             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                                  Technical Sergeant JAMES P. SAUK
                                        United States Air Force

                                                  ACM 38398
                                                   (recon)


                                                ____ M.J. ____

                                                27 March 2015

            Sentence adjudged 23 March 2013 by GCM convened at Joint Base
            Andrews, Maryland. Military Judge: Mark L. Allred.

            Approved Sentence:          Bad-conduct discharge, confinement for 5 years,
            and reduction to E-1.

            Appellate Counsel for the Appellant: Captain Michael A. Schrama (argued)
            and Colonel Patrick J. Wells.

            Appellate Counsel for the United States: Gerald R. Bruce, Esquire
            (argued); Colonel Katherine E. Oler; Lieutenant Colonel C. Taylor Smith;
            Lieutenant Colonel Nurit Anderson; Major Daniel J. Breen; Captain Collin
            F. Delaney; Captain Richard J. Schrider.

                                                   EN BANC

                 MITCHELL 1, HECKER, WEBER, TELLER, and CONTOVEROS
                                 Appellate Military Judges

                                       UPON RECONSIDERATION

                                PUBLISHED OPINION OF THE COURT

1
 In a memorandum dated 2 February 2015, Lieutenant General Christopher F. Burne, The Judge Advocate General,
designated Senior Judge Martin T. Mitchell as the Chief Appellate Military Judge in cases where Chief Judge Mark
L. Allred served as the military judge or recused himself under the governing standards of judicial conduct. In this
case, Chief Judge Allred, while serving as the trial judge, presided over the appellant’s court-martial. Therefore,
Judge Mitchell served as the Chief Judge for this case.
PER CURIAM:

       A general court-martial composed of officer and enlisted members convicted the
appellant, contrary to his pleas, of involuntary manslaughter, aggravated assault, assault,
and negligent homicide, in violation of Articles 119, 128, and 134, UCMJ, 10 U.S.C.
§§ 919, 928, 934. The court sentenced the appellant to a bad-conduct discharge,
confinement for 5 years, and reduction to E-1. The convening authority approved the
sentence as adjudged.

       On appeal, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the
appellant contends: (1) the evidence is factually and legally insufficient to sustain his
convictions; (2) his trial defense counsel were ineffective; (3) unlawful command
influence made it impossible for him to receive a fair trial and clemency consideration;
(4) he is entitled to relief pursuant to Article 13, UCMJ, 10 U.S.C. § 813; and (5) the
sentence is inappropriately severe. He also contends the military judge erred by failing to
merge the specifications as either being multiplicious or as an unreasonable
multiplication of charges. Before turning to the assignments of error, we address the
Government’s failure to obey an order this court issued to produce post-trial discovery.

                                       Background

       The charges in this case stemmed from the death of the appellant’s two-month-old
son. The infant had been rushed to a local emergency room by paramedics after his
parents called 911 early on the morning of 10 January 2011. When the infant arrived at
the emergency room, he was not breathing, had no pulse, and was not responsive. A
pediatrician was eventually able to restore the infant’s heartbeat, but she observed
indications the child had suffered what she believed to be non-accidental head trauma
(lack of pupil response to light, eye hemorrhages, low body temperature, and seizures).
The infant was transferred to The Johns Hopkins Hospital where he could be treated at a
pediatric intensive care unit. His brain began to swell, causing irreversible brain damage.
On 11 January 2011, he was removed from life support.

       The appellant was charged with six offenses involving the death of his son:
unpremeditated murder, involuntary manslaughter by culpable negligence, aggravated
assault by force likely to cause death or grievous bodily harm, negligent homicide,
assault, and child endangerment. He was acquitted of the murder charge and child
endangerment charges and convicted of the remaining offenses.

       On 20 January 2015, a panel of this court issued its decision in this case,
dismissing the aggravated assault, negligent homicide, and assault specifications, as
explained below. We subsequently granted the Government’s request for en banc
reconsideration.



                                             2                                ACM 38398
                             Orders Issued by Courts of Criminal Appeals

       Two days after we issued our initial decision in this case, the appellant moved for
leave to file a motion to compel production of post-trial discovery. The appellant noted
that the Inspector General for the Department of Defense had recently issued a report on
the evaluation of military criminal investigative organizations’ child death investigations
during a two-year time period. The report found that six cases studied had “significant
deficiencies,” with two of them originating from the Air Force Office of Special
Investigations (AFOSI), the organization that was involved in the appellant’s case. 2 The
appellant moved this court to order the production of any and all documents related to the
investigation concerning any deficiencies committed by investigative organizations that
investigated the appellant’s case. The Government opposed the motion.

       After considering both parties’ submissions and the direction outlined in
United States v. Campbell, 57 M.J. 134 (C.A.A.F. 2002), this court granted the
appellant’s motion in part. The court ordered the Government to disclose by
17 February 2015 whether the appellant was referenced in either investigation returned to
AFOSI. The Government promptly moved for reconsideration and asked this court to
consider that motion en banc. We denied their request and issued a revised order
directing the Government to comply by 20 February 2015.

        The Government did not comply with that order. Instead, on the date by which the
court had ordered it to provide post-trial discovery, the Government filed a “motion for
leave to file response.” The Government’s motion expressed its continued disagreement
with this court’s post-trial discovery order and indicated the Government was
“considering whether to accept this Court’s decision or to pursue it further by way of
certification to our superior Court.” The Government did not indicate it had requested
any relief from the United States Court of Appeals for the Armed Forces (C.A.A.F.) or
this court. Further, the Government did not request a delay of the compliance deadline or
that this court stay enforcement of its post-trial discovery order until a certification
decision could be made.

       The appellant timely filed a response to the Government’s pleading, asking this
court to set aside the findings and sentence “based on the government’s intentional
refusal to comply with a judicial order without seeking relief from the order with this
Court.” We ordered the Government to show cause why the appellant’s request should
not be granted.


2
  According to the report, a “significant deficiency indicates a breakdown in practices, programs, or policies having
actual notable adverse impact on, or a likelihood of materially affecting the investigation or adversely affecting, or
having a high probability of adversely affecting, the outcome of an investigation,” including key evidence not
collected, and scene examinations not sufficiently conducted.




                                                          3                                           ACM 38398
        In response to a show cause order from this court and during oral argument, the
Government asserted the United States is allowed 60 days from the issuance of our
revised order to seek certification to C.A.A.F. The Government generally asserted that
The Judge Advocate General could certify this matter for our superior court’s review
under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2). While the Government’s position
centered on the post-trial discovery order issued in this case, the Government indicated
that all orders from this court are theoretically subject to the same 60-day period during
which a party need not comply with this court’s orders if it believes certification to
review the order is appropriate. The Government explained it did not seek an
enlargement to comply or a stay of the order’s execution because this court’s orders, like
its decisions, are not self-executing and thus are not final until this period has run. We
disagree.

       A service court order is “a command or directive issued by the Court” as part of its
duties under Article 66, UCMJ, 10 U.S.C. § 866. A.F. CT. CRIM. APP. R. PRAC. AND
PROC. 18.1. Unlike its decisions, interlocutory orders issued by this court as part of its
review under Article 66, UCMJ, are self-executing and do not require the issuance of a
mandate to be effective. The effective date of such an order is the date it was issued.
Cf. C.A.A.F. R. PRAC. AND PROC. 43A(b). It is true that final decisions or opinions of the
court are not self-executing because the parties enjoy a statutory right to appeal such
decisions or opinions. United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). However,
no case has held that this applies with respect to orders of this court, particularly an
interlocutory order dealing with discovery.

       Counsel have an obligation to “comply promptly with all orders and directives of
the court.” A.F. STANDARDS FOR CRIM. JUSTICE, Standard 3-5.2(c) (6 June 2013). This
court recently made this point clear. See United States v. Bowser, 73 M.J. 889, 899
(A.F. Ct. Crim. App. 2014), aff’d, No. 15-0289/AF (C.A.A.F. 25 March 2015) (“Short of
some completely unusual circumstances not present here, the Government simply does
not have the authority to choose which orders of a military judge it will follow and which
ones it will not, at least not without facing the threat of remedial action or even
punishment.”). If the Government did not understand the message of Bowser before, we
make the point plain now: counsel appearing before this court have a duty to obey all
orders of this court, except in the extraordinary situation where the court issues an order
plainly calling for counsel to engage in unlawful or unethical conduct. It matters not
whether the Government disagrees with this court’s order or that a “professional
disagreement” (as the Government terms it) arises. See United States v. Roach, 66 M.J.
410, 419 (C.A.A.F. 2008) (emphasizing that Courts of Criminal Appeals may set and
enforce deadlines and have broad powers to issue orders to counsel to ensure the timely
progress of cases reviewed under Article 66, UCMJ).

      Of course, counsel disagreeing with an order of this court may seek any available
review of such an order from our superior court. We express skepticism with the


                                            4                                 ACM 38398
Government’s position that our superior court has jurisdiction to review an interlocutory
order through certification by The Judge Advocate General, particularly when the case
remains with this court pursuant to a pending motion for reconsideration. See C.A.A.F.
R. PRAC. AND PROC. 19(g) (“If an appeal is filed in this Court before the expiration of
time to file a motion for reconsideration in a Court of Criminal Appeals, this Court, upon
the prompt filing of a motion to dismiss by a party stating that a timely motion for
reconsideration is pending in a Court of Criminal Appeals, may dismiss the appeal
without prejudice and remand the case to the Court of Criminal Appeals for resolution of
the motion for reconsideration. Following a decision by the Court of Criminal Appeals
on the motion for reconsideration, review may be sought in this Court under Article 67,
UCMJ.”); see also United States v. Curtin, 44 M.J. 439, 440 (C.A.A.F. 1996) (holding
that the definition of a “case” for purposes of certification under Article 67(a)(2)
“includes a ‘final action’ by an intermediate appellate court on a petition for
extraordinary relief” (quoting United States v. Redding, 11 M.J. 100, 104 (C.M.A.
1981)).

        However, it is not for this court to decide our superior court’s jurisdiction in this
situation. If the Government wishes to seek review of this court’s orders, it may do so.
In the meantime, however, all parties must comply with this court’s orders. No “grace
period” is permitted during which a party may simply decide not to comply with an order
solely because it is considering whether to seek review of the order. We roundly reject
the Government’s view that compliance with orders is not required until the time has
elapsed for the party to seek appellate review of the order. The effective functioning of
this court would cease if each court order automatically includes an extension of up to
60 days to its effective date to allow for consideration of appellate review options.
Accordingly, if a party is considering appellate review of an order issued by this court, or
if the party has already filed for further appellate review of the order, that party must ask
this court or our superior court to stay enforcement of the order while that process is
ongoing. Without such a request being granted and short of some completely unusual
circumstances not present here, the Government simply does not have the authority to
choose which orders of a court it will follow and which ones it will not, at least not
without facing the threat of remedial action or even punishment.

       Our order for oral argument directed the parties to address whether this court
should dismiss the charges and specifications in this case due to the Government’s
conduct, or alternatively whether it should hold appellate government counsel in
contempt of court. We believe that both options are available to us under our broad
authority to do justice under Article 66(c), UCMJ, and our contempt authority under
Article 48, UCMJ, 10 U.S.C. § 848. However, on the eve of oral argument, the
Government belatedly provided declarations responsive to this court’s post-trial




                                             5                                  ACM 38398
discovery order. 3 The Government’s belated compliance does not excuse its earlier
actions, particularly when it continued to maintain the position at oral argument that it did
not need to comply with this court’s order or even seek a stay of the enforcement of the
order to pursue its options for further review. The Government had no legal basis to
disobey this court’s order, particularly in light of the recent Bowser decision. Bowser,
73 M.J. 889. Nonetheless, we have elected not to dismiss the charges and specifications
or hold government counsel in contempt.

                                               Multiple Offenses

       During our initial review of this case, we affirmed the finding of guilt for the
involuntary manslaughter by culpable negligence but dismissed the aggravated assault,
assault, and negligent homicide offenses. 4 We noted the Government is authorized to
charge multiple offenses in the alternative based on exigencies of proof but if a panel
returns guilty verdicts as to those alternative charges, “‘it [is] incumbent’ either to
consolidate or dismiss a specification.” United States v. Elespuru, 73 M.J. 326, 329
(C.A.A.F. 2014) (quoting United States v. Mayberry, 72 M.J. 467, 467–68
(C.A.A.F. 2013)) (alteration in original). The Government timely moved this court to
reconsider our opinion en banc, arguing the Elespuru holding was limited to the facts of
that case and, unlike in that case, the Government had not agreed that these specifications
were charged in the alternative.

        Although trial counsel did not state outright that these offenses were charged in
the alternative, the actions of the Government before and after trial make clear that was
the case. Prior to trial, the investigating officer noted the charges covered a variety of
legal theories for culpability and would not be improper if viewed as charged in the
alternative. Similarly, during findings argument, trial counsel referred to the six charges
as “various levels of culpability as to [the child’s] death.” After findings were
announced, the military judge asked if the parties had an agreement on the appropriate
way to handle the case based on the manner it was charged and the panel’s findings. The
Government then agreed the charges should be treated as one offense and merged for
purposes of sentencing. In light of this and the evidence adduced at trial, we reject the

3
    According to declarations submitted by the Government, the appellant was not referenced in either investigation
returned to AFOSI. These declarations do not indicate that the Office of the Inspector General for the Department
of Defense or the AFOSI had raised any objection to the appellant being provided this information.
4
    The appellant was convicted of four specifications, each alleging that a single (non-divers) action occurred
between 13 November 2010 (the day the child was born) and 11 January 2011 (the day the child died). The
involuntary manslaughter charge alleged the appellant caused the child’s death through culpable negligence by
striking him on the head or by exerting some other excessive force against his head. The negligent homicide charge
alleged he caused the death by negligently striking the child or handling him in a negligent manner. The aggravated
assault charge alleged the appellant struck the child or otherwise caused him to come into contact with a force likely
to produce death or grievous bodily harm (brain injury). The assault specification alleged he unlawfully struck or
otherwise used excessive force against the child.




                                                          6                                          ACM 38398
Government’s argument on reconsideration and again set aside the aggravated assault,
assault, and negligent homicide offenses.

       Although we set aside these specifications, the appellant remains convicted of
involuntary manslaughter by culpable negligence. Because the military judge instructed
the panel that the specifications were multiplicious for sentencing and calculated the
maximum confinement as 15 years (based on involuntary manslaughter of a child), we
find the approved and adjudged sentence would have been the same as the original
sentence, even if these specifications were dismissed at the trial level. 5 See United States
v. Moffeit, 63 M.J. 40, 41 (C.A.A.F. 2006) (stating that an appellate court can reassess the
sentence if it “can determine to its satisfaction that, absent any error, the sentence
adjudged would have been of at least a certain severity” as a “sentence of that severity or
less will be free of the prejudicial effects of error”); see also United States v.
Winckelmann, 73 M.J. 11 (C.A.A.F. 2013).

                                       Factual and Legal Sufficiency

      The appellant argues that the evidence is legally and factually insufficient to
support his conviction for involuntary manslaughter. We disagree.

        Under Article 66(c), we review issues of legal and factual sufficiency de novo.
See 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)). 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 reasonable doubt.” Turner, 25 M.J. at 325.

       The appellant was convicted of involuntary manslaughter which, as charged here,
required the prosecution to prove beyond a reasonable doubt that (1) the appellant’s son
was dead; (2) his death resulted from the act of the accused in striking him on the head,

5
    Although not raised as an issue by the appellant, we note the staff judge advocate recommendation (SJAR)
erroneously advised the convening authority that the maximum sentence included 25 years’ confinement. The
defense asked that the findings be set aside or, in the alternative, that his sentence be reduced by 10 months. He did
not object to the SJAR or mention the incorrect maximum in the clemency submission. Failure to raise this issue in
a timely manner waives it unless it is plain error. Rule for Courts-Martial 1106(f); United States v. Scalo,
60 M.J. 435, 436 (C.A.A.F. 2005). Although the staff judge advocate was clearly mistaken when he misinformed
the convening authority about the maximum confinement time, the appellant has not made a colorable showing of
possible prejudice. See United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Under the circumstances of this case,
we do not believe correct advice on the maximum punishment would have foreseeably led the convening authority
to take any action other than the one he did, i.e., approving the sentence as adjudged.




                                                          7                                           ACM 38398
or by asserting some other excessive force against his head between on or about
13 November 2010 and on or about 11 January 2011; (3) this act amounted to culpable
negligence; (4) the killing of the child by the appellant was unlawful; and (5) the child
was under the age of 16 years. “Culpable negligence” is defined as a degree of
carelessness, greater than simple negligence, and is a negligent act or omission
accompanied by a culpable disregard for the foreseeable consequences to others of that
act or omission. Manual for Courts-Martial, United States, Part IV, ¶ 44.c.(2)(a)(i)
(2008 ed.). The basis for this charge “may be a negligent act or omission which, when
viewed in the light of human experience, might foreseeably result in the death of another,
even though death would not necessarily be a natural and probable consequence of the act
or omission.” Id.

        It was undisputed that the appellant was alone with his son when the child became
critically ill and stopped breathing. The appellant argues, however, that the evidence is
insufficient to prove he was the person who caused the injuries that resulted in his son’s
death. He notes that the Government and defense experts disagreed about when the fatal
injury was inflicted and that the evidence therefore cannot prove he was the perpetrator.
The appellant further notes that his wife had anger management issues, had acted out
violently towards him, and was under stress due to post-partum depression. He also
points to the testimony of his expert who indicated the appellant’s routine handling of his
son that night could have triggered a re-bleed from a preexisting hemorrhage caused by
someone else.

       We have reviewed all the evidence, including the extensive expert testimony, and
taken into account the arguments raised by the appellant. The medical evidence
convincingly revealed that the infant suffered non-accidental injuries, including
significant damage to his brain from blunt force trauma. Despite significant efforts by
the defense to portray the appellant’s wife as the cause of the infant’s death, the members
were convinced beyond a reasonable doubt that the appellant caused the infant’s death
through his own culpable negligence. Viewing the evidence in the light most favorable
to the Government, we are convinced a rational factfinder could find beyond a reasonable
doubt the appellant was guilty of this offense. Upon our own review of the evidence in
the record of trial, we are personally convinced of the appellant’s guilt beyond a
reasonable doubt.

                            Ineffective Assistance of Counsel

       The appellant contends his three trial defense counsel were ineffective because
they failed to properly handle voir dire and member challenges and failed to present a
good military character defense. We disagree.

      This court reviews claims of ineffective assistance of counsel de novo.
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims,


                                             8                                ACM 38398
we follow the two-part test outlined by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007). Our superior court has applied this standard to military courts-martial,
noting that “[i]n order to prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate both (1) that his counsel’s performance was deficient, and
(2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361
(C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687; Mazza, 67 M.J. at 474).

       The appellant bears the burden of establishing his trial defense counsel were
ineffective. See United States v. McConnell, 55 M.J. 479, 484 (C.A.A.F. 2001). The law
presumes counsel actions to be appropriate, and we will not second-guess a trial defense
counsel’s reasonable strategic or tactical decisions. See United States v. Morgan,
37 M.J. 407, 410 (C.M.A. 1993); United States v. Mazza, 67 M.J. 470, 475
(C.A.A.F. 2009). To prevail on a claim of ineffective assistance of counsel, the appellant
“must rebut this presumption by pointing out specific errors made by his defense counsel
which were unreasonable under prevailing professional norms. The reasonableness of
counsel’s performance is to be evaluated from counsel’s perspective at the time of the
alleged error and in light of all the circumstances.” United States v. Scott,
24 M.J. 186, 188 (C.M.A. 1987) (citation omitted). We need not decide if trial defense
counsel was deficient during post-trial representation if the second prong of Strickland
regarding prejudice is not met. See United States v. Saintaude, 61 M.J. 175, 183
(C.A.A.F. 2005).

1. Voir dire and member challenges

       The appellant argues his trial defense counsel were ineffective for not specifically
asking the potential panel members about a December 2012 Air Force Times article that
referred to his case and for leaving certain panel members on the case.

        In response to a question from the military judge, all prospective panel members
said they had no knowledge of the facts or events of the case. The appellant’s senior
defense counsel conducted a limited follow-up by asking if any of them thought they had
heard about the case or “read about it in the Air Force Times or anywhere else.” All the
potential members answered negatively. In their court-ordered declarations, two of the
appellant’s defense counsel stated the defense deliberately made the strategic decision to
not specifically draw the members’ attention to the actual article. The defense team
believed the members would answer truthfully if they knew about the case from that
article and the defense did not want to refresh their memory if they could not recall
reading it. The counsel’s declarations provide sound and reasonable explanations for the
approach taken during voir dire which we will not second-guess.                  Morgan,
37 M.J. at 410; United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (“Defense
counsel do not perform deficiently when they make a strategic decision to accept a risk or
forego a potential benefit, where it is objectively reasonable to do so.”)


                                             9                                ACM 38398
        In his declaration, the appellant also indicates that several panel members had
identified professional and personal experience in “investigative, abuse, and medical
issues” which could have given them a bias which rendered them incapable of impartially
weighing the evidence in the case. We disagree that his counsel were ineffective for not
challenging these members for cause or exercising the defense’s sole peremptory
challenge on one of them. First, trial defense counsel did successfully challenge one
prospective member based on his friend’s previous exposure to child abuse. The defense
also concurred in two challenges involving prospective members’ experience in law
enforcement and another member’s indication of bias. As to the panel members who
remained, these members did not possess an actual or implied bias that would require
their excusal from the case. See Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) (“A
member shall be excused for cause whenever it appears that the member . . . [s]hould not
sit as a member in the interest of having the court-martial free from substantial doubt as
to legality, fairness, and impartiality.”); United States v. Napoleon, 46 M.J. 279, 283
(C.A.A.F. 1997) (stating that actual bias exists where any bias will not yield to the
evidence presented and the judge’s instructions); United States v. Bagstad,
68 M.J. 460, 462 (C.A.A.F. 2010) (stating that even if a panel member disclaims bias,
implied bias exists when most people in the same position would be prejudiced). All the
members affirmed their impartiality and ability to decide the case solely on the evidence
before them. The defense thoroughly explored any issues of possible bias in individual
voir dire, even questioning one member who had previously served in security forces. As
there was no evidence of actual or implied bias on the part of these panel members, the
trial defense counsel’s decision to not challenge these panel members falls within the
bounds of reasonable performance. Additionally, all three trial defense counsel stated
that the appellant was actively involved in the defense team’s discussion about the results
of the voir dire process and who they should challenge. By failing to challenge these
members at trial, the appellant waived this issue. See R.C.M. 912(f)(2)(B) and (f)(4)
(failing to raise a challenge to a panel member in a timely manner waives the issue);
United States v. Stone, 26 M.J. 401, 403 (C.M.A. 1988).

       Lastly, the appellant contends MSgt K should have been challenged as a panel
member during the court-martial because the panel member had a professional
relationship with the appellant. While the panel was reviewing the appellant’s
performance reports during the sentencing phase, MSgt K sent a note to the military
judge indicating he had just realized he was stationed at Scott Air Force Base at the same
time as the appellant and the two worked in the same building for a short period of time.
The parties agreed MSgt K did not need to be questioned about this note. In his
declaration, the appellant says the note triggered his own memory and he recalled having
weekly contact with MSgt K over a two-year period. He contends MSgt K could have
had a preconceived bias against the appellant based on this work history. In his
declaration, one of the appellant’s trial defense counsel states he had no concerns about
MSgt K being biased against the appellant because MSgt K did not recall knowing the


                                            10                                ACM 38398
appellant and the appellant had not had any disciplinary or other problems at that base.
Trial defense counsel’s affidavit also notes the defense considered MSgt K to be a
favorable member based on his answers to questions in voir dire. These are sound and
reasonable explanations for the decision which we will not second-guess. See Morgan,
37 M.J. at 410; Datavs, 71 M.J. at 424. Likewise, we see nothing about MSgt K’s
previous contact with the appellant that causes any concern that MSgt K might be biased
against him in actuality or in appearance.

2. Good character defense

       The appellant’s declaration simply states his counsel were ineffective for not
pursuing a good military character defense. He has not provided any specificity as to
what any such witnesses would have said if they had been called to testify at trial. In that
posture, the appellant has not demonstrated prejudice under the second prong of
Strickland. See United States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006).

       Additionally, the declarations from his trial defense counsel explained the process
they undertook in an effort to procure the evidence necessary to raise this defense. After
considerable effort, the defense team had not found any witnesses willing to give this
type of testimony in a persuasive manner. The declarations further discuss the defense’s
concern about what the appellant’s wife may say in response to this defense, especially
because she refused to meet with the trial defense counsel prior to her testimony in court.
The decision to forgo putting on this evidence on the merits had a reasonable, tactical
basis. While the appellant may disagree with the decision in retrospect, it did not fall
below Strickland’s objective standard of reasonableness. See United States v.
McConnell, 55 M.J. 479, 485 (C.A.A.F. 2001).

                           Unlawful Command Influence (UCI)

        We review allegations of UCI de novo. United States v. Wallace,39 M.J. 284, 286
(C.M.A. 1994). Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in part: “No person
subject to this chapter may attempt to coerce or, by any unauthorized means, influence
the action of a court-martial or any other military tribunal or any member thereof, in
reaching the findings or sentence in any case . . . .” The appellant has the initial burden
of raising UCI. United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). Once the
issue of command influence is properly placed at issue, “no reviewing court may properly
affirm findings and sentence unless [the court] is persuaded beyond a reasonable doubt
that the findings and sentence have not been affected by the command influence.”
United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986). At the appellate level, we
evaluate UCI in the context of a completed trial using the following factors: “[T]he
defense must (1) show facts which, if true, constitute [UCI]; (2) show that the
proceedings were unfair; and (3) show that [UCI] was the cause of the unfairness.”
United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 2003) (citing Stombaugh, 40 M.J. at


                                             11                                ACM 38398
213); see also United States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003); United States
v. Reynolds, 40 M.J. 198, 202 (C.M.A. 1994).

       The appellant contends the publishing of the Air Force Times article and its
distribution on base and amongst members of his unit made it impossible for him to
receive a fair trial and fair consideration from the convening authority during the
clemency stage of his case. The appellant elected not to raise this issue at trial; the sole
evidence of his claims comes from his affidavit submitted on appeal. We find the
appellant has not met his burden of establishing facts that would constitute unlawful
command influence. To the extent he is arguing that pretrial publicity adversely affected
his court-martial, we also find he has failed to meet his burden in that regard. Simpson,
58 M.J. at 372 (stating that the defense may raise the issue of unfair pretrial publicity by
demonstrating either presumed or actual prejudice). As noted above, the members of the
court-martial panel had no knowledge of this article. Furthermore, even assuming the
convening authority was exposed to the purported article, there is no reason to believe
that the convening authority would be adversely affected by a newspaper article when
deciding whether to grant clemency to the appellant.

                                             Pretrial Punishment

         Article 13, UCMJ, prohibits pretrial punishment:

                          No person, while being held for trial, may be subjected
                  to punishment or penalty other than arrest or confinement
                  upon the charges pending against him, nor shall the arrest or
                  confinement imposed upon him be any more rigorous than the
                  circumstances required to insure his presence, but he may be
                  subjected to minor punishment during that period for
                  infractions of discipline.

       At trial, the appellant and his defense counsel told the military judge that the
appellant had not been subjected to illegal pretrial punishment under Article 13, UCMJ.
Through two declarations submitted on appeal, the appellant now argues he is entitled to
sentence credit because he was illegally punished prior to trial. He also argues his
counsel were ineffective for not raising this issue.

      The appellant contends he was subjected to punishment when, after law
enforcement became aware that his infant daughter had been injured, 6 he was

6
    After the death of their infant son, the appellant and his wife had a second baby in late April 2012. On
24 September 2012, after noticing that the infant’s arm was limp, the appellant’s wife took her to a pediatrician.
Full skeletal surveys found seventeen arm and leg fractures of a type that are caused by pulling, yanking, or twisting




                                                         12                                           ACM 38398
(1) restricted to a dormitory room for 72 hours and then required to stay on base for
30 days, (2) required to live on base until his trial, and (3) issued a protection order that
prohibited him from seeing and calling his children. The trial defense counsel’s detailed
declarations described their investigation of these events, what they found during that
investigation, and the reasons they believed the commander’s actions in requiring the
appellant to live on base and have restricted access to his children were undertaken to
protect the appellant and his children, and not as punishment, and could actually benefit
the appellant.

        Our superior court has held that an appellant’s failure to raise the issue of illegal
pretrial confinement at trial “waives that issue for purposes of appellate review absent
plain error.” United States v. Inong, 58 M.J. 460, 465 (C.A.A.F. 2003). In subsequent
case law, however, that court clarified that it is forfeiture that is tested for plain error;
waiver is not. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (stating
that military courts had failed to “consistently distinguish between the terms ‘waiver’ and
‘forfeiture.’”). Waiver is the “intentional relinquishment or abandonment of a known
right,” which precludes appellate review of an issue. Id. (quoting United States v. Olano,
507 U.S. 725, 733 (1993)) (internal quotation marks omitted). Forfeiture is “the failure to
make the timely assertion of a right” leading to plain error review on appeal. Id.

       Here, the appellant and his three trial defense counsel did not raise any issue
associated with any aspects of the appellant’s pretrial treatment. When specifically asked
by the military judge regarding illegal pretrial punishment, the appellant and his defense
counsel specifically disavowed any Article 13, UCMJ, issue. Under these circumstances,
we find the appellant waived this issue. Furthermore, while the appellant’s waiver of this
issue prevented a full development of his claims on the record, based on the information
that is available, we find trial defense counsel’s conclusions to be rational and their
decision not to raise an Article 13, UCMJ, issue to be reasonable. Accordingly, trial
defense counsel were not ineffective for not raising this issue at trial.

       The appellant also argues he should be given confinement credit for 22 March
2013 (the day findings were announced) as he was restricted to his room overnight under
armed guard while he awaited the sentencing proceeding the following day. We review
de novo whether the restriction was tantamount to confinement based on a totality of the
conditions imposed. United States v. King, 58 M.J. 110, 113 (C.A.A.F. 2003). We agree
with the appellant and order relief in our decretal paragraph. See United States v. Mason,
19 M.J. 274 (C.M.A. 1985).



the extremities and were highly specific for child abuse. The appellant was acquitted of aggravated assault and child
endangerment regarding his daughter.




                                                         13                                          ACM 38398
                                      Sentence Severity

       This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ.
“We assess sentence appropriateness by considering the particular appellant, the nature
and seriousness of the offense[s], the appellant’s record of service, and all matters
contained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705
(A.F. Ct. Crim. App. 2009). Although we are accorded great discretion in determining
whether a particular sentence is appropriate, we are not authorized to engage in exercises
of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

       The appellant next avers his sentence is inappropriately severe. We disagree. We
consider whether the appellant’s sentence was appropriate “judged by ‘individualized
consideration’ of [the appellant] ‘on the basis of the nature and seriousness of the offense
and the character of the offender.’” United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81
(C.M.A. 1959)). We have given individualized consideration to this particular appellant,
the nature and seriousness of his offense, the appellant’s record of service, and all other
matters contained in the record of trial. We find the approved sentence was clearly
within the discretion of the convening authority, was appropriate in this case, and was not
inappropriately severe.

                                         Conclusion

       The appellant will be credited with one day against his sentence to confinement.
The findings of guilty as to Charge III (Specifications 1 and 2) and Charge IV
(Specification 1) are set aside, and those Charges and Specifications are dismissed. The
remaining findings (Charge II and its Specification) and the approved sentence are
correct in law and fact, and no error materially prejudicial to the substantial rights of the
appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the modified findings and the approved sentence are

                                        AFFIRMED.


               FOR THE COURT


               LAQUITTA J. SMITH
               Appellate Paralegal Specialist



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