officer to decide Mil. R. Evid. 412
issues.
    The military judge concluded that the apparent UCI he had previously
found was “extinguished with the dismissal of those charges” and “that appar-
ent UCI did not survive into the new preferred charges.” We agree. In this case,
the “intolerable strain” that had been placed upon the public’s perception of
the military justice system was the specter of a convening authority restricting
the scope of information considered by the IO regardless of its potential mate-
riality to the issues in the case. In doing so, the convening authority appeared
to engage in a partisan effort to protect and promote the interests of the victim
that detracted from the impartiality of the IO. The military judge’s remedy of
dismissal without prejudice resulted in a new convening authority ordering the
second Article 32 hearing and a new officer conducting the hearing without the


6 Under the law of the case doctrine, this court will not review the lower court’s ruling
unless “the lower court’s decision is ‘clearly erroneous and would work a manifest in-
justice’ if the parties were bound by it.” United States v. Doss, 57 M.J. 182, 185
(C.A.A.F. 2002) (quoting United States v. Williams, 41 M.J. 134, 135 n.2 (C.M.A. 1994)).




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                   United States v. Arnold, No. ACM 39194


troublesome restrictions. Any taint that attached to the original convening au-
thority, IO, and March 2014 pretrial investigation did not carry over into the
March 2015 preliminary hearing.
    There are three reasons why we are not persuaded by Appellant’s claim he
“was forever denied the opportunity to cross-examine his accuser on matters
pursuant to Mil. R. Evid, 412” at a pretrial hearing and thus entitled to the
remedy of dismissal with prejudice. First, Appellant was never entitled to this
opportunity prior to trial. Second, applying the “new” procedures of the prelim-
inary hearing in Appellant’s case did not violate the Ex Post Facto Clause. See
United States v. Henry, 76 M.J. 595 (A.F. Ct. Crim. App. 2017). Finally, the
question of whether Appellant could offer matters covered by Mil. R. Evid. 412
and cross-examine MB on the same was repeatedly and fully litigated at trial.
We are convinced beyond a reasonable doubt that “an objective, disinterested
observer, fully informed of all the facts and circumstances, would not harbor a
significant doubt about the fairness” of Appellant’s court-martial because of
the original convening authority’s restrictions on the IO for the first Article 32
hearing.
B. Mil. R. Evid. 412(b)(1)(C)
    The narrow issue presented on appeal is whether Appellant was denied his
rights under the “constitutionally required” exception in Mil. R. Evid.
412(b)(1)(C) when the military judge prevented Appellant from presenting a
theory that a “pregnancy scare” made it more likely that MB would have fab-
ricated the allegations of sexual abuse against Appellant.
    The information that MB was at one point concerned that she might be
pregnant consisted of text messages exchanged by MB with a friend. To be
concerned, she would have necessarily engaged in “other sexual behavior” and
thus this evidence was presumptively inadmissible unless an exception ap-
plied. A defense advanced by Appellant at trial was that MB completely fabri-
cated the sexual abuse allegations in order to continue her relationship with
AB. Appellant and his family, including MB, were due to move to Kadena Air
Base, Japan, in the summer of 2013. The expected move presented an obvious
impediment to MB continuing her relationship with AB. Further, her parents
disapproved of AB. Appellant essentially argued that the pregnancy scare un-
derscored the depth of MB’s attachment to AB and desire to stay with him
despite her parents’ disapproval. In the anxiety of the moment, MB resorted to
making false allegations to ensure that she would not be separated from AB.
Appellant argued that MB’s fear of pregnancy existed at the time of and after
the driveway confrontation when AB told Appellant that MB and AB could tell
the police “how much [Appellant] touch[ed] [his] daughter.” It is undisputed
that days later the pregnancy scare subsided and MB was not pregnant.



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                   United States v. Arnold, No. ACM 39194


    The military judge, noting that MB may have believed she was pregnant
by AB when she initially made allegations against Appellant, concluded none-
theless that the pregnancy scare was not relevant or material to the allegations
against Appellant: “[t]he Defense failed to show how [MB’s] concern over a po-
tential pregnancy provided [MB] with a motive to fabricate the allegations in
this case.” Thus, the military judge did not permit Appellant to elicit testimony
concerning a pregnancy scare or other sexual behavior. The military judge did
otherwise permit Appellant’s counsel to fully explore the genesis and intensity
of MB’s relationship with AB.
    “We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion.” United States v. Erickson, 76 M.J. 231, 234 (C.A.A.F.
2017). “A military judge abuses his discretion if his findings of fact are clearly
erroneous or his conclusions of law are incorrect.” Id. (quoting United States v.
Olson, 74 M.J. 132, 134 (C.A.A.F. 2015)) (internal quotation marks and citation
omitted); see also United States v. Ellerbrock, 70 M.J. 314, 317 (C.A.A.F. 2011)
(citation omitted) (“Findings of fact are reviewed under a clearly erroneous
standard and conclusions of law are reviewed de novo.”). “The abuse of discre-
tion standard is a strict one, calling for more than a mere difference of opinion.
The challenged action must be arbitrary, fanciful, clearly unreasonable, or
clearly erroneous.” United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F.
2000). The application of Mil. R. Evid. 412 to proffered evidence is a legal issue
that appellate courts review de novo. United States v. Roberts, 69 M.J. 23, 27
(C.A.A.F. 2010).
    Mil. R. Evid. 412 provides that evidence offered by the accused to show that
the alleged victim engaged in other sexual behavior is generally inadmissible,
with three limited exceptions. The third exception provides that the evidence
is admissible if its exclusion “would violate the constitutional rights of the ac-
cused.” Mil. R. Evid. 412(b)(1)(C). This exception includes an accused’s Sixth
Amendment right to confront witnesses against him, including the right to
cross-examine and impeach those witnesses. Ellerbrock, 70 M.J. at 318. The
burden is on the defense to overcome Mil. R. Evid. 412’s general rule of exclu-
sion by demonstrating an exception applies. United States v. Carter, 47 M.J.
395, 396 (C.A.A.F. 1998).
    Generally, evidence of other sexual behavior by an alleged victim is consti-
tutionally required and “must be admitted within the ambit of [Mil. R. Evid.]
412(b)(1)(C) when [it] is relevant, material, and the probative value of the evi-
dence outweighs the dangers of unfair prejudice.” Ellerbrock, 70 M.J. at 318
(citation omitted); see also Roberts, 69 M.J. at 27. Relevant evidence is evidence
that has any tendency to make the existence of any fact of consequence to de-
termining the case more probable or less probable than it would be without the
evidence. Mil. R. Evid. 401. Materiality “is a multi-factored test looking at the


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                    United States v. Arnold, No. ACM 39194


importance of the issue for which the evidence was offered in relation to the
other issues in this case; the extent to which the issue is in dispute; and the
nature of the other evidence in the case pertaining to th[at] issue.” Ellerbrock,
70 M.J. at 318 (citations and internal quotation marks omitted) (alteration in
original). The dangers of unfair prejudice to be considered “include concerns
about ‘harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.’” Id. (quoting Del-
aware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
    While another military judge may have found the pregnancy scare at least
marginally relevant to the Defense’s proffered theory of a motive to fabricate,
its probative value is difficult to discern. Indeed, Appellant’s trial defense coun-
sel acknowledged the difficulty in articulating the relevance and materiality
for the military judge. It is not reasonable to presume that because of a fear
that MB might be pregnant by AB, MB would make a false allegation of sexual
abuse against Appellant. Even more confounding is that AB, not MB, actually
made the first allegation that set Appellant’s case into motion. To be sure, Ap-
pellant has not argued that the pregnancy scare itself provided a motive to
fabricate; Appellant proffers it as a reason for MB to seek to preserve her rela-
tionship with AB, which was MB’s overarching motive to fabricate the allega-
tions according to Appellant.
    While a limitation on an accused’s presentation of evidence related to an
issue such as a witness’ motive to fabricate may interfere with an accused’s
right to confront the witness, “trial judges retain wide latitude [. . .] to impose
reasonable limits on cross-examination based on concerns about, among other
things, harassment, prejudice . . . or interrogation that is . . . only marginally
relevant.” United States v. Gaddis, 70 M.J. 248, 253 (C.A.A.F. 2011) (quoting
Van Arsdall, 475 U.S. at 679). In determining whether the exclusion of evi-
dence of the pregnancy scare deprived Appellant of a fair trial or an opportunity
for cross-examination, we ask whether “[a] reasonable jury might have re-
ceived a significantly different impression of [MB]’s credibility had [defense
counsel] been permitted to pursue his proposed line of cross-examination.” Van
Arsdall, 475 U.S. at 680.
    Here, the military judge, by permitting a full examination of MB’s relation-
ship with AB except for any sexual aspects, simply imposed “reasonable limits”
on the cross-examination, see id. at 679, and left open an “opportunity for ef-
fective cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Fur-
ther, “once the defendant has been allowed to expose a witness's motivation in
testifying, it is of peripheral concern to the Sixth Amendment how much op-
portunity defense counsel gets to hammer that point home to the jury.” United
States v. James, 61 M.J. 132, 136 (C.A.A.F. 2005). The military judge permitted



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                    United States v. Arnold, No. ACM 39194


Appellant to present evidence of MB’s motive to fabricate. Moreover, a reason-
able panel would not have received “a significantly different impression” of
MB’s credibility had Appellant been permitted to cross-examine her regarding
the pregnancy scare. 7 Therefore, the contested evidence was not constitution-
ally required, does not qualify for the Mil. R. Evid. 412(b)(1)(C) exception, and
was properly excluded under Mil. R. Evid. 412.
C. Sixth Amendment Rights
    In the aftermath of the abuse allegations being reported to the authorities,
KA felt confused and uninformed about the actual substance of the allegations
and the Guamanian criminal process. Desperate for information that neither
her daughter nor the Guamanian federal authorities would provide, KA con-
tacted the defense paralegal (DP) assigned to the Area Defense Counsel’s
(ADC) Office at Andersen Air Force Base. KA knew the DP from a fitness class
they both attended. The DP confirmed to KA that Appellant had visited the
ADC Office and had an attorney-client relationship with the ADC. The DP
opined to KA that “it doesn’t look good when someone comes in here all the
time” and that the allegations against her husband were “legit.” According to
KA, the DP also told her that Appellant had been given instructions on erasing
his computer hard drive.
    About a month after the DP’s conversation with KA, for reasons unrelated
to this case, the DP was reassigned to the base legal office that would prosecute
this case. The former DP was primarily assigned non-military justice duties
but was tasked to review some of the more than 300 hours of recorded phone
conversations of Appellant while he was confined. The former DP made multi-
ple adverse comments about Appellant to various trial counsel and paralegals
assigned to the case. The former DP offered that Appellant was “into some sick
s**t,” that he was “the type of person who would have erased his hard drive,”
and that Appellant’s “computer needed to be seized.” The former DP also re-
ferred to Appellant as a “sick guy” and “creepy,” asserted there were things
that trial counsel and paralegals did not know about the case, and said that
“the misconduct he was being prosecuted for only scratched the surface.” The
former DP stated to her fellow paralegals that “I know I am not supposed to



7 For both of the sexual abuse specifications of which Appellant was convicted, MB’s
testimony was corroborated by other evidence that would tend to positively impact a
reasonable jury’s impression of MB’s credibility as to those claims. MB’s testimony
regarding the touching of her breast on divers occasions was corroborated by a prior
consistent statement made to a teacher (see Paragraph E below). MB’s testimony about
Appellant touching her genitalia and breast with his hand and mouth while she was
pretending to be asleep in her bed was corroborated by a semen stain found on MB’s
blanket consistent with Appellant’s DNA.


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                    United States v. Arnold, No. ACM 39194


tell you guys this, but he actually did it” and that she was “glad” she was not
part of Appellant’s defense team.
    In an interview of KA leading up to Appellant’s second trial, a trial counsel
learned of the conversation the former DP had with KA regarding Appellant
and erasing hard drives. The trial counsel advised the staff judge advocate
(SJA) of the former DP’s conversation with KA. Subsequently, a formal profes-
sional responsibility inquiry established the extent to which the former DP had
made statements adverse to Appellant’s legal interests and to whom she made
those statements, including trial counsel. As a result, a new Government trial
team was detailed and a different SJA advised the convening authority. Appel-
lant’s computer was never seized or searched for contraband.
    In light of the former DP’s statements and actions and the failure of others
to report the former DP earlier, Appellant asserts his case should be dismissed
for outrageous Government misconduct and interference with his Sixth
Amendment right to counsel. Specifically, Appellant claims “this court should
conclude the more than two-year invasion of the attorney-client relationship
by the Government is a per se violation of the Sixth Amendment and dismiss
this case.” In other words, Appellant argues that the former DP’s actions and
their impact amount to structural error, or an error so serious that no proof of
prejudice is required. Appellant separately asserts that the outrageous Gov-
ernment misconduct coupled with the apparent UCI (discussed above) denied
him his Sixth Amendment right to a speedy trial. We disagree with both
claims.
   1. Sixth Amendment Right to Counsel
    Appellant raised this issue of “outrageous government conduct” at trial
styled as a motion to dismiss for UCI and “breach of the attorney-client privi-
lege.” In ruling on the motion, the military judge made detailed findings of fact
that we now adopt as our own.
    The Government argues as a threshold matter that at the time of the for-
mer DP’s disclosures to KA, Appellant’s Sixth Amendment right to counsel had
not attached and the later disclosures to legal office personnel occurred when
the former DP was no longer part of Appellant’s defense team for Sixth Amend-
ment purposes. Therefore, the Government argues that any error stemming
from these disclosures could not have been constitutional error and that pros-
ecutorial misconduct is the appropriate framework to analyze error and deter-
mine whether there is any prejudice attributable to the former DP’s disclo-
sures.
   The Sixth Amendment provides, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S.
CONST. amend. VI. The Supreme Court has interpreted this to mean “that the


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                   United States v. Arnold, No. ACM 39194


right to counsel does not attach until the initiation of adversary judicial pro-
ceedings. . .” United States v. Gouveia, 467 U.S. 180, 188 (1984). Adversary
judicial proceedings commence for an accused “at or after the time that judicial
proceedings have been initiated against him—‘whether by way of formal
charge, preliminary hearing, indictment, information, or arraignment.’”
Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S.
682, 689 (1972)). In the military, preferral of charges initiates adversary judi-
cial proceedings and causes the Sixth Amendment right to counsel to attach.
United States v. Wattenbarger, 21 M.J. 41, 43 (C.M.A. 1985). While the Gov-
ernment makes a well-reasoned argument why Appellant’s Sixth Amendment
right to counsel had yet to attach or was not attached at the time of the former
DP’s disclosures, we need not resolve this question. Assuming without deciding
that Appellant’s Sixth Amendment right to counsel did attach, we find the dis-
closures do not constitute structural error and did not prejudice Appellant.
    When a Sixth Amendment claim involves a governmental act or omission
affecting the right of an accused to the assistance of counsel, we consider
whether the infringement involves a structural error—an error so serious that
no proof of prejudice is required—or whether the error must be tested for prej-
udice. United States v. Brooks, 66 M.J. 221, 223–24 (C.A.A.F. 2008). Structural
error exists “when a court is faced with ‘the difficulty of assessing the effect of
the error’” or the error is so fundamental that “harmlessness is irrelevant.” Id.
at 224 (citations omitted).
    As the United States Court of Appeals for the Armed Forces noted in
Brooks, “‘Structural errors involve errors in the trial mechanism’ so serious
that ‘a criminal trial cannot reliably serve its function as a vehicle for determi-
nation of guilt or innocence.” Id. at 224 (quoting Arizona v. Fulminante, 499
U.S. 279, 309–10 (1991)). “[T]here is a strong presumption that an error is not
structural.” Id. (citations and quotation marks omitted).
    As the military judge concluded, the Government did not seize or search
Appellant’s computer as was urged by the former DP. A review was conducted
of Appellant’s cell phone, but this did not result in new evidence pertinent to
the charges. Appellant speculates that the former DP’s influence on KA caused
KA to cooperate with the Air Force in the prosecution of Appellant. KA, how-
ever, clearly stated it was the trust she had in Air Force officials, in stark con-
trast to her negative experience with Guamanian officials, which was the de-
terminative factor for her and MB to cooperate in the Air Force prosecution of
Appellant. Finally, the trial team and SJA who were aware of the statements
of the former DP were disqualified from the case. Under these circumstances,
the effect of the rogue actions of the former DP could be assessed and the error
resulting from those actions was not so fundamental that harmlessness is ir-
relevant. Thus, we conclude no structural error.


                                        12
                   United States v. Arnold, No. ACM 39194


    We next turn to the analysis of whether the actions of the former DP prej-
udiced Appellant. In that posture, “we shall assume, without deciding, that the
Sixth Amendment was violated in the circumstances of this case.” United
States v. Morrison, 449 U.S. 361, 364, (1981). Assuming that the error is of a
constitutional dimension, we assess whether it was harmless beyond a reason-
able doubt. See United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (quot-
ing Chapman v. California, 386 U.S. 18, 24 (1967)). An error is harmless be-
yond a reasonable doubt when the error did not contribute to an appellant’s
conviction or sentence. United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016).
An error is not harmless beyond a reasonable doubt when there is a reasonable
possibility that the error might have contributed to the conviction. Id. There is
no nexus between the disclosures of the former DP and the charges referred
against Appellant or any of the evidence offered against him. As deeply trou-
bling as the actions of the former DP are, we are confident they did not con-
tribute to the verdict in Appellant’s case and thus convinced beyond a reason-
able doubt of the harmlessness of the error.
   2. Sixth Amendment Right to Speedy Trial
    Separate and apart from the alleged impact of the former DP’s actions on
the outcome of his case, Appellant claims the Government violated his Sixth
Amendment right to a speedy trial. Appellant argues that the former DP’s ac-
tions coupled with the apparent UCI committed by the original convening au-
thority resulted in delays attributable to the Government and are the primary
reasons it took 899 days to get his case from the original date of preferral to
trial on the merits despite his demands for a speedy trial. Appellant asserts he
was prejudiced by the delay because of MB and AB’s claims that their memo-
ries faded with the passage of time to explain inconsistencies in their accounts.
We find no violation of Appellant’s Sixth Amendment right to a speedy trial.
    We review de novo Sixth Amendment speedy trial issues. United States v.
Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003). In analyzing an appellant's speedy trial
right, we “giv[e] substantial deference to the military judge’s findings of fact
unless they are clearly erroneous.” United States v. Thompson, 68 M.J. 308,
312 (C.A.A.F. 2010). In determining whether an appellant has been denied his
right to a speedy trial under the Sixth Amendment and following Supreme
Court precedent, this court considers the following factors: (1) the length of the
delay; (2) the reason for the delay, (3) whether the appellant asserted his right
to a speedy trial; and (4) prejudice to the appellant. Barker v. Wingo, 407 U.S.
514, 530 (1972). None of the four factors identified above is regarded “as either
a necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial.” Id. at 533. Instead, they are “related factors and must be consid-
ered together with such other circumstances as may be relevant. In sum, these



                                        13
                   United States v. Arnold, No. ACM 39194


factors have no talismanic qualities; courts must still engage in a difficult and
sensitive balancing process.” Id.
       a. Length of the Delay
    Charges were originally preferred on 3 February 2014. As a remedy for the
apparent UCI, the military judge dismissed the original charges without prej-
udice on 31 July 2014. Months later, on 18 November 2014, charges were pre-
ferred anew against Appellant. After the Article 32, UCMJ, preliminary hear-
ing, referral, and the setting of multiple trial dates followed by continuances,
this case finally made it to trial on 21 July 2016—899 days after the original
charges were preferred and 611 days after the second preferral. Because the
original charges in this case were completely dismissed and then later pre-
ferred anew, we first must resolve the trigger date for the Sixth Amendment
speedy trial analysis.
    In United States v. Amerine, 17 M.J. 947 (A.F.C.M.R. 1984), this court, cit-
ing to United States v. MacDonald, 456 U.S. 1 (1982), held that “[w]here the
Government withdraws charges in good faith, the speedy trial provision of the
Sixth Amendment is inapplicable to the period between the withdrawal of the
charges and a subsequent repreferral of those charges.” Amerine, 17 M.J. at
950. In MacDonald, the Supreme Court held that “[o]nce charges are dis-
missed, the speedy trial guarantee is no longer applicable” and “[a]ny undue
delay after charges are dismissed, like any delay before charges are filed, must
be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” Id.
at 7–8.
    In this case, it was the military judge, not the Government, who dismissed
without prejudice the original charges as a remedy for apparent UCI. We find
that the Government re-preferred the charges in good faith and the speedy
trial provision of the Sixth Amendment is inapplicable to the period between
the dismissal and subsequent re-preferral. Thus, 18 November 2014 is the trig-
ger date for our speedy trial analysis, and 611 days is the period of the delay.
The length of the delay is sufficient to trigger a full Barker analysis.
       b. Reasons for the Delay
    Appellant asserts that “much of the delay in this case is attributable to
outrageous government misconduct.” To support his claim, Appellant argues it
was unreasonable that 110 days passed after the dismissal of charges and be-
fore their re-preferral. This period however, as discussed above, is not subject
to Sixth Amendment speedy trial scrutiny and therefore we do not give it any
weight in the Barker analysis. Appellant also urges that this second Barker
factor weighs in his favor because the Government requested a continuance in




                                       14
                    United States v. Arnold, No. ACM 39194


order to replace its trial team, 8 which resulted in a delay from 14 March 2016
until 21 July 2016. The Government points to 658 days of defense unavailabil-
ity in order to explain the bulk of the delay. 9 It is also notable that travel diffi-
culties for the military judge provided the impetus for a continuance of the trial
from September 2015 to 18 January 2016.
   In Vermont v. Brillion, 556 U.S. 81 (2009), the United States Supreme
Court provided guidance in weighing reasons for delay in applying Barker.
       Barker instructs that “different weights should be assigned to
       different reasons,” and in applying Barker, we have asked
       “whether the government or the criminal defendant is more to
       blame for th[e] delay.” Deliberate delay “to hamper the defense”
       weighs heavily against the prosecution. “[M]ore neutral rea-
       son[s] such as negligence or overcrowded courts” weigh less
       heavily “but nevertheless should be considered since the ulti-
       mate responsibility for such circumstances must rest with the
       government rather than with the defendant.”
       In contrast, delay caused by the defense weighs against the de-
       fendant: “[I]f delay is attributable to the defendant, then his
       waiver may be given effect under standard waiver doctrine.”
Id. at 90 (alterations in original) (internal citations omitted).
    While this case does not present a model of celerity, we do not divine an
effort on the part of the Government to delay in order to harm Appellant’s de-
fense. On the contrary, the Government consistently sought to get the case to
trial consistent with the availability of Appellant’s defense team, an expert
witness, and a military judge. Once the full impact of the actions of the former
DP was understood, the Government replaced the trial team to ensure the
prosecution of Appellant was not tainted and sought a continuance consistent
with the availability of a new trial team. Having weighed all the reasons for
the delays in this case, we find that neither the Government nor Appellant
sought to delay the case for tactical advantage, but because of the length of the




8The original trial team was replaced due to their knowledge of the statements made
about Appellant by the former DP.
9 The Government addressed the entire 899 day period from the first preferral until
the verdict. Appellant asserted unavailability for the following dates: 17–19 March
2014 and 22 April to 28 July 2014, which were prior to the dismissal of the original
charges; 18 November 2014 to 2 February 2015; 10–25 February 2015; 4–6 March
2015; 24 March to 20 September 2015; 29 September 2015 to 17 January 2016; 25
January to 14 March 2016; and 25 March to 21 July 2016.


                                         15
                   United States v. Arnold, No. ACM 39194


delay and the fact that ultimate responsibility for delay not attributable to Ap-
pellant rests with the Government, this factor tilts slightly in favor of Appel-
lant.
       c. Assertion of the Speedy Trial Right
    Appellant requested speedy trial on multiple occasions; however, he also
retained civilian counsel who was unavailable for significant periods of time.
The assertion of his right to a speedy trial weighs slightly in favor of Appellant.
       d. Prejudice
    Appellant asserts he was prejudiced by the delay in trying his case because
MB and AB were able to claim their memories faded with the passage of time
to explain inconsistencies in their accounts.
    Prejudice is assessed “in the light of the interests of defendants which the
speedy trial right was designed to protect.” The Supreme Court has identified
three such interests: “(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit the possibility
that the defense will be impaired. Of these, the most serious is the last, because
the inability of a defendant adequately to prepare his case skews the fairness
of the entire system.” Barker, 407 U.S. at 532.
    Appellant does not now argue the delay impacted his ability to prepare a
defense but contends only the delay provided a convenient excuse for adverse
witnesses to claim not to remember certain events or prior statements when
being impeached. We find that Appellant’s defense was not impaired. In each
instance the substantive evidence that Appellant sought to present through
the testimony of MB and AB was eventually admitted and argued by Appel-
lant’s counsel in closing argument. The lapses of memory by MB and AB were
not significant to the outcome of the case; Appellant was able to present his
defense.
   We are also mindful of what the United States Supreme Court stated ten
years after Barker in MacDonald regarding the type of prejudice the Sixth
Amendment was intended prevent:
       The Sixth Amendment right to a speedy trial is thus not primar-
       ily intended to prevent prejudice to the defense caused by pas-
       sage of time; that interest is protected primarily by the Due Pro-
       cess Clause and by statutes of limitations. The speedy trial guar-
       antee is designed to minimize the possibility of lengthy incarcer-
       ation prior to trial, to reduce the lesser, but nevertheless sub-
       stantial, impairment of liberty imposed on an accused while re-
       leased on bail, and to shorten the disruption of life caused by
       arrest and the presence of unresolved criminal charges.


                                        16
                   United States v. Arnold, No. ACM 39194


MacDonald, 456 U.S. at 8. During the period of delay we considered, Appellant
does not claim he was subject to pretrial confinement or a restriction on liberty.
Because we find no oppressive pretrial incarceration or impairment to Appel-
lant’s defense, we find no Sixth Amendment prejudice to Appellant by the de-
lay.
    Having carefully applied and balanced the Barker factors in the circum-
stances of this case, we find no violation of Appellant’s Sixth Amendment right
to speedy trial.
D. Mil. R. Evid. 513 and In Camera Review
   At trial, Appellant sought an in camera review of MB’s mental health rec-
ords arguing that any communications made by MB to a mental health pro-
vider regarding child abuse or neglect were not privileged under Mil. R. Evid.
513, the psychotherapist-patient privilege. On appeal, Appellant asserts that
the military judge abused his discretion when he declined to conduct the in
camera review and requests that we order production of MB’s mental health
records for in camera review or, in the alternative, set aside the findings and
sentence and authorize a rehearing. We decline to do so.
    We review a trial judge’s conclusion that an appellant failed to provide a
sufficient basis for an in camera review for an abuse of discretion. United
States v. Chisum, 75 M.J. 943, 946 (A.F. Ct. Crim. App. 2016), aff’d, 77 M.J.
176 (C.A.A.F. 2018). The abuse of discretion standard is a strict one, calling for
more than a mere difference of opinion. The challenged action must be “arbi-
trary, fanciful, clearly unreasonable, or clearly erroneous.” McElhaney, 54 M.J.
at 130. Prior to conducting an in camera review of the records or communica-
tions of a patient, the military judge must find by a preponderance of the evi-
dence that the moving party showed the following: (A) a specific factual basis
demonstrating a reasonable likelihood that the records or communications
would yield evidence admissible under an exception to the privilege; (B) that
the requested information meets one of the enumerated exceptions under sub-
section (d) of this rule; (C) that the information sought is not merely cumulative
of other information available; and (D) that the party made reasonable efforts
to obtain the same or substantially similar information through non-privileged
sources. Mil. R. Evid. 513(e)(3).
    In ruling on Appellant’s request for an in camera review of MB’s mental
health records, the military judge applied Mil. R. Evid. 513 and found that
Appellant failed to show by a preponderance of the evidence a “specific factual
basis demonstrating a reasonable likelihood that the records or communica-
tions would yield evidence admissible under an exception to the privilege” and
“that the requested information meets one of the enumerated exceptions under
subsection (d) of this rule.” The military judge found that “simply because the


                                       17
                   United States v. Arnold, No. ACM 39194


alleged victim made allegations and shortly thereafter went to counseling, it
does not automatically follow that she discussed the sexual assault allegations
in counseling.” He further found that the evidence presented on this issue
“demonstrated exactly the opposite.” KA testified in the motions hearing that
MB’s therapist told KA that MB discussed MB’s day-to-day activities rather
than the sexual abuse. MB had stated in the first Article 32 hearing that she
did not discuss the sexual abuse with her therapist. The military judge’s con-
clusion that Appellant failed to make the required showing under Mil. R. Evid.
513(e)(3)(A) was not arbitrary, fanciful, clearly unreasonable, or clearly erro-
neous.
E. Mil. R. Evid 801(d)(1)(B), Prior Consistent Statement
    After MB testified and was extensively cross-examined about the sexual
abuse, to include Appellant touching MB’s breast with his hand, the Govern-
ment sought to elicit the testimony of Mrs. KF, a teacher at MB’s high school,
to relay a prior statement of MB. MB had confided in Mrs. KF about a “friend”
who was experiencing abuse at the hands of her stepfather. Over the objection
of Appellant, the military judge admitted MB’s statement to Mrs. KF under
Mil. R. Evid 801(d)(1)(B) as a prior consistent statement to rebut an allegation
of recent fabrication. Based on “the clear position and theory that the defense
has taken and explored thoroughly with [MB] respecting the recent fabrica-
tion,” the military judge concluded the prior statement qualified for admission.
Appellant asserts on appeal that the military judge abused her discretion. We
disagree.
    “A military judge’s decision to admit or exclude evidence is reviewed for
abuse of discretion.” United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998).
“The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” McElhaney, 54 M.J. at 130. A prior con-
sistent statement is not hearsay if it is “offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or mo-
tive.” Mil. R. Evid. 801(d)(1)(B). Our superior court has consistently inter-
preted the rule to require that a prior statement, admitted as substantive evi-
dence, precede any motive to fabricate or improper influence that it is offered
to rebut. Allison, 49 M.J. at 57. In sum, a “statement is not hearsay if . . . [1]
the declarant testifies at the trial or hearing and [2] is subject to cross-exami-
nation concerning the statement, and [3] the statement is . . . consistent with
the declarant’s testimony [4] and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or mo-
tive . . . .” United States v. McCaskey, 30 M.J. 188, 188 (C.M.A. 1990).
    Mrs. KF testified about a conversation she had with MB about six months
prior to the allegations and well before MB met AB. MB told Mrs. KF she had

                                       18
                   United States v. Arnold, No. ACM 39194


a friend who had a problem with her stepfather. MB relayed that her friend’s
mother asked her friend to take off her shirt so that her stepfather could “mas-
sage” her. “[T]he mother felt that the—that the stepfather you know, that
they—there was kind of—I guess a, not a bond between them and that it would
allow a stronger bond between the stepfather and the—and the so-called friend
at the time.” The mother “told her to take off her top and that that would make
the bonding better between her and her stepfather.” Echoing the testimony of
Mrs. KF about MB’s “friend,” Appellant himself testified that there were occa-
sions when he would massage MB’s bare skin in part at the behest of KA who
wanted there to be a stronger bond between Appellant and MB.
    That MB’s prior statement preceded the motive to fabricate is not reasona-
bly in dispute. MB made the statement to Mrs. KF before MB met AB. At the
time MB told Mrs. KF about her “friend,” MB could not have had a motive to
fabricate rooted in a desire to preserve her relationship with AB.
    Appellant’s primary argument against admission of MB’s prior statement
is that the statement was not consistent with MB’s testimony at trial. Appel-
lant specifically points to the inconsistency between MB’s statement about a
“friend” being massaged by the friend’s stepfather and MB’s testimony about
being massaged by Appellant. Contrary to Appellant’s characterization, there
is considerable consistency between MB’s description of what happened to the
“friend” at the hands of the friend’s stepfather and MB’s description of what
Appellant, her stepfather, did to her. Even the encouragement of the friend’s
mother mirrors the role KA played in Appellant’s massages of MB. Given the
substantial similarities between the circumstances of the massages and the
reasonable conclusion that MB was in fact describing Appellant’s abuse when
talking to Mrs. KF about a “friend,” we find the military judge did not abuse
her discretion in concluding that the prior statement to Mrs. KF was consistent
with MB’s in-court testimony and admitting it.
F. Improper Argument
    Appellant asserts that, during closing argument, trial counsel made an im-
permissible comment that Appellant sought the assistance of counsel, that the
comment amounted to constitutional error, and that the error was not harm-
less beyond a reasonable doubt. We disagree. In context, trial counsel’s com-
ment was a fair reply to matters testified to by Appellant in response to a mem-
ber’s question.
    At trial, the prosecution called a digital forensics expert who examined Ap-
pellant’s cell phone and found “there were over 400 text messages, all of which
were deleted.” Specifically, the expert testified that it appeared “these mes-
sages were intentionally deleted by the user.” Appellant, who testified during
the findings portion of trial, received the following question from a member:


                                      19
                      United States v. Arnold, No. ACM 39194


“Why are the phone messages with [your wife] and [your daughter] deleted
from your phone?” Appellant responded,
       Sir, when all this was starting, while [my daughter] was talking
       to the chaplains, [my wife] and I were trying to figure out what
       the situation was, I went and talked with ADC. They had told
       me that if this goes into investigative mode what was going to
       happen. So kind of a series of events around. So seeing how
       sometimes the system’s stacked on the wrong end, I wanted
       them to go to DoCoMo 10 and get the source on everybody’s infor-
       mation. I didn’t want them just to take my phone as a perk and
       only use that. Like, there is more to this story than what’s just
       on my phone. So I knew that data was there. I could get it myself
       every month when I go pay my bill. And in hindsight, I should
       have.
(Emphasis added) (Footnote inserted).
    In light of Appellant’s explanation for the deletion of the text messages,
trial counsel conducted additional cross-examination.
       Q. You were made aware now by an attorney, who’s telling you
       that this [investigation] is what’s coming?
       A. Yes.
       Q. Which confirms everything ----
       A. Possibly.
       Q. ---- that you thought potentially before, correct?
       A. Yes, sir.
       Q. And you deleted those messages before OSI could get your
       phone, isn’t that true?
       A. Yes, sir.
       …
       Q. Because you were trying to hid[e] that information, weren’t
       you?
       A. No, sir.
       Q. You weren’t trying to hide that information?


10Although “DoCoMo” is not further described or explained in the record, in the context
used we conclude that “DoCoMo” refers to a telecommunications service provider used
by Appellant, KA, and MB.


                                          20
                     United States v. Arnold, No. ACM 39194


       A. No, sir.
       Q. You would agree with me though, it seems fairly odd that
       somebody who’s not trying to hide something is deleting mes-
       sages off their phone?
       A. I can see how that could look.
    During closing argument, Appellant’s counsel sought to defuse the impact
of the deletion of the text messages and the reasonable inference of conscious-
ness of guilt.
       So, why does he do that? If he’s of a guilty mind, why not con-
       tinue it . . . He deletes those messages, why? Because he looked
       really stupid. And if someone tries to take them out of context,
       exactly as they do, he knows what they’ll say. They’ll pound on
       a podium and say, “These messages…” taken out of context with
       the scenario, without you knowing, or him being able to prove
       that he’s being extorted. He knows. So, when he testifies and he
       says he wants the full context to be out there, that’s exactly now
       what you have, is the full context. Thankfully. Okay, that makes
       sense.
    In rebuttal argument, trial counsel addressed Appellant’s proffered reason
for deleting the messages, first summarizing Appellant’s argument why he de-
leted the text messages.
       Don’t want that. We don’t want that coming out. I’m an innocent
       person. We don’t want any of that. We don’t want anybody to
       think that I’m innocent and doing all of these things, because
       I’m an innocent person and I have absolutely nothing to hide.
    Trial counsel then sought to make the point that Appellant’s explanation
was not credible and deleting the text messages was evidence of consciousness
of guilt.
       It’s garbage. It’s garbage, because he’s going to see an attorney,
       an area defense counsel. He’s given advice and he leaves that
       office and deletes messages on his phone that could contain in-
       criminating information, members. That’s not what an innocent
       person would do.
   Trial defense counsel objected and the following discussion ensued:
       CDC [Civilian Defense Counsel]: I’m going to object just to make
       sure that it’s not an insinuation that an innocent person
       wouldn’t go talk to an area defense counsel. That’s -- I’m sure




                                      21
                   United States v. Arnold, No. ACM 39194


       that’s not what [trial counsel] was saying, I’m just making sure
       the objection is made.
       TC [Trial Counsel]: That’s absolutely not what [trial counsel]
       was saying, ma’am.
       MJ [Military Judge]: And that objection would be sustained if it
       was on that basis. I did not hear it that way, but members, to
       the extent that it sounds like he couldn’t go see the area defense
       counsel, whether it being innocent or guilty in his own mind.
       That, that’s -- that wouldn’t be acceptable argument, so please
       don’t read it that way.
    Trial counsel then continued the rebuttal argument, emphasizing that Ap-
pellant knew that MB’s allegations would result in an investigation and ac-
knowledging the Government’s burden “to prove beyond a reasonable doubt
that [Appellant] had reason to believe there were or would be criminal proceed-
ings against himself or that some law enforcement official of the military would
be investigating [his] actions.”
    “Whether there has been improper reference to an accused’s invocation of
his constitutional rights is a question of law that [military courts] review de
novo.” United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007) (citation omit-
ted). “The law generally discourages trial counsel’s presentation of testimony
or argument mentioning an accused’s invocation of his constitutional rights
unless, for example, an accused invites such testimony or argument in rebuttal
to his own case.” Moran, 65 M.J. at 181 (citing United States v. Robinson, 485
U.S. 25, 32 (1988)). “Under the ‘invited response’ or ‘invited reply’ doctrine, the
prosecution is not prohibited from offering a comment that provides a fair re-
sponse to claims made by the defense.” United States v. Carter, 61 M.J. 30, 33
(C.A.A.F. 2005). When “[t]he government d[oes] not inject [the] Appellant’s in-
vocation of his right into evidence” but rather “the matter was brought out by
[defense] to support the defense theory of the case,” the prosecution can argue
against that theory. United States v. Haney, 64 M.J. 101, 106 (C.A.A.F. 2006).
Accordingly, “trial counsel ‘may strike hard blows, [but] he is not at liberty to
strike foul ones.’” United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (quot-
ing Berger v. United States, 295 U.S. 78, 88 (1935)) (alterations in original). “In
order to determine whether or not comments are fair, ‘prosecutorial comment
must be examined in context.’” United States v. Gilley, 56 M.J. 113, 121
(C.A.A.F. 2001) (quoting Robinson, 485 U.S. at 32).
   We start our analysis by noting that Appellant himself, in response to a
question from a court member why Appellant deleted messages from his phone,
put his visit to the ADC before the factfinder. He employed his invocation of
counsel as a contextual detail in an effort to give an innocent explanation why


                                        22
                    United States v. Arnold, No. ACM 39194


he deleted the messages: to ensure that law enforcement would be compelled
to obtain the complete text messages of MB, KA, and Appellant in the investi-
gation he knew would transpire. To this end, Appellant referenced his consul-
tation with counsel to lend credibility to his attempt to exculpate himself. Ap-
pellant’s sworn testimony, followed by his counsel’s closing argument on the
matter, invited trial counsel’s reply.
    While trial counsel could have avoided any mention of Appellant’s interac-
tion with his counsel, it is clear that trial counsel did not assert Appellant seek-
ing counsel was proof of guilt. Rather, the substance of trial counsel’s argument
was that only a guilty person, knowing an investigation is underway, finds it
necessary to destroy incriminating evidence, which Appellant did after seeking
counsel. This was a fair response to Appellant’s explanation for deleting the
messages on his phone and this response did not amount to an impermissible
comment by trial counsel.
    Assuming arguendo the comment was error, the error was harmless beyond
a reasonable doubt. Appellant’s counsel objected to “make sure” that trial coun-
sel was not insinuating “that an innocent person wouldn’t go talk to an area
defense counsel.” The military judge agreed there was no improper insinuation
but sua sponte provided as a precaution a curative instruction to the members.
Based on the context of the trial counsel’s comment during rebuttal argument,
how it was understood by both Appellant’s counsel and the military judge, and
the curative instruction, we are confident there is no reasonable possibility the
comment contributed to the verdict in Appellant’s case. See Hills, 75 M.J. at
357.
G. Ineffective Assistance of Counsel
    Relying on a finding of the inquiry officer who reviewed the actions of the
former DP as a professional responsibility (PR) matter, Appellant asserts inef-
fective assistance of counsel. Specifically, Appellant points to the PR inquiry
finding that the former DP “unlawfully” instructed Appellant to destroy evi-
dence by erasing his hard drive. According to Appellant, that instance of inef-
fective assistance of counsel resulted in prejudice when the trial counsel ar-
gued that the destruction of evidence is not something “an innocent person
would do.” We reiterate how deeply troubling we find the actions of the former
DP, but we do not agree that Appellant suffered prejudice as a result of inef-
fective assistance of counsel.
    The Sixth Amendment guarantees Appellant the right to effective assis-
tance of counsel. U.S. CONST. amend. VI; Gilley, 56 M.J. at 124. In assessing
the effectiveness of counsel, we apply the standard set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984): “To prevail on a claim of ineffective as-
sistance of counsel, an appellant must demonstrate both (1) that his counsel’s


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                    United States v. Arnold, No. ACM 39194


performance was deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J. 360, 361–62 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687). In reviewing for ineffectiveness, the court “looks at the ques-
tions of deficient performance and prejudice de novo.” United States v.
Gutierrez, 66 M.J. 329, 330–31 (C.A.A.F. 2008). We review allegations of inef-
fective assistance utilizing the following three-part test to determine whether
the presumption of competence has been overcome:
       1. Are appellant’s allegations true; if so, “is there a reasonable
       explanation for counsel’s actions”?
       2. If the allegations are true, did defense counsel’s level of advo-
       cacy “fall measurably below the performance . . . [ordinarily ex-
       pected] of fallible lawyers”?
       3. If defense counsel was ineffective, is there “a reasonable prob-
       ability that, absent the errors,” there would have been a differ-
       ent result?
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (quoting United States
v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).
    Assuming without deciding that the former DP’s instruction to Appellant
to erase his hard drive constituted deficient performance of “counsel” for Sixth
Amendment purposes, 11 we consider whether there was a reasonable probabil-
ity of a different result absent the error and determine there was not. Plainly
stated, Appellant has not shown the connection between the deficient perfor-
mance, trial counsel’s argument, and the result in his trial. The former DP
instructed Appellant to erase his computer hard drive and made repeated com-
ments to trial legal office personnel regarding Appellant and a search and sei-
zure of his computer.
    By contrast, trial counsel’s argument about destroying evidence concerned
text messages Appellant deleted from his cell phone. There is no indication the
former DP ever discussed with Appellant destroying evidence other than eras-
ing his computer hard drive. When asked by the court member why Appellant
deleted the text messages on his cell phone, Appellant did not attribute his
decision to the former DP, ADC, or any member of his defense team. As de-
tailed above, Appellant testified that once he was advised there would be an
investigation, he decided to delete the text messages from his cell phone to en-
sure that law enforcement would obtain all the text messages to include not
only his but also messages from MB and KA. Trial counsel’s argument—that

11It is not necessary to decide the issue of deficient performance when it is apparent
that the alleged deficiency has not caused prejudice. See Loving v. United States, 68
M.J. 1, 2 (C.A.A.F. 2009).


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                   United States v. Arnold, No. ACM 39194


“destruction of evidence is not something an innocent person would do”—re-
butted Appellant’s explanation and had nothing to do with the former DP’s
instruction about the hard drive.
   Finally, there was no connection between the former DP’s deficient perfor-
mance and Appellant’s conviction. As discussed above, Appellant’s computer
was never seized, no charge against Appellant concerned his computer, and no
evidence from Appellant’s computer hard drive was used against Appellant.
Accordingly, we find Appellant has failed to show a reasonable probability that,
absent the error of the ineffective assistance, there would have been a different
result in Appellant’s trial.
H. Timely Appellate Review
    Appellant, averring that “a failure to adequately staff the Appellate De-
fense Division all but guarantees that [his] case will not be resolved within the
eighteen-month timeline established by” United States v. Moreno, 63 M.J. 129,
142 (C.A.A.F. 2006), argues this court should order appropriate relief. We de-
cline to do so.
    We review de novo “[w]hether an appellant has been denied [his] due pro-
cess right to a speedy post-trial review . . . and whether [any] constitutional
error is harmless beyond a reasonable doubt.” Allison, 63 M.J. at 370. A pre-
sumption of unreasonable delay arises when appellate review is not completed
and a decision is not rendered within 18 months of the case being docketed
before this court. Moreno, 63 M.J. at 142. The Moreno standards continue to
apply as a case remains in the appellate process. United States v. Mackie, 72
M.J. 135, 135–36 (C.A.A.F. 2013). When a case is not completed within 18
months, such a delay is presumptively unreasonable and triggers an analysis
of the four factors elucidated in Barker and Moreno. See United States v. Ar-
riaga, 70 M.J. 51, 55 (C.A.A.F. 2011). Those factors are: “(1) the length of the
delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to
timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135; United
States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S.
at 530.
    This case was originally docketed with the court on 21 December 2016. The
delay in rendering our decision within 18 months is facially unreasonable.
However, we analyzed the Barker factors and find no due process violation re-
sulted from the appellate delay.
   While our decision in the case is rendered outside of 18 months, it is only
beyond that date by a single week.
    The reasons for the delay include the fact that Appellant’s brief was not
filed until 1 February 2018, over 13 months after the case was docketed with



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                   United States v. Arnold, No. ACM 39194


this court. The Government’s answer was filed on 5 March 2018. This court
issued its opinion within four months of the Government’s answer.
    Appellant’s counsel requested a total of seven enlargements of time, all of
which were granted. In the motion for a second enlargement of time, Appel-
lant’s counsel noted that the Government ordered Appellant’s detailed counsel
to prepare for a pending deployment, and new counsel was detailed to replace
deployed counsel on 10 July 2017. Appellant cited the replacement of counsel
as good cause for the enlargement of time. On appeal, Appellant cites the de-
ployment of his original counsel as evidence of the Government’s failure to ad-
equately staff the Appellate Defense Division. While Appellant may be correct
in implying that his original counsel would have filed a brief on his behalf
sooner than 1 February 2018, Appellant falls far short of convincing us that
the replacement of his counsel at the six-month point caused an unreasonable
delay in his case.
    As demonstrated by the 11 assignments of error, Appellant’s case is notable
for its lengthy and complicated procedural history, even before the trial on the
merits. The record of trial consists of 21 volumes. The trial transcript is 1,343
pages. There are 26 prosecution exhibits, 17 defense exhibits, and 56 appellate
exhibits. It could be expected that this case would require more time than a
less complicated, less voluminous one.
   Appellant did not make a demand for speedy appellate review.
   We find no prejudice to Appellant resulting from the delay for the court to
complete appellate review of his case. When there is no prejudice resulting
from the delay, “we will find a due process violation only when, in balancing
the other three factors, the delay is so egregious that tolerating it would ad-
versely affect the public’s perception of the fairness and integrity of the mili-
tary justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
That is not the case here where the delay is not so egregious and tolerating it
does not adversely affect the public’s perception of the military justice system.
    We have also considered whether Appellant is due relief because of the vi-
olation of the Moreno standards in this case in the absence of a due process
violation. United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). This
court set out a non-exhaustive list of factors we consider when evaluating the
appropriateness of Tardif relief in United States v. Gay, 74 M.J. 736, 744 (A.F.
Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). Those factors include
how long the delay exceeded appellate review standards, the reasons noted by
the Government for the delay, whether the Government acted with bad faith
or gross indifference, evidence of institutional neglect, harm to Appellant or
the institution, the goals of justice and good order and discipline, and, finally,
whether the court can provide any meaningful relief given the passage of time.


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                   United States v. Arnold, No. ACM 39194


Id. No single factor is dispositive and we may consider other factors as appro-
priate. Id.
   On the whole, we apply the Gay factors and find the delay, although
presumptively unreasonable, to be justified. The length of the delay exceeded
the Moreno standard of 18 months by only a week. We also find no evidence of
bad faith or gross indifference on the part of the Government. For these rea-
sons, we conclude no Tardif relief is warranted.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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