             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                             UNITED STATES

                                                       v.

                                  Senior Airman JAMES M. KMET
                                       United States Air Force

                                                 ACM 38755

                                                 2 June 2016

           Sentence adjudged 10 October 2014 by GCM convened at Schriever Air
           Force Base, Colorado. Military Judge: Brendon K. Tukey.

           Approved Sentence: Bad-conduct discharge, confinement for 120 days,
           forfeiture of all pay and allowances during confinement and forfeiture of
           $1031.00 pay per month thereafter until the bad-conduct discharge is
           executed, and reduction to E-1.

           Appellate Counsel for Appellant: Lieutenant Colonel Lucy H. Carrillo, and
           Captain Johnathan D. Legg.

           Appellate Counsel for the United States: Captain Tyler B. Musselman and
           Gerald R. Bruce, Esquire.

                                                    Before

                               ALLRED, TELLER, and ZIMMERMAN1
                                    Appellate Military Judges

                                       OPINION OF THE COURT

            This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



ALLRED, Chief Judge:

      Appellant was tried at a general court-martial composed of officer members.2
Contrary to his pleas, he was found guilty of an indecent act and abusive sexual contact, in

1
 Senior Judge Teller and Judge Zimmerman participated in this decision prior to their retirements.
2
  After discussing with Appellant his forum rights, the military judge prematurely announced that the court was
assembled. Later, after the members were called and sworn, the judge properly announced assembly of the court.
violation of Article 120, UCMJ, 10 U.S.C. § 920. Appellant was found not guilty of
indecent visual recording of another, in violation of Article 120c, UCMJ, 10 U.S.C. § 920c.
The adjudged sentence was a bad-conduct discharge, confinement for 120 days, forfeiture
of all pay and allowances, and reduction to E-1. The convening authority approved the
adjudged sentence except that he reduced the forfeiture of all pay and allowances to
“forfeiture of all pay and allowances during confinement and forfeiture of $1,031.00 pay
per month thereafter until the bad conduct discharge is executed.”

       Before us, Appellant contends: (1) the military judge erred when he conducted trial
proceedings in the absence of detailed court members; (2) the trial judge abused his
discretion in admitting statements Appellant made to the victim; (3) the convening
authority improperly considered statements made by the victim during the clemency
process; and (4) the military judge erred in instructing the panel members. We disagree
and affirm the findings and sentence.3

                                                  Background

        While attending technical school in 2010, Appellant and the victim met and became
good friends. By early 2011, both were assigned to the same permanent duty station.
According to the victim, their relationship was never romantic, but they were very close—
like “brother and sister.” Eventually, they moved into a house, which they shared with
others and in which they kept separate bedrooms. While they were living in the house,
Appellant, at times, took photos of the victim without her permission while she was
sleeping. The photos included a brief video in which Appellant, having pulled down her
shorts in her darkened bedroom, touches and kisses the victim’s exposed buttocks. Further
facts necessary to address the assignments of error are discussed below.




See Rule for Courts-Martial (R.C.M) 911, Discussion (“When trial is by a court-martial with members, the court-
martial is ordinarily assembled immediately after the members are sworn.”) To the degree that the trial judge erred in
announcing assembly, we find such error to be harmless.
3
  At trial, the Defense made a written motion under Mil. R. Evid 412 (Appellate Exhibit XII), the Government
responded in writing (Appellate Exhibit XIII), and the military judge addressed these matters in a closed hearing. The
military judge ordered the transcript of the closed hearing sealed, and pages165–206 were properly sealed. See Mil
R. Evid. 412(c)(3) (stating that when a court-martial addresses matters under Mil R. Evid. 412, the “motion, related
papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.”). The
written motion and response were, however, not sealed. We hereby order that Appellate Exhibits XII and XIII be
sealed. We order record of trial pages 222–225, wherein the military judge addresses the Mil. R. Evid. 412 motion,
be sealed. We also order that the Government remove these exhibits and pages from all other copies of the record of
trial, as required by Air Force Manual 51-203, Records of Trial, ¶ 6.3.4 (27 June 2013).

         Additionally, we note that Prosecution Exhibits 1, 2, 3, 5, and 6, and Appellate Exhibits VII, XV, XIX and
XL involve sensitive victim images. We order that these exhibits be sealed and removed from all but the original
copy of the record of trial. See Air Force Manual 51-203, Records of Trial, ¶ 6.3 (27 June 2013).


                                                      2                                                  ACM 38755
                              I. Presence of Court Members

        After challenges and excusals, trial in this case began with five court members.
Government counsel made an opening statement and in doing so played the video clip in
which Appellant touched and kissed the victim’s exposed buttocks. The video was 38
seconds in length and had been previously admitted without objection. The Defense made
its opening statement. Then, as the Government was calling its first witness, one court
member disclosed that her husband had worked for the Defense Computer Forensics
Laboratory (DCFL). This led to individual voir dire of the member, a Defense challenge
for cause against her, and a Defense motion for mistrial based on grounds that the court
member might have tainted the remaining panel. The military judge denied the motion for
mistrial, but granted the Defense challenge for cause and excused the member. The
Defense then moved again for mistrial, on grounds that obtaining new members and
proceeding in accordance with Article 29(b), UCMJ, 10 U.S.C. § 829(b) and Rule for
Courts-Martial (R.C.M.) 805(d)(1) would result in “manifest injustice.” The military judge
denied this motion for mistrial.

       The next day, trial resumed with four new members properly detailed by the
convening authority. In the absence of the original panel members, the new members
received preliminary instructions and voir dire. Upon challenge, one of the four new
members was excused. The opening statements of both parties to the original panel had
been recorded, and these were played to the three new members, along with the 38-second
video clip. The original members were then called, and trial proceeded to its conclusion
with a panel of seven. Appellant argues before us now that his right to due process was
violated when the military judge conducted trial sessions with new panel members in the
absence of the four original members.

        “The constitutionality of an act of Congress is a question of law that we review de
novo.” United States v. Vasquez, 72 M.J. 13, 17 (C.A.A.F. 2013) (quoting United States
v. Ali, 71 M.J. 256, 265 (C.A.A.F. 2012)). To determine if “a statute is ‘unconstitutional
as applied,’ we conduct a fact-specific inquiry.” Id.

       Article 29(b), UCMJ, sets forth the procedure for addressing the loss of quorum at
a general court-martial.

             Whenever a general court-martial, other than a general court-
             martial composed of a military judge only, is reduced below
             five members, the trial may not proceed unless the convening
             authority details new members sufficient in number to provide
             not less than five members. The trial may proceed with the
             new members present after the recorded evidence previously
             introduced before the members of the court has been read to



                                         3                                       ACM 38755
              the court in the presence of the military judge, the accused, and
              counsel for both sides.

R.C.M. 805(d)(1) implements this statute as follows:

              Members. When after presentation of evidence on the merits
              has begun, a new member is detailed under R.C.M.
              505(c)(2)(B), trial may not proceed unless the testimony and
              evidence previously admitted on the merits, if recorded
              verbatim, is read to the new member, or, if not recorded
              verbatim, and in the absence of a stipulation as to such
              testimony and evidence, the trial proceeds as if no evidence has
              been presented.

       In arguing that the military judge erred by conducting sessions in the absence of
previously detailed members, Appellant neither cites nor attempts to distinguish his case
from Vasquez—the decision which is in our view controlling. As in the present case,
Vasquez involved a general court-martial where the panel fell below five members after
trial was underway, and where the trial judge, without the original members, impaneled
new members and presented them with opening statements and evidence received by the
original members. 72 M.J. at 16. As does Appellant now, Vasquez argued that the military
judge violated his rights by proceeding in accordance with Article 29(b), UCMJ, and
R.C.M. 805(d)(1).

        The facts supporting Vasquez were more compelling than those favoring Appellant
now. The Vasquez members were deep into the trial—having heard from five of the
government’s six witnesses—when their numbers fell below quorum. 72 M.J. at 16. Even
so, our superior court upheld the conviction, finding no violation of the appellant’s rights.
Id. at 21. Observing that the military judge had “scrupulously followed the procedures
established by Congress in Article 29(b), UCMJ, as implemented by the President under
R.C.M. 805(d)(1),” the court held that the military judge did not abuse his discretion in
declining to declare a mistrial. Id. at 17, 19. Rejecting any suggestion that “the statutory
scheme is unconstitutional on its face,” the court also found that Vasquez had not met his
burden of showing that Article 29(b), UCMJ, was unconstitutional as applied to him. Id.
at 17, 21.

       Appellant’s present assignment of error includes an argument that the trial judge
violated R.C.M. 805(b)—which states that, absent certain exceptions, “no court-martial
proceeding may take place in the absence of any detailed member.” We disagree. Among
the exceptions specified by R.C.M. 805(b) are instances in which any “member has been
excused under R.C.M. 505 or 912(f).” Rule for Courts-Martial 505 addresses changes of
court members, military judge, and counsel in general; and speaks directly to the
replacement of court members when, as a result of challenges, the panel is reduced below


                                          4                                        ACM 38755
a quorum. Rule for Courts-Martial 912(f) involves challenges and removal of court
members for cause. We read those provisions to allow for the absence of court members
under the circumstances of Appellant’s court-martial. In doing so, we note that our
superior court has pointedly rejected Appellant’s implied argument that an accused has the
“right to have all members be presented with all evidence in the same way.” Vasquez, 72
M.J. at 20.

       We find the present case to be distinguishable from Vasquez in no respect favorable
to Appellant. We find that, either directly or by necessary implication, Vazquez rejects all
of Appellant’s arguments before us. We find that the military judge did not abuse his
discretion in denying the motions for mistrial, and we find that he “scrupulously followed
the procedures” established by Congress and by the President. See Vasquez, 72 M.J. at 17.
In so doing, he committed no error, plain or otherwise.

                         II. Admission of Statements by Appellant

        In about November 2012, the victim discovered Appellant had made photos of her
without permission. As a result of this discovery, she confronted Appellant, and then
moved out of the house they shared. In June of 2013, while attending sexual assault
prevention training, the victim decided to report Appellant’s misbehavior in order to protect
others.

       Once involved, the Air Force Office of Special Investigations (AFOSI) asked the
victim to contact Appellant as part of a pretext operation. The victim agreed, and, under
AFOSI guidance, she exchanged with Appellant a series of text messages in which he
incriminated himself. During their text exchange, the victim also asked Appellant to bring
his computer and meet her on-base. He agreed, and they met at an on-base coffee shop the
following day. During this meeting, the victim wore concealed recording equipment
provided by the AFOSI which captured further admissions by Appellant. At the end of
this meeting, having obtained search authorization, the AFOSI seized Appellant’s laptop
computer, an external hard drive, and his cell phone. Found amongst these media were the
video and other photos of victim’s exposed buttocks.

       At trial, the Defense did not seek to exclude admissions made by Appellant while
texting the victim on the first day of their pretext encounter. The Defense did, however,
move to suppress statements he made at the coffee shop the following day, along with any
evidence derived therefrom. Defense counsel contended that, during the coffee shop
encounter, the victim was acting in a law enforcement capacity and was thus required to
provide rights warnings before eliciting admissions from him. The military judge denied
the motion, and Appellant now argues that he erred in doing so.

       We review a military judge’s ruling on a motion to suppress for an abuse of
discretion. United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014). “When there is a


                                          5                                        ACM 38755
motion to suppress a statement on the ground that rights’ warnings were not given, we
review the military judge’s findings of fact on a clearly-erroneous standard, and we review
conclusions of law de novo.” Id. Whether a questioner was acting or could reasonably be
considered to be acting in a law enforcement or disciplinary capacity is a question of law
requiring de novo review. Id. at 361. Article 31, UCMJ, 10 U.S.C. § 831, states in pertinent
part:

              (b) No person subject to this chapter may interrogate, or
              request any statement from an accused or a person suspected
              of an offense without first informing him of the nature of the
              accusation and advising him that he does not have to make any
              statement regarding the offense of which he is accused or
              suspected and that any statement made by him may be used as
              evidence against him in a trial by court-martial.

              ...

              (d) No statement obtained from any person in violation of this
              article, or through the use of coercion, unlawful influence, or
              unlawful inducement may be received in evidence against him
              in a trial by court-martial.

“Thus, Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ,
(2) interrogates or requests any statement, (3) from an accused or person suspected of an
offense, and (4) the statements regard the offense of which the person questioned is accused
or suspected.” Jones, 73 M.J. at 361.

        In Jones, however, our superior court noted that cases involving undercover officials
and informants involve unique considerations. The court stated, “Because undercover
officials and informants do not usually place the accused in a position where a reasonable
person in the accused’s position would feel compelled to reply to questions, . . . logic
dictates that Article 31(b), UCMJ, would not apply in those situations.” Id. at 361, n.5.
Modifying its previous ruling in United States v. Duga, 10 M.J. 206 (C.M.A. 1981), the
Jones court adopted a two-prong test for determining whether statements by an accused to
informants and undercover officials must be suppressed. The first prong is whether the
person who conducted the questioning was “‘participating in an official law enforcement
or disciplinary investigation or inquiry,’ as opposed to having a personal motivation for the
inquiry.” Id. at 361 (quoting United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000)).
The second prong applies an objective standard of a reasonable person in the suspect’s
position to determine whether that person would have concluded that the questioner was
acting in an official law enforcement or disciplinary capacity. Id. at 362.




                                          6                                        ACM 38755
       In the present case, the military judge made detailed findings of fact and applied the
Jones analysis. The military judge concluded that, under the first prong, the victim had
indeed acted in a law enforcement capacity during her communications with Appellant.
The military judge found, however, that the second prong of Jones had not been met. He
reasoned that, given the totality of the circumstances, a reasonable person in Appellant’s
position would not have considered the victim to be acting in an official law enforcement
or disciplinary capacity. The judge declared:

              [The victim] and Senior Airman Kmet had a long history
              together of being close friends. [The victim] met with Senior
              Airman Kmet at a public location which the two of them had
              frequented before under circumstances indicating their
              meeting as friends seeking to resolve a conflict and to give [the
              victim] closure. Nothing about the prior relationship between
              the two, the setting of the meeting or the circumstances
              surrounding the meeting would lead a reasonable person to
              believe that [the victim] was acting in an official law
              enforcement or disciplinary capacity. Accordingly, the
              Defense Motion to Suppress is hereby denied.

        Having carefully reviewed the record of trial, we concur with the military judge.
His findings of fact are supported by the record and are not clearly erroneous. He applied
the correct law and did not abuse his discretion under the circumstances of this case. We
reject this assignment of error.

                          III. Clemency Statement by the Victim

      Appellant argues the convening authority improperly considered prejudicial matters
submitted by the victim during clemency.

        Whether post-trial processing was completed properly is a question of law, which
this court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). When reviewing
post-trial errors, we recognize the convening authority is an appellant’s “best hope for
sentence relief.” United States v. Lee, 50 M.J. 296, 297 (C.A.A.F. 1999) (quoting United
States v. Bono, 26 M.J. 240, 243 n.3 (C.M.A. 1988)). The convening authority, not a court
of criminal appeals, is empowered to grant clemency for equitable reasons. United States
v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010). “Because of the highly discretionary nature
of the convening authority’s action on the sentence, we will grant relief if an appellant
presents ‘some colorable showing of possible prejudice.’” Kho, 54 M.J. at 65 (quoting
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)); see also United States v.
Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005).



                                          7                                        ACM 38755
       Article 60, UCMJ, 10 U.S.C § 860, provides the framework by which a convening
authority may take action and grant clemency. The statute was recently amended to include
a subsection (d) authorizing the submission of statements by the victim.4 National Defense
Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1706, 127 Stat. 672, 960–
61 (2013) (codified as amended at 10 U.S.C. § 860). Article 60, UCMJ, does not restrict
what a victim may submit, but allows broadly:

                 In any case in which findings and sentence have been adjudged
                 for an offense that involved a victim, the victim shall be
                 provided an opportunity to submit matters for consideration by
                 the convening authority or by another person authorized to act
                 under this section before the convening authority or such other
                 person takes action under this section.

Article 60(d)(1), UCMJ (emphasis added).

       In the present case, as part of the clemency process, the victim submitted a letter to
the convening authority discussing impact to her from Appellant’s crimes. Her comments
included the following:

                 The worst part of this whole situation is how this case was
                 charged. Without going into anything that would be improper
                 for me to say at this point and cause any unnecessary issues for
                 the processing of this case I will simply say that I was not
                 happy, despite the best efforts of my SVC, with how you and
                 your office chose to charge and prosecute this case.

Appellant argues that this comment was improper. Appellant further argues that because
he objected to this same victim comment when submitting his own clemency matters to the
convening authority, the Government was obliged to redact the victim’s comment or to
address it as a legal matter in its Staff Judge Advocate Recommendation (SJAR).5 We are
not persuaded.


4
  Article 60(d)(5), UCMJ, 10 U.S.C. § 860(d)(5) defines “victim” as “a person who has suffered a direct physical,
emotional, or pecuniary harm as a result of a commission of an offense under [the UCMJ].”
5
  Under R.C.M. 1106(d)(4), an SJA is obligated to

                 state whether, in the staff judge advocate’s opinion, corrective action on the
                 findings or sentence should be taken when an allegation of legal error is raised in
                 matters submitted under R.C.M. 1105 or when otherwise deemed appropriate by
                 the staff judge advocate. The response may consist of a statement of agreement
                 or disagreement with the matter raised by the accused. An analysis or rationale
                 for the staff judge advocate’s statement, if any, concerning legal error is not
                 required.



                                                     8                                                 ACM 38755
       We recently addressed a similar challenge in United States v. Pheasant, ACM
S32237 (A.F. Ct. Crim. App. 16 September 2015) (unpub. op.). There, in submitting
matters to the convening authority during clemency, a victim made what were arguably
references to offenses for which Pheasant had not been convicted. In Pheasant, we held
that the victim’s comments were not inappropriate for consideration by the convening
authority; and the staff judge advocate (SJA) neither erred in allowing the convening
authority to consider the matters, nor in declining to address the errors in the SJAR.

        We find that the present case is not distinguishable from Pheasant in any way
favorable to Appellant. As noted above, Article 60(d), UCMJ, does not limit what a victim
may submit to the convening authority. As sole legal authority for his claim that such
limits do exist and were violated in his case, Appellant cites Air Force Instruction (AFI)
51-201, Administration of Military Justice, Figure 9.2, (6 June 2013) (as modified by Air
Force Guidance Memorandum 2014-01 (25 September 2014)).6 Figure 9.2 is a proposed
template letter by which the SJA to the convening authority may inform victims of their
right to submit matters during clemency. Appellant’s theory that the template places
restrictions upon the rights explicitly granted to victims by Congress is, in our view,
tenuous. However, even if we accept Appellant’s view that such limits do exist, we find
no impropriety in any comment made by the victim in this case. The victim’s generalized
statement of dissatisfaction regarding the manner in which this case was charged and
prosecuted violated no right of the Appellant, and indeed seems precisely the type of
expression Article 60(d), UCMJ, was meant to allow.

       Here—as in Pheasant and for the reasons stated therein—we find that the SJA did
not err in presenting the victim’s complete statement to the convening authority, and
Appellant’s post-trial submissions did not amount to an allegation of legal error requiring
a response by the SJA. We find no error in the clemency process nor any “colorable
showing of possible prejudice” to Appellant. See Kho, 54 M.J. at 65.

                                           IV. Instruction to Court Members



6
    Figure 9.2 states in pertinent part:

                     You may submit a statement in writing to [the Convening Authority’s SJA] for
                     consideration in advising the Convening Authority. The choice is entirely yours.
                     This statement could describe the impact [Appellant’s] crime had on your life.
                     You may also discuss whether you believe the Convening Authority should
                     approve the findings and sentence or grant some form of clemency. However,
                     this statement should not reference any crimes for which [Appellant] was not
                     convicted of by the court-martial in order to avoid any prejudice to [his] post-trial
                     rights.

Air Force Instruction 51-201, Administration of Military Justice, Figure 9.2 (6 June 2013) (as modified by Air Force
Guidance Memorandum 2014-01 (25 September 2014)).


                                                          9                                                  ACM 38755
       In preliminary instructions prior to voir dire, and again before their deliberations on
findings, the military judge gave the court members the standard Air Force instruction on
reasonable doubt. That instruction includes the following sentence: “If, based on your
consideration of the evidence you are firmly convinced that the accused is guilty of the
offenses charged, you must find him guilty.” (Emphasis added). Appellant made no
objection to this instruction at trial. On appeal Appellant now argues that the instruction—
particularly its use of the word “must”—was erroneous.

       It is the military judge’s duty to properly instruct the members at trial. See United
States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001). A military judge’s decision to
provide an instruction is reviewed for an abuse of discretion. United States v. Maxwell, 45
M.J. 406, 424 (C.A.A.F. 1996). However, “[t]he propriety of the instructions given by the
military judge is reviewed de novo.” Quintanilla, 56 M.J. at 83. Moreover, where the
defense has made no challenge at trial to the instruction contested on appeal, the matter has
been forfeited absent plain error.7 See R.C.M. 920(f). If we find error, we must then
determine whether the error was harmless beyond a reasonable doubt. United States v.
Medina, 69 M.J. 462, 465 (2011).

        The language used by the military judge in Appellant’s case is—and has been for
many years—an accepted reasonable doubt instruction used in Air Force courts-martial.
See, e.g., United States v. Sanchez, 50 M.J. 506, 509–10 (A.F. Ct. Crim. App. 1999); see
also United States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984) (upholding similar
language). It was in fact offered by our superior court as a suggested instruction. United
States v. Meeks, 41 M.J. 150, 157 n.2 (C.M.A. 1994) (citing Federal Judicial Center, Pattern
Criminal Jury Instruction 17–18 (1987)). We do not find the military judge committed
error, plain or otherwise, in giving the instruction.

                                                   Conclusion

       The findings and sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.




                  FOR THE COURT


                  LEAH M. CALAHAN
                  Clerk of the Court

7
 Although we recognize that the rule speaks of “waiver,” this is, in fact, forfeiture. United States. v. Sousa, 72 M.J.
643, 651–52 (A.F. Ct. Crim. App. 2013).


                                                      10                                                  ACM 38755
