                            ****CORRECTED COPY – DESTROY ALL OTHERS****



           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                               Senior Airman ROBERT A. BONDO
                                      United States Air Force

                                               ACM 38438

                                             18 March 2015

          Sentence adjudged 31 May 2013 by GCM convened at Luke Air Force
          Base, Arizona. Military Judge: William C. Muldoon (sitting alone).

          Approved Sentence: Dishonorable discharge, confinement for 6 years, and
          reduction to E-1.

          Appellate Counsel for the Appellant: Major Christopher D. James.

          Appellate Counsel for the United States: Captain Richard J. Schrider and
          Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



MITCHELL, Senior Judge:

       A general court-martial composed of a military judge convicted the appellant,
contrary to his pleas, of one specification of attempted failure to obey a lawful order,
three specifications of indecent acts, two specifications of indecent liberties with a child,
one specification of rape by using restraint, three specifications of abusive sexual contact
of a child, two specifications of sexual abuse of a child, and two specifications of
indecent language, in violation of Articles 80, 120, 120b, and 134, UCMJ, 10 U.S.C.
§§ 880, 920, 920b, 934.1 The court sentenced him to a dishonorable discharge,
confinement for 6 years, forfeiture of all pay and allowances, and reduction to E-1. The
convening authority approved the sentence except for the adjudged forfeitures and
waived the mandatory forfeitures for the benefit of the appellant’s wife and child.

       The appellant assigns as error: (1) the evidence is legally and factually
insufficient as to multiple specifications; (2) the military judge erred when he admitted
the appellant’s statement of his cell phone’s password to law enforcement agents after the
appellant invoked his right to remain silent and requested counsel and the derivative
evidence; and (3) the specifications and charge under Article 120b, UCMJ, failed to state
an offense because the President has not yet prescribed rules to include the elements of
the offense. Additionally, the appellant requested appellate discovery of the mental
health records of victims who submitted statements for the convening authority to
consider during clemency.

       We conclude the military judge abused his discretion in admitting the statement
made by the appellant to law enforcement investigators after he requested counsel and the
derivative evidence. We therefore set aside the Second Additional Charge II and its
Specification. We disagree with the appellant on the remaining issues. Accordingly, we
affirm the remaining findings and reassess the sentence.

                                       Legal and Factual Sufficiency

       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).
“The test for legal sufficiency of the evidence is ‘whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.’” United States v. Humpherys, 57 M.J. 83,
94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). “[I]n
resolving questions of legal sufficiency, we are bound to draw every reasonable inference
from the evidence of record in favor of the prosecution.” United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001). 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 accused’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In
conducting this unique appellate role, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to “make [our]
own independent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” Washington, 57 M.J. at 399. Our

1
 Due to the timing of the appellant’s misconduct, the specifications alleged violations of the Code in effect in 2010,
see Manual for Courts-Martial, United States (MCM), Appendix 28-1 (2012 ed.), as well as the Code currently in
effect.


                                                          2                                       ACM 38438
assessment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

        The appellant challenges some of the specifications and charges as not legally and
factually sufficient. We disagree. The evidence is both legally and factually sufficient
for all of the affirmed charges and specifications.2 We provide further analysis for some
of the charges and specifications below. We have considered the remaining assignments
of error of legal and factual sufficiency to the other charges and specifications and find
them to be without merit. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).

        a. Indecent Act with Miss KT (Specification 1 of Charge I)

        In her freshman year of high school, Miss KT began to text with a man she knew
as “Ace,” who was a friend of a friend. The texts began shortly before her 16th birthday,
and the sexually suggestive texts occurred afterwards. Ace revealed that he was married
and asked Miss KT not to tell her friend that he was texting her. He sent about
15 pictures to Miss KT to include photos of his penis and him wearing tight spandex, no
shirt and a cowboy hat. In the photos, she saw that he had a tattoo of “Ace” on his chest.
The appellant has the same tattoo on his chest. Another witness identified that “Ace” was
the appellant’s Facebook nom-de-plume. After sending Miss KT sexually explicit
photos, he requested naked photos from her. She declined to send him any naked photos.

       The appellant was convicted of an offense under Article 120(k), UCMJ, for
indecent acts. Manual for Courts-Martial, United States (MCM), Appendix 28-2 (2012
ed.). The elements of indecent acts are: (1) the accused engaged in certain conduct; and
(2) the conduct was indecent conduct. Id. The term “indecent conduct” is defined in
Article 120(t)(12), in part, as follows: “[T]hat form of immorality relating to sexual
impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to
excite sexual desire or deprave morals with respect to sexual relations.”

       Our superior court “has held that ‘language’ can be, or be part of, ‘conduct’ in a
particular case.” United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012). Here the
appellant was a married 23-year-old who repeatedly provided unsolicited photos of his
penis to a high school freshman. He also requested that she send him sexy, naked photos
of herself. We find the evidence legally and factually sufficient to sustain this conviction.

        b. Indecent Liberties with Miss SR (Specification 2 of Charge I)

      The appellant was convicted of taking indecent liberties on divers occasions with
Miss SR, a child under 16 years of age, by manipulating her clothes to expose her breasts.

2
  Because we set aside the Second Additional Charge II and its Specification on other grounds, we do not examine
the legal and factually sufficiency of the evidence as to this offense.


                                                       3                                     ACM 38438
Miss SR is the younger sister of the appellant’s wife. On six to ten occasions, the
appellant pulled down her shirt. The appellant argues this fails to meet the following
definition of indecent liberty under Article 120(t), UCMJ:

        The term “indecent liberty” means indecent conduct, but physical contact is
        not required. It includes one who with the requisite intent exposes one’s
        genitalia, anus, buttocks, or female areola or nipple to a child. An indecent
        liberty may consist of communication of indecent language as long as the
        communication is made in the physical presence of the child. If words
        designed to excite sexual desire are spoken to a child, or a child is exposed
        to or involved in sexual conduct, it is an indecent liberty; the child’s
        consent is not relevant.

MCM, A28-3.

        The appellant argues that because there was no evidence that Miss SR’s areola
was exposed, the evidence is legally and factually insufficient to sustain the conviction.
We agree that the evidence is factually insufficient to establish that in the charged time
frame between 1 February 2012 and 27 June 2012 the appellant exposed Miss SR’s
breasts. Miss SR testified the appellant would grab her shirt and pull on it. However,
there is no evidence that her breasts were exposed during any of these occasions between
1 February 2012 and 27 June 2012. We are not convinced beyond a reasonable doubt
that her breasts were exposed. We have no evidence as to how far he pulled her shirt.
We also have evidence that she was wearing a bra on at least one occasion. Miss SR also
clearly stated that it was on a separate occasion outside the charged timeframe when her
breasts were exposed by the appellant.3 We therefore except out the language “to expose
her breasts.”

        However, we find the remainder of the specification legally and factually
sufficient and affirm that the appellant took indecent liberties with his underage sister-in-
law when he manipulated her clothes with the intent to gratify his sexual desires. Along
with pulling down her top, the appellant would grab her buttocks. Miss SR explained
that this was “weird” because although it was typical for family members to smack each
other’s buttocks in a football player type fashion, the appellant instead would squeeze her
buttocks. The appellant later told his 15-year-old sister-in-law that she was his “sexy
secret.” He also later showed her images of pornography and told her she would “look
good” in similar poses.4 The cumulative evidence proves that the appellant manipulated
Miss SR’s clothes with a sexual intent. The appellant engaged in sexual conduct with
this child. He did not engage in innocent horseplay with her on these occasions.

3
  The appellant was charged with touching Miss SR’s breasts on this occasion and on other times after July 2012.
He was acquitted of this offense, Specification 1 of Charge II.
4
  The appellant was convicted of sexual abuse of a child for these actions in violation of Article 120b(c), UCMJ,
10 U.S.C. § 920b(c).


                                                       4                                      ACM 38438
Regardless of whether her breasts were exposed, we find the evidence legally and
factually sufficient that the appellant involved this child in sexual conduct when he
manipulated her clothes with the intent to gratify his sexual desires. We therefore affirm
the finding as to the specification while excepting the language “to expose her breasts.”
See United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011) (“Article 79, UCMJ,
provides the statutory authority . . . for an appellate court to affirm[] a[] [lesser included
offense].”)

           c. Abusive Sexual Contact with Miss EM (Specification 6, 7, & 8 of Charge I)

        Miss EM was the 15-year-old cousin of the appellant’s wife. She testified that the
appellant sexually abused her in a hotel while they were attending a wedding with other
family members in May 2012. She explained that prior to the wedding she had seen the
appellant many times and she thought “he was pretty cool,” in part because he would go
to a trampoline park with her. The appellant claims that because Miss EM earlier
testified that she met him for the first time in July 2012 that her testimony establishes that
the May incident was impossible. We agree with the appellant that this inconsistency
may be considered in determining Miss EM’s credibility. However, we disagree with the
weight he provides it. We find Miss EM’s testimony believable and credible and note the
reference to July 2012 was an innocent mistake. We determine that the evidence is
legally and factually sufficient.

           d. Indecent Language with Ms. AR (Charge III and its Specification)

        Ms. AR is the sister of the appellant’s wife.5 In April 2012, she was staying with
her sister and the appellant for a two-week visit. One evening, as they were getting ready
for a barbeque, the appellant told Ms. AR that she had “DSL,” she looked well dressed,
he wished his wife would dress like she was and maybe he had chosen the wrong sister.
Ms. AR testified that she knew from hearing the phrase in high school that DSL was an
acronym for “Dick Sucking Lips.” Ms. AR agreed that the appellant never defined the
term for her because she “didn’t need him to tell me what DSL was.”

       At the time of the incident, the elements of indecent language under Article 134,
UCMJ, were: (1) the accused orally or in writing communicated to another person
certain language; (2) such language was indecent; and (3) under the circumstances, the
conduct of the accused was to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit upon the armed forces. MCM, Part IV, ¶ 89.b.
We examine the entire record of trial to determine the surrounding circumstances in
which the language was uttered to determine if it was indecent. See United States v.
Green, 68 M.J. 266, 270 (C.A.A.F. 2010). It is not necessary that DSL appear as a word,
phrase, or cyber-acronym in any standard dictionary. The evidence at trial was sufficient

5
    Ms. AR was 23 years old at the time she testified.


                                                         5                    ACM 38438
to establish its definition as a vulgar phrase. “‘[I]indecent language’ has two alternative
definitions, either of which may be relied upon under the offense: (1) grossly offensive
to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy,
or disgusting nature; or (2) grossly offensive because of its tendency to incite lustful
thought.” Id. at 269. The appellant’s language, in telling his sister-in-law that she has
DSL while commenting on her appearance and saying he married the wrong sister, meets
both of these statutory definitions. Having evaluated the evidence, we find it to be both
legally and factually sufficient.

       e. Attempted Failure to Obey a Lawful Order (Additional Charge II)

        The appellant was given an order by his first sergeant not to have any contact with
anyone under 18 years of age for 24 hours. Miss TA was a 17-year-old friend of the
appellant and showed her phone to Technical Sergeant (TSgt) TE, a paralegal in the staff
judge advocate’s office. The paralegal saw a photo of Miss TA and the appellant on the
phone. She also saw a record of three phone calls from the appellant’s cell phone number
to Miss TA’s phone of 5, 10 and 13 minutes in length and one phone call to his number
that lasted 5 minutes. The phone records indicate the calls occurred during the 24-hour
no-contact order. Although Miss TA did not testify at trial, the military judge found the
appellant guilty of the lesser included offense of attempting to disobey a lawful order.
The appellant argues that because Miss TA did not testify the evidence is not sufficient.
We disagree. Miss TA’s sister testified and identified the photographs on her younger
sister’s phone. Furthermore, TSgt TE received the phone from Miss TA and took
photographs that displayed the information about phone calls between the appellant’s
phone number and Miss TA’s phone. We determine the evidence is both legally and
factually sufficient.

        Law Enforcement Agents Request for Password after Request for Counsel

        On 15 August 2012, the appellant was interviewed by special agents with the
Air Force Office of Special Investigations (AFOSI). The next day, a military magistrate
authorized the seizure of the appellant’s cell phone. Later that day, AFOSI agents
interviewed the appellant again. He invoked his right to counsel, and the agents left the
room. They had previously seized his cell phone pursuant to military magistrate
authorization but found it password protected. The agents returned to the room and told
the appellant they had a search warrant for the phone. They then asked him for the
password; the appellant complied and provided the two passwords needed to unlock the
phone. The phone was unlocked and not password protected when it was later sent to the
Defense Computer Forensic Laboratory (DCFL). DCFL technicians analyzed the phone,
extracted its contents, and produced a report.

      At trial, the appellant moved to suppress his statement of his passwords and the
evidence obtained from his cell phone by DCFL. The Government sought to admit two


                                             6                               ACM 38438
exhibits6 from the appellant’s cell phone, a print-out of text messages sent by the
appellant to SB and photographs of the appellant in various states of undress. The
photographs were not on the password protected phone but instead were contained on an
unsecured SD card (memory card) that was easily removed from the phone. The military
judge denied the motion.

        “A military judge’s denial of a motion to suppress a confession is reviewed for an
abuse of discretion.” United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F. 2009)
(citation omitted). Under this standard, the military judge’s findings of fact are upheld
unless they are clearly erroneous or unsupported by the record; however, we review
de novo any conclusions of law supporting the denial of a motion to suppress a
confession. Id.; United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000). “A military
judge abuses his discretion when: (1) the findings of fact upon which he predicates his
ruling are not supported by the evidence of record; (2) if incorrect legal principles were
used; or (3) if his application of the correct legal principles to the facts is clearly
unreasonable.” United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing
United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)). “Further, the abuse of
discretion standard of review recognizes that a judge has a range of choices and will not
be reversed so long as the decision remains within that range.” United States v. Gore,
60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214, 1217
n.3, (D.C. Cir. 1992)).

        First, we briefly address the photographs of the appellant obtained from the SD
card. The SD card was not password protected and was easily removed from the cell
phone. “[C]ell phones may not be searched without probable cause and a warrant unless
the search and seizure falls within one of the recognized exceptions to the warrant
requirement.”      United States v. Wicks, 73 M.J. 93 at 99 (C.A.A.F. 2014)
(citations omitted). The evidence on the SD card is separate from the password protected
contents of the cell phone and within the type of evidence appropriately obtained by the
search authorization. The military judge did not abuse his discretion in admitting the
photographic evidence from the non-password protected SD card.

       The military judge analyzed the motion under Article 31, UCMJ, 10 U.S.C. § 831,
through a Fifth Amendment7 analysis. However, a month after the appellant’s
court-martial, our superior court examined a similar issue and determined that when
agents initiate questioning after an appellant invokes his right to counsel, it should be
examined to determine if a Fifth Amendment violation occurred:

                 The Government argues that this case is governed by the
                 holding in United States v. Frazier, 34 M.J. 135, 137
6
  A third exhibit, Prosecution Exhibit 4, was offered but not admitted as the military judge sustained a defense
objection on Mil. R. Evid. 403.
7
  U.S. CONST. Amend. V.


                                                       7                                     ACM 38438
             (C.M.A. 1992), that “[a] request for consent to search does
             not infringe upon Article 31 or Fifth Amendment safeguards
             against self-incrimination because such requests are not
             interrogations and the consent given is ordinarily not a
             statement.” We do not take issue with that basic principle
             and agree that the NCIS request to search Hutchins’s personal
             belongings on May 18 was not an interrogation. The
             principle set forth in Frazier, however, does not end our
             inquiry.     Once Hutchins requested an attorney, under
             Edwards he could not be further interrogated unless:
             (1) counsel had been made available; or, (2) Hutchins
             reinitiated further     “communication,      exchanges,    or
             conversations.” Edwards, 451 U.S. at 484-85. As no
             attorney was made available to Hutchins, the Edwards inquiry
             in this case centers on whether, under the circumstances of
             this case, it was the Government or Hutchins that reinitiated
             further communication under Edwards and Bradshaw.

United States v. Hutchins, 72 M.J. 294, 297, (C.A.A.F. 2013) (citing Frazier, 34 M.J. at
137; Edwards v. Arizona, 451 U.S. 477, 484–85 (1981); Or v. Bradshaw, 462 U.S. 1039,
1045 (1983)).

       In this case, the appellant was not provided with an attorney before the AFOSI
agents reinitiated questioning. The appellant did not reinitiate discussion; rather, it was
the AFOSI agents who reentered the room and questioned the appellant. Our superior
court provided further guidance as to which law enforcement-initiated inquiries are
permitted:

             Not all communications initiated by an accused or law
             enforcement will trigger the protections under Edwards. The
             Court in Bradshaw went on to distinguish between inquiries
             or statements by either a police officer or a defendant that
             represented a desire to open a more “generalized discussion
             relating directly or indirectly to the investigation” and those
             “inquiries or statements, by either an accused or a police
             officer, relating to routine incidents of the custodial
             relationship.” [Bradshaw, 462 U.S.] at 1045. The former
             circumstance constitutes a reinitiation of communication
             while the latter circumstance does not. The Edwards rule
             does not merely prohibit further interrogation without the
             benefit of counsel, it prohibits further “communication,
             exchanges, or conversations” that may (and in this case, did)
             lead to further interrogation. [Edwards,] 451 U.S. at 485.


                                             8                              ACM 38438
                 Under Bradshaw, the issue before this court is whether the
                 NCIS agent opened a more “generalized discussion relating
                 directly or indirectly to the investigation” or whether his
                 inquiry related to “routine incidents of the custodial
                 relationship.” [Bradshaw,] 462 U.S. at 1045.

Hutchins, 72 M.J. at 298 (quoting Edwards, 451 U.S. at 485; Bradshaw, 462 U.S. at
1045).

        In Hutchins, 72 M.J. at 299, our superior court held that where that appellant
invoked his right to counsel and investigators later asked to search his belongings, this
action violated that appellant’s Fifth Amendment rights because the investigator initiated
contact to further the investigation. The court held that this action involved a
“reinitiation of communication” in violation of that appellant’s expressed invocation of
his right to counsel. Id. Similarly, we hold that law enforcement investigators who ask a
suspect for a password to a cell phone that they believe contains evidence of an offense is
more than a routine incident of the custodial relationship. Routine incidents of the
custodial relationship are akin to asking for a drink of water or to use the telephone.
Bradshaw, 462 U.S. at 1045. The scenario here is far removed from those routine
incident scenarios.

       The Government alternatively argues that the law enforcement agents were acting
within the scope of the valid warrant when they required the appellant to produce his
password. We leave as unresolved whether a properly issued warrant may compel a
suspect to produce a password.8 The warrant in this case simply authorized “the seizure
of the following specified property: Samsung T-Mobile cell phone owned by
[the appellant].” Even if a warrant could compel a suspect to produce a password for law
enforcement access to incriminating evidence, this one did not.

        When there is an error in admitting evidence obtained in violation of the Edwards
rule, we test to see if the error was harmless beyond a reasonable doubt. See Hutchins
72 M.J. at 299 (testing error for harmless beyond a reasonable doubt). Prosecution
Exhibit 3 was the printout of text messages recovered from the appellant’s cell phone
between him and Ms. SB. Ms. SB did not testify at trial. Her father testified instead and
identified her phone number. Without the admission of the text messages there was no
evidence to convict the appellant of the offense of communicating indecent language with
Ms. SB. We conclude the error was not harmless beyond a reasonable doubt as to the
Second Additional Charge and Specification and set it aside.9


8
  See generally Dan Terzian, The Fifth Amendment, Encryption, and the Forgotten State Interest, 61 UCLA L. Rev.
Disc. 298 (2014) (discussing the use of subpoenas to require suspects to produce passwords).
9
  Because we dismiss this specification, we do not address the appellant’s argument that the evidence is factually
and legally insufficient.


                                                        9                                      ACM 38438
                         Lack of Executive Order for Article 120b, UCMJ

       The appellant was convicted of two specifications in violation of Article 120b,
UCMJ. Both specifications alleged he committed a lewd act with a child between 12 and
16 years of age and had the specific intent to arouse his sexual desire, or that of the child,
when engaging in the acts. One act was telling a child she would “look good” in adult
pornographic poses, and the other was telling a child, “I want 2 lick u” via
communication technology.        The appellant challenged the sufficiency of the
Government’s evidence at trial but did not challenge the specifications as defective. The
appellant now alleges the specifications are defective because the President has not
promulgated an Executive Order with the elements of the offense.10

        At the time of the appellant’s court-martial, the MCM, Part IV, ¶ 45b., included
the following note after Article 120b, UCMJ:

                 Note: The subparagraphs that would normally address
                 elements, explanation, lesser included offenses, maximum
                 punishments, and sample specifications are generated under
                 the President’s authority to prescribe rules pursuant to
                 Article 36. At the time of publishing this MCM, the President
                 had not prescribed such rules for this new statute,
                 Article 120b. Practitioners should refer to the appropriate
                 statutory language and, to the extent practicable, use
                 Appendix 28 as a guide.

       We reject the appellant’s claim that the failure to publish elements in an Executive
Order results in a defective specification. “Whether a specification is defective and the
remedy for such error are questions of law, which we review de novo.” United States v.
Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (citing United States v. Crafter, 64 M.J. 209, 211
(C.A.A.F. 2006); United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011) (determining
the appropriate remedial standard by means of a de novo review of the rights at stake)).

                 The military is a notice pleading jurisdiction. A charge and
                 specification will be found sufficient if they, first, contain the
                 elements of the offense charged and fairly inform a defendant
                 of the charge against which he must defend, and, second,
                 enable him to plead an acquittal or conviction in bar of future
                 prosecutions for the same offense. The rules governing
                 court-martial procedure encompass the notice requirement:

10
   Executive Order 13643 was published on 15 May 2013, prior to the adjournment of the appellant’s court-martial.
It includes the maximum punishments for Article 120b offenses but does not include any elements, explanation,
lesser included offenses, or sample specifications.


                                                       10                                     ACM 38438
             A specification is sufficient if it alleges every element of the
             charged offense expressly or by necessary implication.

United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (citations omitted) (internal
quotation marks omitted).

      Here, the specifications contain every element of the offenses as enacted by
Congress.

             The Supreme Court has observed that the definition of the
             elements of criminal offense is entrusted to the legislature,
             particularly in the case of federal crimes, which are solely
             creatures of statute. Congress has broad authority to define
             the elements of offenses under the constitutional power to
             make rules for the government and regulation of the armed
             forces.

United States v. Neal, 68 M.J. 289, 300 (C.A.A.F. 2010) (citations omitted) (internal
quotation marks omitted).

       We conclude that Congress provided the required due process notice of the
elements when it revised Article 120b, UCMJ, as a punitive article established by the
National Defense Authorization Act for Fiscal Year 2012. The appellant has been on
notice since this law was passed by Congress. While an Executive Order providing
further guidance would be welcome, it is not required to establish elements.
The elements of federal criminal law are established by Congress. The referred
specifications and charges included the congressionally mandated elements. We reject
the appellant’s argument.

                 Appellate Discovery of Victim’s Mental Health Records

       The appellant moved this court to compel production of post-trial discovery, a
motion opposed by the Government. We denied the motion and the appellant’s motion
for reconsideration for the reasons set forth below.

       Specifically, the appellant requests, pursuant to United States v. Campbell,
57 M.J. 134 (C.A.A.F. 2002), that this court order production of the mental health records
of Miss SR, a minor victim of the appellant’s sexual acts. The appellant alleges the
records should be produced because two victim impact statements from Miss SR’s
mother presented to the convening authority referenced mental health treatment Miss SR
was receiving, treatment complicated by the appellant’s actions.




                                            11                              ACM 38438
       In order for this court to compel the Government to produce post-trial discovery,
an appellant must first meet “his threshold burden of demonstrating that some measure of
appellate inquiry is warranted.” Id. at 138. In addressing this question, this court should
consider, among other matters, the following:

              (1) whether the defense has made a colorable showing that the
                  evidence or information exists;
              (2) whether the evidence or information sought was
                  previously discoverable with due diligence;
              (3) whether the putative information is relevant to appellant’s
                  asserted claim or defense; and
              (4) whether there is a reasonable probability that the result of
                  the proceeding would have been different if the putative
                  information had been disclosed.

Id.

        The appellant has failed to meet his threshold burden of demonstrating some
measure of appellate inquiry is warranted in this matter. First, he has not demonstrated
that the putative information is relevant to any asserted claim or defense. The appellant
has filed an assignment of errors in this matter and had not asserted any alleged error in
the post-trial processing of his case. At most, the appellant alleges that if the records
conflicted with the victim impact statement then he would challenge the veracity of the
victim and allege an error in post-trial processing. We find these claims to be too highly
speculative to merit any weight. The appellant has no enumerated right to have
Miss SR’s mental health records be produced post-trial, apart from the Campbell
standard. Air Force policy allows victims the opportunity to provide written input to the
convening authority’s staff judge advocate as to whether the convening authority should
approve the findings and sentence or grant some form of clemency. Air Force Instruction
51-201, Administration of Military Justice, ¶ 9.9 (6 June 2013). Victim impact
statements are then provided to the accused and defense, and the defense is provided the
opportunity to comment upon such statements as part of its post-trial submission to the
convening authority. Id. at ¶ 9.9.3. No mechanism is established in Air Force process to
provide the defense with additional discovery rights based upon information contained in
a victim impact statement, apart from the Campbell standard.

       Additionally, we see no reasonable probability that the result of the proceeding
would have been different had this information been disclosed. Having reviewed the
entirety of the matters submitted to the convening authority, including the victim impact
statements, we see no reasonable probability that the convening authority might have
granted clemency had Miss SR’s mental health records been produced, even assuming
those records would have been favorable to the appellant and could have been used
consistent with Mil. R. Evid. 513. This is particularly true where the victim impact


                                             12                              ACM 38438
statements related to the impact of the appellant’s crimes but the appellant maintained his
innocence in his clemency submission. We again reject the appellant’s claim that
post-trial statements made by victims for consideration by the convening authority
provide a basis for the production of mental health records.

                                  Sentence Reassessment

       This court has “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly held
that if we “can determine to [our] satisfaction that, absent any error, the sentence
adjudged would have been of at least a certain severity, then a sentence of that severity or
less will be free of the prejudicial effects of error . . . .” United States v. Sales,
22 M.J. 305, 308 (C.A.A.F. 1986). This analysis is based on a totality of the
circumstances with the following as illustrative factors: dramatic changes in the penalty
landscape and exposure, the forum, whether the remaining offenses capture the gravamen
of the criminal conduct, whether significant or aggravating circumstances remain
admissible and relevant, and whether the remaining offenses are the type that we as
appellate judges have experience and familiarity with to reliably determine what sentence
would have been imposed at trial. Winckelmann, 73 M.J. at 15–16.

        In the present case, we have set aside the charge and specification for
electronically communicating indecent language to Ms. SB. The appellant is justly
convicted of multiple sexual offenses against Ms. KT, Miss SR, Ms. DM, Miss EM,
Mr. BR, and Ms. AR. Even after he was under investigation for these various offenses,
the appellant’s commander gave him an order not to communicate with any person under
the age of 18 years for 24 hours; the appellant refused to comply with that order and
contacted Miss TA. There is no dramatic change to the penalty landscape—the dismissed
charge carried a maximum sentence of confinement of 2 years. The appellant is
convicted of the offense of rape by force of Ms. DM, an offense that has a maximum
punishment of life without parole. He is also convicted of multiple other offenses to
include indecent acts and indecent liberties with a child, which combined, carry a
maximum of decades in confinement. We also consider that the appellant was sentenced
by a military judge alone, a forum that results in us being more certain of our
determination as to what would have occurred absent the error. See id. at 16. The
remaining offenses capture the gravamen of the criminal conduct and the most significant
aggravating evidence remains admissible. Ms. SB did not testify in either findings or
sentencing. Her father’s testimony was primarily focused on her telephone number. As
appellate court judges, we have experience and familiarity in reliably determining the
sentence that would have been imposed at trial absent the set aside charge and
specification. We have considered the totality of the circumstances presented, to include
the factors addressed above, and determine that the sentence imposed would have been at
least the approved sentence of a dishonorable discharge, confinement for six years and
reduction to E-1.


                                             13                              ACM 38438
                                                   Conclusion

       We set aside the Second Additional Charge II and its Specification. We affirm
Specification 2 of Charge I with the exception of the words “to expose her breasts.” We
find the approved findings, as modified, and sentence are correct in law and fact, and no
remaining error materially prejudicial to the substantial rights of the appellant occurred.11
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c), United States v. Reed,
54 M.J. 37, 41 (C.A.A.F. 2000). Accordingly, the approved findings and sentence are
AFFIRMED.



                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




11
   Although the military judge ordered a Mil. R. Evid. 513 closed hearing, these pages of the record are not under
seal. Accordingly, the Clerk of the Court is directed to seal pages 19—26 of the transcript in the original record of
trial. The Government is directed to remove these 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).


                                                         14                                       ACM 38438
