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

                           No. 201400241
                       _________________________

                UNITED STATES OF AMERICA
                               Appellee
                                   v.
                     DAVID MONTALVO III
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

       Military Judge: Lieutenant Colonel C.J. Thielemann ,
                        U.S. Marine Corps.
    For Appellant: James S. Trieschmann, Jr., Esq.; Lieutenant
           Christopher C. McMahon, JAGC, U.S. Navy.
For Appellee: Major Cory A. Carver, U.S. Marine Corps; Lieutenant
               James M. Belforti, JAGC, U.S. Navy.
                     _________________________

                     Decided 15 December 2016
                      _________________________

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

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

   RUGH, Judge:

   A general court-martial consisting of officer and enlisted members
convicted the appellant, contrary to his pleas, of two specifications of
rape in violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920. The members sentenced the appellant to
nine years’ confinement, reduction to pay grade E-1, and a
dishonorable discharge. The convening authority (CA) approved the
sentence as adjudged.
                  United States v. Montalvo, No. 201400241


   The appellant originally raised two assignments of error (AOE): (1)
that the military judge erred by denying the appellant’s request for a
continuance1 and (2) that the appellant was denied his Sixth
Amendment right to effective counsel in the post-trial phase of his
court-martial.2
   On 27 May 2015 this court found merit in AOE (1) and set aside the
findings and sentence.3 However, on 10 July 2015 we reconsidered our
decision and returned the record for a hearing held pursuant to United
States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). On 3 February 2016 we
returned the record for an additional DuBay hearing, and the record
and results of the hearing were returned to us on 29 April 2016.
   The appellant now raises as supplemental error that the military
judge erred in the findings instructions provided to the court-martial
members.4




   1 I. WHETHER THE MILITARY JUDGE ERRED IN LIMITING [THE
APPELLANT’S] CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY
DENYING A REQUEST FOUR DAYS BEFORE TRIAL FOR A CONTINUANCE TO
INVESTIGATE NEWLY DISCOVERED INFORMATION          WHEN SUCH
INFORMATION WAS RECEIVED LATE DUE TO GOVERNMENT’S FAILURE TO
TIMELY COMPLY WITH THE RULES OF DISCOVERY AND THE DEFENSE WAS
OTHERWISE INCAPABLE OF DISCOVERING THIS INFORMATION BECAUSE
THEY WERE PROHIBITED FROM QUESTIONING THE ALLEGED VICTIM.
   2II. WHETHER [THE APPELLANT] WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL
PHASE OF HIS COURT-MARTIAL WHEN DEFENSE COUNSEL FAILED TO
REQUEST DEFERMENT OF CONFINEMENT AND DEFERMENT IN
REDUCTION OF RANK DESPITE THE FACT THAT [THE APPELLANT]
SPECIFICALLY REQUESTED THAT THEY DO SO.
   3United States v. Montalvo, No. 201400241, 2015 CCA LEXIS 218 (N-M. Ct.
Crim. App. 27 May 2015).
   4  III. THE MILITARY JUDGE IS REQUIRED TO ACCURATELY INSTRUCT
THE MEMBERS ON THE LAW. HERE, THE MILITARY JUDGE INSTRUCTED
THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE,
YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE
CRIME CHARGED, YOU MUST FIND HIM GUILTY.” WAS THIS PLAIN ERROR?
This supplemental AOE was inadvertently styled as AOE (4) instead of AOE (3).
Regardless, in accordance with our holding in United States v. Rendon, __M.J. __,
2016 CCA LEXIS 643, at *26 (N-M. Ct. Crim. App. 1 Nov 2016), we summarily reject
the supplemental AOE. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).



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                    United States v. Montalvo, No. 201400241


   Having carefully considered the record of trial, oral argument, and
the pleadings, we find no error materially prejudicial to the appellant
and affirm the findings and sentence below.
                               I. BACKGROUND
    At around 2200 on 4 October 2012, Ms. VAM and her coworker
visited the barracks located on board Camp Pendleton, California, to
meet up with her coworker’s boyfriend, a Marine. VAM was introduced
to the appellant, and the four of them—VAM, her coworker, her
coworker’s boyfriend, and the appellant—socialized in the appellant’s
room for several hours. VAM and her coworker then made their “good
byes” and returned to the coworker’s home.
   At around 0300, VAM’s coworker received a text message from her
boyfriend asking her to come back to the barracks for the night. VAM
accompanied her, uncomfortable with her friend driving back to the
base alone so late at night. They again met up in the appellant’s room,
finding the appellant extremely intoxicated. Shortly thereafter, VAM
and the appellant were left alone in the room when her coworker and
her coworker’s boyfriend left.
   At around 0330 the appellant asked for VAM’s help to find his
phone. She complied, calling him from her phone to hear it ring.
Immediately after this, the appellant moved behind her and began
removing her clothing. Ignoring her pleas to stop, the appellant pushed
VAM onto his bed and forced her to engage in vaginal and anal
intercourse. Afterwards, VAM dressed and lay awake in the room’s
other bed until around 0630 when the appellant departed for morning
muster.
   VAM reported the assault that evening. A subsequent medical
exam revealed injuries to VAM’s vagina and rectum. She had large
bruises on her breast and arm. The appellant’s DNA was discovered on
VAM’s body and in the crotch of her underwear, and VAM’s DNA was
discovered in the crotch of the appellant’s underwear.
                               II. DISCUSSION
A. Denial of the defense’s request for continuance5
   The case was referred to a general court-martial on 26 June 2013,
and trial was set for 21 October 2013. However, on 8 October 2013 the
military judge granted a continuance until 27 January 2014 due to the

   5   Raised as AOE (1).



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                        United States v. Montalvo, No. 201400241


unavailability of VAM’s coworker, who was a potential defense
witness.
   In mid-December 2013, the defense requested the government
subpoena VAM’s phone and text message records based on apparent
discrepancies between VAM’s previous statements and the forensic
evaluation of her cell phone. The government agreed and subpoenaed
the records from VAM’s service provider, AT&T, the day after the
defense request.
   When, by 22 January 2014, the records still were not available, the
defense requested an open continuance until the records could be
produced. As a substitute for the AT&T records, VAM voluntarily
provided a copy of her phone bill for the relevant time period. The bill
showed 86 text messages between VAM and an unknown individual
beginning on the evening of 4 October 2012 and ending at 0252 on 5
October 2012, about 30 minutes before the assault.
   Applying United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), the
military judge denied the appellant’s continuance request, crediting in
part his belief that, “there’s already sufficient basis in the record for
many levels of impeachment of the victim.”6
   By trial, the defense had identified the unknown text messenger as
Mr. DMN. While defense counsel was unable to communicate with
DMN before trial, he did cross-examine VAM on her interactions with
him:
            Q. [civilian defense counsel]. Around 10:00 p.m. [on 4
         October 2012]. Had you made any plans to see anyone
         else that evening?
            A. [VAM]. No.

             Q. Okay. Were you texting with anybody that evening?
             A. Probably.


           Q. If you were texting with somebody that evening,
         who do you think that was?
           A. It could have been quite a few people.


            Q. Okay. Is it possible that you were texting with only
         one person that evening?


   6   Record at 235.

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                     United States v. Montalvo, No. 201400241


            A. I believe I was texting a few more than one person
         that evening.


            Q. Okay. If I tell you a phone number, I just want to
         see if you recognize a particular number . . .
            A. I’m sure that I know the number, but I don’t know
         who it belongs to.


            Q. Okay. Just as you are sitting here, you don’t
         recognize that number?
            A. Right.7

             Later, counsel returned to this line of attack:
            Q. Do you recall whether or not you were texting
         repeatedly one person throughout that evening?
            A. I’m sure that I was, but I don’t remember
         specifically who it was.


             Q. Okay. Does the name [DMN] ring a bell?
             A. No.


            Q. You are not reminded --
            A. I know a few people [with that first name]. I’m not
         sure of last names.


            Q. Okay. The name . . . would have a really kind of
         unusual spelling? . . . Is that --
            A. I don’t know how to spell -- I don’t pay attention to
         the spelling of my friends’ names.8


   The defense counsel also cross-examined the Naval Criminal
Investigative Service (NCIS) special agent, who originally questioned
both VAM and her coworker, regarding their interactions with DMN:
            Q [civilian defense counsel]. Did you -- did any part of
         the investigation deal with an issue of whether or not
         between the time that [VAM] alleges that she was at

   7   Id. at 682.
   8   Id. at 690.

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                     United States v. Montalvo, No. 201400241


      Camp Pendleton the first time when she leaves with [her
      coworker] and then comes back the second time where the
      alleged assault takes place[?] Did you take any
      investigations regarding that period of time?
          A [NCIS special agent]. Other than interviewing her
      friend that was with her, no.

          ....
         Q. . . . You had a disconnect in the statement of one
      witness and another witness as to the issue of whether or
      there [sic] was a third party that they met with between
      the visits to Camp Pendleton.
         A. Correct.

          Q. Right?
          A. Correct.


         Q. One witness is saying, yes, we did. We hung out
      with him for a while, and one is saying, that [n]ever
      happened at all.
         A. Correct.


          ....
         A. [The coworker] says that there was – I mean, our –
      [VAM] says that she never met anybody at her house on
      that date.


          Q. She says they didn’t – she says that they did not –
          A. Correct.


          Q. But [the coworker] said that they did, didn’t she?
          A. Correct.9


          ....



9   Id. at 582-84.



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                      United States v. Montalvo, No. 201400241


            Q. Through midnight all the [sic] up to 2:52 a.m. that
         [VAM] was texting and exchanged 86 texts sent and
         received with this person. Would that surprise you to
         know that?
            A. Yes.10

       This point was reiterated by the defense counsel during
closing argument:
            What about the differing accounts between [the
         coworker] and [VAM]? Remember, they were having a –
         there was a disconnect in NCIS’s mind whether or not
         between the two trips to Pendleton they might have met
         another man. Okay, significant, insignificant, don’t know,
         but it was a story in which [VAM] is saying one thing and
         another witness is saying another.11
    Neither VAM’s coworker nor the coworker’s boyfriend testified at
trial, and the question of the third man was not raised other than as a
point of inconsistency in VAM’s testimony.
   On 10 July 2015 the record was returned for a DuBay hearing to
explore the content and availability of evidence about the 86 text
messages exchanged between DMN and VAM. On 3 February 2016 the
record was returned for an additional DuBay hearing to explain the
content of VAM’s phone record produced by AT&T at the first DuBay
hearing.
   During those hearings, the DuBay judge determined that DMN and
VAM exchanged texts on 4 and 5 October 2012 after meeting through
an online dating service.12 DMN was active in online dating and
regularly communicated with and dated the women he met online.
DMN typically engaged the women he met in a series of “20
Questions,” texting questions ranging from innocuous to provocative in
order to gage whether there was mutual interest.13
    DMN and VAM began messaging each other on 4 October 2012 at
1913 and exchanged text messages with regularity (some 80 messages
back and forth) until 5 October 2012 at 0252. DMN then texted VAM

   10   Id. at 622.
   11   Id. at 910.
   12 We will accept the factual findings of a DuBay military judge unless they are
clearly erroneous. United States v. Brownfield, 52 M.J. 40, 44 (C.A.A.F. 1999).
   13   Appellate Exhibit (AE) LXXIII at 2.

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                     United States v. Montalvo, No. 201400241


later that evening at 2123 and again a day later at 1345.14 He received
no response to either message.
   DMN did not recall that any of their messages discussed the
appellant or related to anything of a sexual nature.
   DMN regularly deleted his text messages within a few weeks of the
other person appearing to lose interest. When asked about the chances
that he would still have copies of the text messages between him and
VAM by the time of the appellant’s court-martial, he responded, “slim
to none” and “almost impossible.”15 Likewise, Verizon—DMN’s service
provider—maintained text message content for only three to five days,
and AT&T didn’t maintain text message content at all.
    A review of the records of activity for VAM’s phone showed an
exchange of messages with DMN on 5 October 2012 ending at 0252.
There were no additional text messages until her phone received an
incoming message at 0912 later that morning. VAM’s phone placed one
call to the appellant’s phone on 5 October 2012 at 0332 that lasted for
17 seconds but was not answered. Her phone did not send or receive
another call until an incoming call was placed at 0709 later that
morning. VAM’s phone electronically transferred data on 5 October
2012 at 0249 for around 30 minutes. No other data transfer occurred
until after 1130 later that morning. According to the records, VAM’s
phone wasn’t used between 0332 and 0730 on 5 October 2012.16
   Regardless, the appellant still maintains that the military judge
abused his discretion in denying the defense’s second continuance
request and that this denial prejudiced the appellant’s ability to
confront VAM about contradictions between her testimony, her phone
records, and DMN’s statement.
    At trial, the appellant shoulders the burden by a preponderance of
the evidence to show “reasonable cause” for the continuance request,
United States v. Allen, 31 M.J. 572, 620, 623 (N.M.C.M.R. 1990), aff'd,
33 M.J. 209 (C.M.A. 1991), and we will reverse a military judge’s
decision on a continuance request only for an abuse of discretion.
United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997). However, we
need not decide whether the military judge abused his discretion if we
first resolve that the appellant was not prejudiced by the denial of a

   14   See AE LXIX at 4.
   15   First DuBay Record at 44.
   16   See AE LXXXIV.



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                    United States v. Montalvo, No. 201400241


continuance. United States v. Wellington, 58 M.J. 420, 425 (C.A.A.F.
2003). For non-constitutional error,17 the appellant is warranted relief
only when he demonstrates that the error materially prejudiced a
substantial right. Art. 59(a), UCMJ, 10 U.S.C. § 859 (2012).
    Here the appellant was not materially prejudiced by the denial of
the continuance as the matters that might have been discovered with
the addition of time would have been cumulative and of no more use
than what was already available to them at trial.
    The phone records and explanative testimony provided at the
DuBay hearings closely corroborated VAM’s testimony at trial. From
before 0300 to after 0730 on 5 October 2012, VAM made use of her
phone only once—the call she made to the appellant’s phone at 0330,
moments before the assault occurred. Otherwise, she made no other
calls, exchanged no text messages, and received no data indicative of
other smart phone usage. This is wholly consistent with her
description of the attack.
   Similarly, DMN’s testimony at the DuBay hearing was largely
consistent with VAM’s trial testimony. Neither DMN nor VAM
appeared to remember the other with any great specificity,
corroborative of a short-term, online encounter that failed to develop
much further. At the DuBay hearing, DMN vaguely recognized
pictures of VAM and her coworker as the same two women he visited


   17  We recognize that, in some cases, the denial of a continuance may impact an
appellant’s meaningful opportunity to present a complete defense. Under such
circumstances where the appellant’s Sixth Amendment guarantee to the effective
assistance of counsel is infringed, we test for harmlessness beyond reasonable doubt.
See Kansas v. Ventris, 556 U.S. 586, 590 (2009) (holding that the Sixth Amendment
right to counsel includes “the opportunity for a defendant to consult with an attorney
and to have him investigate the case and prepare a defense for trial”) (citation and
internal quotation marks omitted); United States v. Gaddis, 70 M.J. 248, 252
(C.A.A.F. 2011) (holding that the right to counsel extends to the ‘“meaningful
opportunity to present a complete defense”’) (quoting Holmes v. South Carolina, 547
U.S. 319, 324 (2006)); Chapman v. California, 386 U.S. 18, 24 (1967) (“[B]efore a
federal constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.”). But see United States v.
Bartlett, 66 M.J. 426, 430 (C.A.A.F. 2008) (“There is a strong presumption that an
error is not structural,” meaning that most are not significant enough to entirely
“obviat [e] the need to show prejudice” at all) (citing Rose v. Clark, 478 U.S. 570, 579
(1986)).
    Under the circumstances of this case, we find the right to the effective assistance
of counsel was not implicated by the military judge’s ruling, and we apply the
prejudice standard applicable to non-constitutional error.

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                     United States v. Montalvo, No. 201400241


one night in the fall of 2012 when the three socialized at a house,
briefly went shopping, and made food back at the house before he was
ushered out unceremoniously. However, DMN’s memory and
description of that meeting did not correlate with the frequency of his
text messages with VAM as reflected in the AT&T records for 4 and 5
October 2012, making it very unlikely that this meeting occurred on
the night of 4 October 2012. Regardless, he never saw either woman
again after that meeting. Likewise, VAM denied making plans to meet
with DMN—or anyone else—in between visits to Camp Pendleton on 4
October 2012.
    DMN’s vague memory of meeting VAM and VAM’s denial of
meeting anyone the night of 4 October 2012 were arguably
contradictory. And the defense made much out of this proposed
contradiction; challenging the victim twice on the matter, examining
the NCIS special agent at length about it, and raising it again during
closing argument. However, despite previously characterizing the
defense’s cross-examination on this matter as “devoid of impeachment
value,”18 it now appears that all possible value was extracted from the
possible contradiction, and further investigation has yielded nothing
else of relevance. Sometimes when life gives you lemons, you can only
make lemon juice.

B. Post-trial ineffective assistance of counsel19
   In an unsworn declaration submitted to the court on 30 October
2014, the appellant alleged that, while meeting with his trial defense
counsel for the purpose of preparing an appellate rights statement
prior to the announcement of sentence, he instructed counsel to
request deferment of any sentence to confinement and reduction in pay
grade. This desire was reflected in a statement dated 30 January 2014
and signed by the appellant and his three trial defense counsel.20
   On 11 June 2014, the trial defense counsel submitted a robust
request for clemency which included thirty enclosures and requested
the CA set aside the findings or, in the alternative, reduce the term of
confinement or the dishonorable discharge. However, neither the
defense’s clemency request, nor the accompanying letter from the
appellant, requested deferment of confinement or reduction in grade.
On 19 May 2014, prior to submission of defense’s clemency request, the

   18   Montalvo, 2015 CCA LEXIS 218, at *16.
   19   Raised as AOE (2).
   20   Motion to Attach Affidavit of the Appellant of 30 Oct 2014, Appendix 2.

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                    United States v. Montalvo, No. 201400241


staff judge advocate (SJA) provided his recommendation to the CA, but
noted that, “[t]here have been no requests to defer any part of the
sentence . . . .”21 The 16 June 2014 addendum to the SJA’s
recommendation was silent on any deferment requests. On 18 June
2014, the CA approved the sentence as adjudged noting that he had
received no requests to defer any part of the sentence.
   The Sixth Amendment right to effective assistance of counsel at
courts-martial is a fundamental right of service members. United
States v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000) (citing United States
v. Palenius, 2 M.J. 86 (C.M.A. 1977)). That right extends to post-trial
proceedings. United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997).
Ineffective assistance of counsel involves a mixed question of law and
fact, but whether counsel was deficient and whether the deficiency was
prejudicial are reviewed de novo. United States v. Anderson, 55 M.J.
198, 201 (C.A.A.F. 2001); see also United States v. McClain, 50 M.J.
483, 487 (C.A.A.F. 1999).
   We apply the two-prong test set forth by the Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687 (1984) to determine
whether counsel rendered ineffective representation. “The burden on
each prong rests with the appellant challenging his counsel’s
performance.” United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005).
The first prong requires the appellant to show that counsel’s
performance fell below an objective standard of reasonableness,
indicating that counsel was not functioning as counsel within the
meaning of the Sixth Amendment. United States v. Terlep, 57 M.J. 344,
349 (C.A.A.F. 2002). Our review of counsel’s performance is highly
deferential and is buttressed by a strong presumption that counsel
provided adequate representation. United States v. Garcia, 59 M.J.
447, 450 (C.A.A.F. 2004).
   The second prong requires a showing of prejudice resulting from
counsel’s deficient performance. Strickland, 466 U.S. at 687. With
regards to post-trial claims of ineffective assistance of counsel, courts
must give an appellant the benefit of the doubt and find that “there is
material prejudice to the substantial rights of an appellant if there is
an error and the appellant ‘makes some colorable showing of possible
prejudice.’” United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)
(quoting United States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F.
1997)). If the appellant fails to make a “colorable showing of possible



   21   SJA Recommendation at 2.

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                      United States v. Montalvo, No. 201400241


prejudice,” we need not determine whether trial defense counsel’s
performance was so deficient as to render him ineffective.22
   In general, deferment of a sentence to confinement or reduction in
grade “is a postponement of the running of the sentence.” RULE FOR
COURTS-MARTIAL (R.C.M.) 1101(c)(1), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.) Deferment is not a form of clemency.23 The
appellant has the burden of demonstrating that his interest and the
interest of the community in deferral outweigh the community’s
interest in imposition of the punishment on its effective date. R.C.M.
1101(c)(3). Factors to consider in determining whether to defer a
sentence to confinement or reduction in grade include: the probability
of flight; the probability of the commission of other offenses,
intimidation of witnesses, or interference with the administration of
justice; the nature of the offenses including the effect on the victim; the
sentence adjudged; the command’s immediate need for the accused; the
effect of deferment on good order and discipline; and the accused’s
character, mental condition, family situation, and service record. Id.
    Here, the appellant has provided little upon which a decision to
defer his sentence to confinement or reduction in grade might have
been based.24 Absent such evidence, and given the nature of the
offenses of which the appellant was convicted and his sentence to nine
years’ confinement, we conclude that there has not been a colorable
showing of possible prejudice.25




    22See United States v. Datavs, 71 M.J. 420, 424-25 (C.A.A.F. 2012) (noting that
courts are not required to determine whether counsel’s performance was deficient
before first examining whether the appellant suffered any prejudice).
    23   R.C.M. 1101(c)(1), Discussion.
    24 See Unites States v. Nicks, No. 20110658, 2013 CCA LEXIS 789, *5-9,
unpublished op. (A. Ct. Crim. App. 30 Sep. 2013) (providing a helpful discussion of
the R.C.M. 1101 factors as they relate to requests for deferment and waiver of
forfeitures). Moreover, simply indicating clemency desires on an appellate rights
form does “not set forth a prima facie case of ineffective assistance of counsel.” United
States v. Axtell, 72 M.J. 662, 664-65 (A. Ct. Crim. App. 2013) (en banc).
    25Nicks, 2013 CCA LEXIS 789, at *8-9 (holding that the “[a]ppellant’s silence on
appeal regarding the R.C.M. 1101(c)(3) burden and the factors articulated therein
leads to but one conclusion: [the] appellant has failed to make a colorable showing of
possible prejudice”).

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             United States v. Montalvo, No. 201400241


                        III. CONCLUSION
The findings and the sentence, as approved by the CA, are affirmed.

                                 For the Court



                                 R.H. TROIDL
                                 Clerk of Court




                               13
