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

                           No. ACM 39352
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                        Milford C. SCOTT
              Captain (O-3), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 10 May 2019
                      ________________________

Military Judge: Joseph S. Imburgia.
Approved sentence: Dismissal and confinement for 8 months. Sentence
adjudged 24 June 2017 by GCM convened at Davis-Monthan Air Force
Base, Arizona.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, HUYGEN, and POSCH, Appellate Military Judges.
Senior Judge HUYGEN delivered the opinion of the court, in which
Senior Judge JOHNSON and Judge POSCH joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                       United States v. Scott, No. ACM 39352


HUYGEN, Senior Judge:
    A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of three specifications of assault consummated by a bat-
tery and one specification of fraternization in violation of Articles 128 and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 928, 934. 1,2 The
members adjudged a sentence of a dismissal and confinement for eight
months. The convening authority approved the sentence as adjudged.
    Appellant raises three assignments of error (AOE): (1) Appellant’s convic-
tions of three specifications of assault consummated by a battery are not le-
gally and factually sufficient; (2) Appellant’s conviction of fraternization is
not legally and factually sufficient; and (3) the military judge erred by admit-
ting improper evidence during sentencing. 3 We also considered the issue of
timely appellate review. We find prejudicial error with regard to AOE (2) and
thus set aside Appellant’s conviction of fraternization and the sentence. 4

                                   I. BACKGROUND
   On the night of Friday, 18 March 2016, Appellant, a captain (O-3), and
EC, then an airman first class (E-3), 5 stopped in several places to play pool
and went to Playground, a nightclub in Tucson, Arizona. They left the club at
approximately 0100 or 0200 hours on Saturday, 19 March 2016. EC was driv-
ing and Appellant was riding in the front passenger seat of EC’s car. They


1 For the three assault specifications, the members found Appellant not guilty of the
excepted word “fist” (as in “strike in the face with his fist”) but guilty of the substi-
tuted word “hand.” The members also found Appellant not guilty of one specification
of conduct unbecoming an officer and gentleman and one specification of communi-
cating a threat in violation of Articles 133 and 134, UCMJ, 10 U.S.C. §§ 933, 934.
2All references in this opinion to the UCMJ, Rules for Courts-Martial, and Military
Rules of Evidence are to the UCMJ and rules found in the Manual for Courts-
Martial, United States (2016 ed.) (MCM).
3   We do not address AOE (3) because of our resolution of AOE (2).
4 The military judge failed to announce that the court-martial was assembled. See
Rule for Courts-Martial (R.C.M.) 911 (“The military judge shall announce the assem-
bly of the court-martial.”). Assembly of the court is significant for a variety of rea-
sons. See R.C.M. 911, Discussion. However, we find that the military judge’s failure
had no substantive effect on Appellant’s trial and thus was harmless error.
5EC, a senior airman (E-4) at the time of Appellant’s trial, was ordered to testify un-
der a grant of immunity and listed as a prosecution witness but was actually called
and testified as a defense witness.




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                    United States v. Scott, No. ACM 39352


tried to drive out of the parking lot, but a group of six to eight people stood in
the way and would not move, even after EC flashed the car’s headlights and
honked the horn. The group included RD, JA, and VG.
    RD, JA, VG, and several other friends had been drinking at Zen Rock, a
nightclub near Playground. After leaving the club, they were walking
through a parking lot when RD and JA stopped in front of EC’s car. Appel-
lant yelled at the two women that they were “hot” but “you bi[**]hes need to
get the f[**]k out of the way.” RD testified that she heard the word “bi[**]h,”
“got mad,” and yelled back while JA tapped the hood of EC’s car and also re-
fused to move. Appellant got out of the car and EC followed Appellant to try
to convince him to get back into the car. Both Appellant and EC appeared to
be drunk according to AM, who was in the group with RD, JA, and VG.
    Appellant got “in [RD’s] face,” and the two had what RD described as “a
pretty heated argument” with each cursing at the other. Appellant said to
RD, “I’m not afraid to slap a bi[**]h,” and RD replied, “Oh yeah, you going to
hit me? Then hit me then.” Appellant then hit RD with his hand. JA testified
that RD was knocked down but popped right back up and raised her hand to
hit Appellant. But “before she even touched his face,” Appellant hit RD a sec-
ond time. As JA described it, “That’s when I go into the scene and I’m like
yelling at him, cursing at him. . . . And when I’m going towards him and he
says, ‘Oh, you want some of this too?’” AM testified that he was “holding
back” JA when Appellant hit JA. VG saw Appellant hit RD and JA, ran to-
wards her two friends, followed EC around the back of the car, and then,
cursing and yelling, approached Appellant, at which point Appellant hit VG.
As other people came closer, Appellant and EC got back into the car and
drove away. AM called 911 and reported the incident to the Tucson Police
Department. RD left before the police arrived, but JA and VG provided
statements to the police and had their injuries photographed. Each of the
women’s faces had a reddened mark where she was apparently hit.
    When Appellant testified at trial, he described the first physical contact of
the confrontation as him being pushed in the chest by a Hispanic male, pos-
sibly AM. After more words were exchanged, Appellant thought that the
group was walking away until one Hispanic female turned around and “eve-
ryone starts to charge me. . . . And two females shoved me and that is why I
shoved them back.” He did not remember a third female being involved. RD,
JA, and VG were each described as a Hispanic woman less than five feet five
inches in height but wearing high-heeled shoes on the night in question. Eve-
ryone in their group of six to eight people, including AM, was described as
Hispanic. Appellant was described as a six foot two inch African American
man and EC as a five foot ten inch Hispanic man.



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                    United States v. Scott, No. ACM 39352


   Almost one month later, on the night of 16 April 2016, JA, VG, and two
others were at Playground when JA saw Appellant and EC and recognized
Appellant as her assailant. One of JA’s companions contacted the police, who
arrested Appellant when he walked out of the club.

                               II. DISCUSSION
A. Legal and Factual Sufficiency: Assault Consummated by Battery
    Appellant first asserts that his convictions of three specifications of as-
sault consummated by a battery are not legally and factually sufficient. Ap-
pellant points to (1) the contradictory and “false” statements of the three vic-
tims—RD, JA, and VG; (2) the evidence that RD used her status as a crime
victim to try to get preferential treatment for a visa and that the victims’ in-
juries were not consistent with their accounts; and (3) the evidence that Ap-
pellant acted in self-defense. Contrary to Appellant’s assertion, we conclude
the assault convictions are legally and factually sufficient.
   1. Law
    We review issues of legal and factual sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual suffi-
ciency is limited to the evidence produced at trial. United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993) (citations omitted). The test for legal sufficiency
of the evidence is “whether, considering the evidence in the light most favor-
able to the prosecution, a reasonable factfinder could have found all the es-
sential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasona-
ble doubt.” Id. at 325. “In conducting this unique appellate role, we take ‘a
fresh, impartial look at the evidence,’ applying ‘neither a presumption of in-
nocence nor a presumption of guilt’ to ‘make [our] own independent determi-
nation as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.’” United States v. Wheeler, 76 M.J. 564, 568 (A.F.
Ct. Crim. App. 2017) (alteration in original) (quoting Washington, 57 M.J. at
399), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
    In order for Appellant to be found guilty of assault consummated by a bat-
tery under Article 128, UCMJ, the Government was required to prove beyond
a reasonable doubt that (1) Appellant did bodily harm to RD, JA, and VG by
striking each in the face with his hand and (2) the bodily harm was done with
unlawful force or violence. See Manual for Courts-Martial, United States

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                    United States v. Scott, No. ACM 39352


(2016 ed.) (MCM), pt. IV, ¶ 54.b.(2). An “assault” is done without legal justifi-
cation or excuse and without the lawful consent of the victim. Id. ¶ 54.c.(1)(a).
A “battery” is an assault in which the attempt to do bodily harm is consum-
mated by the infliction of that harm. Id. ¶ 54.c.(2)(a).
    Self-defense is a defense to assault consummated by a battery and re-
quires that (1) Appellant had a reasonable belief that physical harm was
about to be inflicted on him and (2) Appellant actually believed that the
amount of force he used was required to protect himself. See Rule for Courts-
Martial (R.C.M.) 916(e)(3). The right to self-defense is lost if Appellant was
an aggressor, engaged in mutual combat, or provoked the attack that gave
rise to the apprehension, unless Appellant had withdrawn in good faith after
the aggression, combat, or provocation and before the offense alleged oc-
curred. R.C.M. 916(e)(4). Failure to retreat, when retreat is possible, does not
deprive a person of the right to self-defense. R.C.M. 916(e)(4), Discussion. The
availability of avenues of retreat is one factor that may be considered in ad-
dressing the reasonableness of a person’s apprehension of bodily harm and
the sincerity of the person’s belief that the force used was necessary for self-
protection. Id. The principles of self-defense apply to defense of another.
R.C.M. 916(e)(5). The prosecution has the burden of proving beyond a reason-
able doubt that the defense does not exist. R.C.M. 916(b)(1).
   2. Analysis
    Appellant argues that the weaknesses in the Government’s case should
lead us to conclude that the assault convictions are legally and factually in-
sufficient. This argument fails to account for three key considerations.
    First, with regard to the trial testimony of RD, JA, VG, and AM about the
assaults, there was no significant contradiction. Instead, all the testimony
was consistent that RD and JA prevented EC’s car from exiting the parking
lot, Appellant yelled and cursed at RD and JA, RD yelled back and JA tapped
the hood of the car, and then Appellant got out of the car. Appellant and RD
were in each other’s “face” when Appellant warned RD he would hit her, RD
acknowledged the warning, and Appellant hit RD. After Appellant hit RD a
second time, he hit JA and VG in quick succession. We decline to interpret
RD’s acknowledgement (“Oh yeah, you going to hit me? Then hit me then.”) of
Appellant’s warning (“I’m not afraid to slap a bi[**]h.”) as RD’s consent to be-
ing hit. We also decline Appellant’s invitation to interpret his acquittal of the
threat charge either as an affirmative finding that RD, JA, and VG were ly-
ing about Appellant communicating a threat and therefore lying about other
matters or as anything more than the Government’s failure to prove beyond a
reasonable doubt that Appellant communicated a threat.




                                       5
                     United States v. Scott, No. ACM 39352


    Second, we agree with Appellant that RD tried to use her status as a
crime victim to get preferential treatment for a visa. However, we do not
agree that the attempt undermined her credibility when she testified at trial
about the basic facts of the assaults, especially because she did not remember
Appellant hitting her the first time, which was described by JA, and she did
not try to minimize the hostile nature of her actions or the fact that she was
about to retaliate when Appellant hit her a second time. In addition, we find
that the other witnesses’ testimony about RD being hit and the photographic
evidence of JA and VG’s injuries were substantially consistent with the three
victims’ accounts as well as the court members’ findings that Appellant hit
each victim with his hand but did not punch any of them with his fist.
    Third, we are convinced that Appellant did not act in self-defense when he
hit RD, JA, or VG. Although RD and JA’s refusal to move from in front of
EC’s car was obnoxious, Appellant was the first to engage when he yelled at
them and called them “bi[**]hes.” Even after he got out of the car, he could
have regained the right to self-defense if he had withdrawn, see United States
v. Behenna, 71 M.J. 228, 235 (C.A.A.F. 2012), but he did not withdraw. Alt-
hough Appellant was not required to retreat, the totality of his actions, in-
cluding his ignoring EC’s entreaty to get back in the car, undercut his conten-
tion that he reasonably believed he was at risk of physical harm or that he
actually believed he needed to hit RD, JA, or VG in order to protect himself or
EC. There was also no evidence other than Appellant’s own testimony that a
group of six to eight people charged at him. We acknowledge Appellant’s po-
tential justification for hitting RD the second time when she raised her hand
to retaliate, 6 as well as Appellant’s position of being under verbal attack first
by JA while she was held back by AM and then by VG after JA was hit.
Nonetheless, we find Appellant’s theory of self-defense failed.
    Considering the evidence in the light most favorable to the prosecution,
particularly the straightforward and consistent testimony about the assaults,
a reasonable factfinder could have found all the essential elements beyond a
reasonable doubt and been convinced both that the Government proved be-
yond a reasonable doubt that the defense of self-defense did not exist and
that Appellant was guilty beyond a reasonable doubt. After weighing the evi-
dence in the record and making allowances for not having personally ob-
served the witnesses, we are so convinced.

6 But see United States v. Wilhelm, 36 M.J. 891, 893 (A.F. Ct. Crim. App. 1993) (quot-
ing United States v. O’Neal, 36 C.M.R. 189, 193 (C.M.A. 1966)) (“Both parties to a
mutual combat are wrongdoers, and the law of self-defense cannot be invoked by ei-
ther, so long as he continues in the combat.”).




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                    United States v. Scott, No. ACM 39352


B. Legal and Factual Sufficiency: Fraternization
   Appellant next claims that his conviction of fraternization is not legally
and factually sufficient and bases his claim on the Government’s failure to
prove beyond a reasonable doubt three elements of the offense. 7 We agree
with regard to two elements, conclude the conviction is legally and factually
insufficient, and set it aside.
    1. Additional Background
   The fraternization charge for violation of Article 134, UCMJ, read as fol-
lows:
       In that [Appellant] did, at or near Tucson, Arizona, on or about
       19 March 2016, knowingly fraternize with Airman First Class
       [EC], an enlisted person, on terms of military equality, to wit:
       socializing in an off-duty setting, in violation of the custom of
       the United States Air Force that officers shall not fraternize
       with enlisted persons on terms of military equality, such con-
       duct being to the prejudice of good order and discipline in the
       armed forces.
    At Appellant’s trial, AM testified that, in the parking lot on the night of
18–19 March 2016, Appellant and EC appeared “drunk.” However, there was
no evidence that either engaged in criminal conduct or inappropriate behav-
ior while socializing in the hours before trying to drive out of the parking lot.
    The Government requested judicial notice of the definition of fraterniza-
tion in Air Force Guidance Memorandum 2017–01 to Air Force Instruction
(AFI) 36–2909, Professional and Unprofessional Relationships, ¶ 2.2.1 (13
Mar. 2017). The civilian defense counsel and Appellant stated they had no
concerns with such notice, which the military judge decided to take.
   During the Government’s case-in-chief, it called no witness specifically to
address the fraternization charge or any of its elements. After the Govern-
ment rested, the Defense moved to dismiss the charge pursuant to R.C.M.
917 and cited the lack of evidence of EC’s enlisted status, custom of the Air
Force, and conduct prejudicial to good order and discipline. The military
judge ruled that there was “some evidence” of EC’s enlisted status and denied
the motion without addressing the issues of Air Force custom and prejudicial
conduct.


7 We do not address Appellant’s contention regarding a “recklessness” mens rea for
fraternization as we need not do so in order to resolve the assignment of error.




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                   United States v. Scott, No. ACM 39352


    EC testified during the Defense’s case-in-chief that Appellant and EC had
been friends since high school when they took classes, worked out, and gen-
erally spent a lot of time together. EC described Appellant’s mother as a sec-
ond mother and Appellant as a brother. Appellant’s mother in turn described
EC as “a son to me . . . and my husband.” Appellant testified that he was
closer to EC than to his actual brother and sister. He and EC remained
friends after Appellant, who was a grade ahead of EC, went to college. EC
attended Appellant’s college graduation and Air Force commissioning cere-
mony, and Appellant inspired EC to enlist in the Air Force. EC was assigned
to Davis-Monthan Air Force Base, Arizona, three or four months before Ap-
pellant was assigned to the base in 2013. The assignment was Appellant’s
first non-training or operational assignment. He and EC were not in the
same squadron or rating chain and had no contact with each other at work.
    In accordance with the military judge’s decision on judicial notice, he in-
structed the court members as follows:
           The “custom of the Air Force” with respect to fraternization
       as it existed at the time of the alleged offense is discussed in
       paragraph 2.2.1 of Air Force Instruction (AFI) 36-2909, Profes-
       sional and Unprofessional Relationships, dated 1 May 1999. I
       have taken judicial notice of that particular provision, which
       includes the following definition of fraternization:
           Fraternization, as defined by the Manual for Courts-
       Martial, is a personal relationship between an officer and an
       enlisted member that violates the customary bounds of ac-
       ceptable behavior in the Air Force and prejudices good order
       and discipline, discredits the armed services, or operates to the
       personal disgrace or dishonor of the officer involved. The cus-
       tom recognizes that officers will not form personal relation-
       ships with enlisted members on terms of military equality,
       whether on or off-duty.
           Although the custom originated in an all-male military, it is
       gender neutral. Fraternization can occur between males, be-
       tween females and between males and females. Because of the
       potential damage fraternization can do to morale, good order,
       discipline, and unit cohesion, the President specifically provid-
       ed for the offense of fraternization in the Manual for Courts-
       Martial.
   2. Law
   The standard of review for legal and factual sufficiency is as stated above.



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                    United States v. Scott, No. ACM 39352


    In order for Appellant to be found guilty of fraternization under Article
134, UCMJ, the Government was required to prove beyond a reasonable
doubt that (1) Appellant was a commissioned officer; (2) on or about 19 March
2016, Appellant fraternized on terms of military equality with Airman First
Class (A1C) EC by socializing in an off-duty setting; (3) Appellant knew
A1C EC to be an enlisted member; (4) such fraternization violated the custom
of the Air Force that officers shall not fraternize with enlisted members on
terms of military equality; and (5) under the circumstances, Appellant’s con-
duct was to the prejudice of good order and discipline in the armed forces. See
MCM, pt. IV, ¶ 83.b.
        Not all contact or association between officers and enlisted per-
        sons is an offense. Whether the contact or association in ques-
        tion is an offense depends on the surrounding circumstances.
        The acts and circumstances must be such as to lead a reasona-
        ble person experienced in the problems of military leadership
        to conclude that the good order and discipline of the armed
        forces has been prejudiced by their tendency to compromise the
        respect of enlisted persons for the professionalism, integrity,
        and obligations of an officer.
Id. ¶ 83.c.(1).
    3. Analysis
    The military judge instructed the court members on the five elements of
fraternization and the general explanation of fraternization we cite above.
Appellant challenges on appeal whether the Government proved beyond a
reasonable doubt elements (2), (4), and (5). We conclude that Appellant’s con-
viction is legally and factually insufficient with respect to elements (2) and
(4), that is, on 19 March 2016, Appellant fraternized by socializing with
A1C EC in an off-duty setting and such fraternization violated a custom of
the Air Force.
    We begin our analysis by noting the dearth of cases dealing with officer-
enlisted relationships that pre-date both members’ military service; that do
not implicate a superior-subordinate connection; or that do not involve sexual
activity. See, e.g., United States v. Wales, 31 M.J. 301, 302 (C.M.A. 1990)
(“Once again, we must review an officer’s conviction for fraternizing with an
enlisted person. Once again, the gravamen of the fraternization charge is
that there was sexual intercourse between the two.” (footnote omitted)). As a
result, we are left to apply the “law” of fraternization to the singular facts of
the fraternal relationship between Appellant and A1C EC, which pre-dated
by more than five years their military service; did not implicate official duty,




                                       9
                      United States v. Scott, No. ACM 39352


much less a superior-subordinate connection; and certainly did not involve
any sexual activity or even a hint of a romantic inclination.
    We next turn to the charge the Government decided to prosecute and note
its two most glaring weaknesses: (1) the charge was very specific to the night
of 19 March 2016 and A1C EC 8 and (2) the charge was very general about the
criminal conduct at issue being “socializing in an off-duty setting.” 9 We also
note that the Government requested and the military judge agreed to take
judicial notice of AFI 36–2909 for the very limited purpose of a definition of
fraternization. We paraphrase that definition—a personal relationship is
fraternization if it violates a custom of the Air Force and it violates a custom
of the Air Force if it is fraternization—and find it to be singularly uninstruc-
tive. 10
    In Wales, the Court of Military Appeals (CMA), the predecessor to the
United States Court of Appeals for the Armed Forces, was “troubled that a
‘custom’ which is the basis for trying appellant for a crime authorizing the
punishment of dismissal and 2 years’ confinement was to be proved at trial
by nothing more than a general statement in a nonpunitive regulation.” 31
M.J. at 309. The CMA went on to question whether judicial notice of such a
statement was proper and concluded:
        [I]f the Government wishes to prosecute fraternization on the
        basis of a custom in the military service, testimony must be of-
        fered by a knowledgeable witness—subject to cross-
        examination—about that custom. To require less is to allow the
        factfinder to make a determination that the custom exists
        without any indication on the record as to what that custom is.




8 A1C EC indicated that a second enlisted member participated in the initial social
activity the night of 18–19 March 2016, but that member was never identified, did
not go to Playground with A1C EC and Appellant, and was not present in the park-
ing lot for the confrontation.
9 In motions practice during the presentencing proceeding, the Government made
clear that the conduct “underlying the fraternization is socializing. . . . [T]he fraterni-
zation charge does not include any language that might suggest [the court members]
were to use the assault of the three young women that night to [convict Appellant of
fraternization]. It was merely socializing.”
10We recognize that AFI 36–2909 is, in part, a punitive regulation, but the military
judge did not take notice of its punitive provisions, and Appellant was not charged
with a violation of the regulation under Article 92, UCMJ, 10 U.S.C. § 892.




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                    United States v. Scott, No. ACM 39352


Id.; see also United States v. Appel, 31 M.J. 314, 320 (C.M.A. 1990) (“[A] cus-
tom is not a subject for judicial notice . . . . With respect to the Air Force cus-
tom against fraternization . . . no one can say . . . that the extent of this cus-
tom is so clear as to dispense with the requirement of proof.”).
   Both Appellant and the Government in their respective briefs discussed
United States v. Fox, 34 M.J. 99 (C.M.A. 1992). While our reading of the case
does not strictly align with that of either party, we apply Fox to determine
the factual and legal insufficiency of Appellant’s fraternization conviction. In
particular, we find applicable the CMA’s continuation in Fox of its reasoning
in Wales: “The Manual lists violation of ‘custom’ as an element of the offense.
Likewise, a violation of ‘custom’ is alleged in the specification. The failure of
the Government to prove adequately what the Air Force ‘custom’ was pre-
cludes us from upholding the findings of guilty as to fraternization.” Fox, 34
M.J. at 103.
    During Appellant’s trial, the Government, in the entirety of its findings
case-in-chief, called no military witness. Unsurprisingly, none of its civilian
witnesses addressed any of the elements of the uniquely military offense of
fraternization. As noted by Appellant in his brief, the Defense brought to the
attention of the military judge the absence of evidence, including of custom of
the Air Force, by moving for dismissal of the fraternization charge pursuant
to R.C.M. 917. While the military judge addressed the evidence of A1C EC’s
enlisted status, the military judge did not address the evidence—or lack
thereof—of Air Force custom or prejudicial conduct. We do here: the Govern-
ment presented no evidence of custom of the Air Force, particularly with re-
spect to officers and enlisted members socializing in an off-duty setting. Cf.
United States v. McCreight, 43 M.J. 483, 485 (C.A.A.F. 1996) (noting “[t]here
are appropriate circumstances for officers and their enlisted subordinates to
socialize” but affirming first lieutenant’s conviction for fraternization with a
senior airman where the lieutenant was the airman’s supervisor; the lieuten-
ant “showed partiality and preferential treatment” to the airman at work; the
two often socialized together in private and public settings while off-duty;
and three government witnesses testified about the custom of the Air Force).
See also AFI 36–2909, ¶ 3.4 (“It is often the frequency of [shared] activities . .
. which causes them to become, or to be perceived to be, unprofessional. While
an occasional . . . activity between a supervisor and a subordinate could re-
main professional, daily or weekly activities could result at a minimum in the
perception of an unprofessional relationship.”).
    As the CMA found in Wales, we find in Appellant’s case that the Govern-
ment “did not adequately discharge its burden of proving the nature of the
custom on which it relied to convict” Appellant for fraternization under Arti-
cle 134, UCMJ. See Wales, 31 M.J. at 309. The Government failed to intro-


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                    United States v. Scott, No. ACM 39352


duce evidence that would enable a reasonable factfinder to have found all the
essential elements of the offense as it was charged, and we are not convinced
of Appellant’s guilt. Therefore, we conclude Appellant’s conviction for frater-
nization is legally and factually insufficient, and we set it aside.
     4. Sentence Rehearing
    Because we set aside the findings of guilty of fraternization, or Specifica-
tion 2 of Charge III and Charge III, we consider whether we can reassess the
sentence. We have “broad discretion” first to decide whether to reassess a
sentence and then to arrive at a reassessed sentence. United States v. Winck-
elmann, 73 M.J. 11, 12 (C.A.A.F. 2013). To determine whether to reassess a
sentence or order a rehearing, we consider the totality of the circumstances,
including the following illustrative, non-exhaustive factors: (1) “Dramatic
changes in the penalty landscape and exposure;” (2) “Whether an appellant
chose sentencing by members or a military judge alone;” (3) “Whether the na-
ture of the remaining offenses capture[s] the gravamen of criminal conduct
included within the original offenses and . . . whether significant or aggravat-
ing circumstances addressed at the court-martial remain admissible and rel-
evant to the remaining offenses;” and (4) “Whether the remaining offenses
are of the type that judges of the courts of criminal appeals should have the
experience and familiarity with to reliably determine what sentence would
have been imposed at trial.” Id. at 15–16 (citations omitted).
    Noting Appellant’s request for the specific relief of sentence reassessment,
we have considered the totality of the circumstances and decide to authorize
a sentence rehearing. By setting aside the fraternization conviction, we are
setting aside the more serious charge of which Appellant was convicted and
thereby reducing his penalty exposure from 42 months of confinement to 18.
In addition, Appellant chose trial and sentencing by members, a factor of fo-
rum selection made “more relevant” because the charge we set aside involves
custom of the Air Force and conduct prejudicial to good order and discipline.
See id. at 16. We also considered that the remaining assault offenses do not
capture the gravamen of criminal conduct originally charged. 11 Although the


11Because the gravamen of the original charges is not entirely captured in the as-
sault offenses, the third Winckelmann factor weighs in favor of rehearing. While we
do not determine “whether significant or aggravating circumstances addressed at the
court-martial remain admissible and relevant to the remaining offenses,” see Winck-
elmann, 73 M.J. at 16, we note the concerns raised by Appellant regarding the ad-
mission of the Personal Data Sheet, nonjudicial punishment action under Article 15,
UCMJ, 10 U.S.C. § 815, letter of reprimand, and unfavorable information file as
prosecution exhibits for sentencing.




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                    United States v. Scott, No. ACM 39352


remaining offenses of assault consummated by a battery are of the type with
which we are experienced and familiar, the other Winckelmann factors pre-
vent us from reliably determining in Appellant’s case “what sentence would
have been imposed at trial.” See id. Therefore, we authorize a rehearing.
C. Timeliness of Appellate Review
    We review de novo whether an appellant has been denied the due process
right to a speedy post-trial review and appeal. United States v. Moreno, 63
M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). A presumption of unrea-
sonable delay arises when appellate review is not completed and a decision is
not rendered within 18 months of the case being docketed. Id. at 142. When a
case is not completed within 18 months, such a delay is presumptively unrea-
sonable and triggers an analysis of the four factors laid out in Barker v.
Wingo, 407 U.S. 514, 530 (1972): “(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 (citations omitted).
   Appellant’s case was originally docketed with the court on 26 October
2017. The delay in rendering this decision by 26 April 2019 is presumptively
unreasonable. However, we determine no violation of Appellant’s right to due
process and a speedy post-trial review and appeal.
    The delay in this case exceeded the Moreno standard by two weeks. The
reasons for the delay include the time required for Appellant to file his brief
on 22 August 2018 and the Government to file its answer on 21 September
2018. Appellant has not asserted his right to speedy appellate review. Appel-
lant began his eight months of confinement on 24 June 2017 and was re-
leased at least six months before his brief was filed. Appellant makes no
claim of prejudice—whether oppressive incarceration, anxiety and concern, or
impaired appeal or defenses, see id. at 138–39—as a result of the delay for
the court to complete appellate review of his case. We find none.
    Finding no Barker prejudice, we also find the delay is not so egregious
that it “adversely affects the public’s perception of the fairness and integrity
of the military justice system.” See United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). As a result, there is no due process violation. See id. In addi-
tion, we determine that relief is not warranted in the absence of a due process
violation. See United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002);
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).

                               III. CONCLUSION
  The findings of guilt of Specification 2 of Charge III and Charge III are
SET ASIDE and Specification 2 of Charge III and Charge III are DIS-

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                   United States v. Scott, No. ACM 39352


MISSED WITH PREJUDICE. The sentence is SET ASIDE. The case is re-
turned to The Judge Advocate General for further processing consistent with
this opinion. A rehearing on sentence is authorized. Article 66(e), UCMJ, 10
U.S.C. § 866(e).


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




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