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

                                 No. ACM 39220
                            ________________________

                              UNITED STATES
                                  Appellee
                                         v.
                        Alfredo J. GONZALES
             Master Sergeant (E-7), U.S. Air Force, Appellant
                            ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 14 February 2019
                            ________________________

Military Judge: Shelly W. Schools (arraignment and motions); Marvin
W. Tubbs, II (motions and trial).
Approved sentence: Dishonorable discharge, confinement for 35 years,
and reduction to E-1. Sentence adjudged 29 October 2016 by GCM con-
vened at Laughlin Air Force Base, Texas.
For Appellant: Major Mark C. Bruegger, USAF; Major Patricia Encar-
nación Miranda, USAF; Jeffery King, Esquire. 1
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Amanda L.K. Linares, USAF; Major G. Matt Osborn, USAF; Mary El-
len Payne, Esquire.
Before HUYGEN, MINK, and POSCH, Appellate Military Judges.
Senior Judge HUYGEN delivered the opinion of the court, in which
Judge MINK and Judge POSCH joined.
                            ________________________



1Mr. King filed the initial assignments of error and was then released by Appellant.
Major Encarnación Miranda filed motions and was released by Appellant after he
released Mr. King.
                      United States v. Gonzales, No. ACM 39220


       This is an unpublished opinion and, as such, does not serve as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

HUYGEN, Senior Judge:
    Appellant pleaded and was found guilty by a military judge sitting as a
general court-martial of two specifications of failure to obey a lawful order
and one specification of willful dereliction of duty; two specifications of false
official statement; and one specification of larceny, in violation of Articles 92,
107, and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892,
907, 921. Contrary to Appellant’s pleas, the military judge found him guilty of
one specification of false official statement; three specifications of rape; five
specifications of assault consummated by a battery; and one specification
each of obstruction of justice and unlawful entry, in violation of Articles 107,
120, 128, and 134, UCMJ, 10 U.S.C. §§ 907, 920, 928, 934.2 The military
judge sentenced Appellant to a dishonorable discharge, confinement for 35
years, and reduction to the grade of E-1. The convening authority approved
the sentence as adjudged.
    Appellant raises on appeal3 and through counsel five issues: (1) whether
Specifications 2 and 3 of Charge III should be set aside in light of United
States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018); (2) whether the military
judge erred by admitting evidence of an uncharged 2006 sexual assault to
show propensity under Mil. R. Evid. 413 for a charged 2015 rape; (3) whether
the evidence is factually and legally sufficient to support Appellant’s convic-
tions of offenses involving JH, AG, and CP; (4) whether the military judge
erred by failing to award Appellant credit for illegal pretrial punishment; and
(5) whether the failure of the staff judge advocate’s recommendation (SJAR)
to describe correctly Appellant’s pretrial confinement warrants relief in the


2   Appellant pleaded and was found not guilty of one specification of rape.
3 Appellant initially raised five assignments of error (AOE), three of which—AOE III,
IV, and V—were personally raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982). After the original AOE were filed, Appellant released his civilian
counsel, Mr. King, and military counsel, Major Encarnación Miranda. The court al-
lowed the substitution of a new military appellate defense counsel and the filing of
supplemental AOE. The supplemental filing did not further discuss AOE I and II but
did re-frame AOE III and IV, no longer raising them pursuant to Grostefon. The sup-
plemental filing also raised nine new AOE, eight of which were filed pursuant to
Grostefon. The opinion addresses AOE III–XIV as they were discussed in the sup-
plemental filing.




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                    United States v. Gonzales, No. ACM 39220


form of new post-trial processing. We also considered the issue of timely ap-
pellate review.
    Appellant raises nine issues pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982): (1) whether Appellant’s Fifth Amendment4 rights
were violated when he was ordered to provide the password for his cellphone;
(2) whether Appellant was denied due process of law because the Government
failed to adequately investigate the allegations and appoint a defense investi-
gator and improperly influenced the testimony of witnesses; (3) whether the
trial defense counsel were ineffective by insufficiently cross-examining JH;
(4) whether the trial defense counsel were ineffective by insufficiently high-
lighting the reasons for the convening authority to grant clemency; (5)
whether the military judge erred by not compelling the appointment of a con-
fidential investigator for the Defense; (6) whether the military judge erred by
allowing the Government to offer Mil. R. Evid. 404(b) evidence through “unre-
liable” witnesses; (7) whether the trial defense counsel were ineffective by not
introducing specific evidence to support a Mil. R. Evid. 412 motion; (8)
whether the military judge erred by prohibiting the Defense from introducing
previously excluded evidence to impeach JH during sentencing; and (9)
whether the military judge erred by not applying the “constitutionally re-
quired” exception to a Mil. R. Evid. 513 motion.5 We considered the nine is-
sues raised pursuant to Grostefon and find they warrant no further discus-
sion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
    We determine the evidence is factually insufficient to sustain the convic-
tions for the rape of JH in 2006 and 2007 charged as Specifications 2 and 3 of
Charge III, set aside the findings of guilt of the two specifications, and reas-
sess the sentence. We also determine Appellant is entitled to credit for illegal
pretrial punishment for a portion of the period of his pretrial confinement at
Joint Base San Antonio-Lackland, Texas (Lackland). Finding no other preju-
dicial error, we affirm the remaining convictions and sentence as reassessed.




4   U.S. CONST. amend. V.
5 Related to the last three assignments of error filed pursuant to Grostefon, the trial
transcript, appellate exhibits, and briefs addressing the particular evidence and mat-
ters were sealed pursuant to Rule for Courts-Martial (R.C.M.) 1103A. These portions
of the record and briefs remain sealed, and any discussion of sealed material in this
opinion is limited to that which is necessary for our analysis. See R.C.M. 1103A(b)(4).




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                 United States v. Gonzales, No. ACM 39220


                              I. BACKGROUND
     Appellant was initially investigated in February 2013 for government
travel card misuse and eventually convicted in October 2016 of willful dere-
liction of duty for using his government travel card for unofficial purposes on
divers occasions from 2011 to 2013. He was also found guilty of other offenses
related to his financial entitlements: stealing approximately $12,000 in basic
allowance for housing (BAH) from 2010 to 2011 and signing false official rec-
ords concerning BAH in 2010, family separation allowance in 2010, and trav-
el in 2012. During the investigation of Appellant’s financial misconduct, JH,
at the time his dependent spouse, was interviewed and provided information,
some of it false, but made no allegation of any abuse by Appellant.
    Appellant and AG were engaged in an intimate relationship that began in
2012 and had been living together in Del Rio, Texas, since 2013. During an
argument with AG in March 2015, Appellant called the local police. The po-
lice and, later, Appellant’s first sergeant responded to the house where Appel-
lant, AG, and Appellant’s daughter lived. Shortly after the incident, AG
moved out of the house. Appellant was issued two orders not to contact AG
and temporarily restricted to Laughlin Air Force Base (AFB), Texas, first in
March 2015 for 5 days and then from March 2015 to May 2015 for 55 days.
Nonetheless, Appellant and AG maintained contact and had an on-again, off-
again relationship until August 2015 when AG told Appellant not to visit her
in Lubbock, Texas. Appellant still came to AG’s apartment, refused to leave,
and prevented AG from leaving. After the confrontation, AG contacted securi-
ty forces at Laughlin AFB and reported that Appellant had threatened and
abused her during their relationship and had raped her in June 2015.
    During the initial March 2015 investigation of Appellant’s physical abuse
of AG and the later August 2015 investigation of his sexual abuse of AG, JH
was interviewed and alleged that, during her marriage to Appellant, he phys-
ically and sexually abused her on multiple occasions (“hundreds of times”)
from 2006 through 2010. JH and Appellant grew up together in a small town
in Texas, married in 1993, and had two children. They periodically lived
apart beginning in 2005 when they were having marital difficulties and JH
took their children and moved from Maryland back to Texas. They also did
not live together while Appellant was assigned to Korea and Honduras. In
2009, Appellant, JH, and their children were living together in New Mexico
when JH again took the children and moved back to Texas. JH never again
lived with Appellant, although they maintained contact and occasionally reu-
nited and engaged in consensual sexual activity until they divorced in 2014.
   Investigators also interviewed CP, who had an intimate relationship with
Appellant from 2009 through 2012. CP alleged that Appellant physically



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                  United States v. Gonzales, No. ACM 39220


abused her during their relationship. Appellant ended the relationship after
CP suffered a stroke.
    At trial in 2016, Appellant was convicted of raping JH in 2006 and 2007
but acquitted of raping her in 2009. He was also convicted of raping AG in
2015. He was found guilty of physically assaulting CP in 2011 and 2012 and
AG in 2013 and twice in 2015. In addition, he was found guilty of service-
discrediting conduct by unlawfully entering CP’s home in 2011 or 2012 and
conduct prejudicial to good order and discipline by obstructing justice in 2015
when he promised AG financial compensation if she declined to participate in
his court-martial. He was also found guilty of violating the two orders not to
contact AG on divers occasions in 2015.

                                II. DISCUSSION
A. Statute of Limitations for Rape
    Appellant asserts that the 2015 charges for raping JH in 2006 and 2007,
Specifications 2 and 3 of Charge III, are barred by the five-year statute of
limitations and should be set aside in light of United States v. Mangahas, 77
M.J. 220 (C.A.A.F. 2018). We reject Appellant’s assertion and instead con-
clude there was no time limitation on Appellant being charged with and tried
for raping JH in 2006 and 2007.
   1. Law
    “The applicable statute of limitations is a question of law, which we re-
view de novo. An accused is subject to the statute of limitations in force at the
time of the offense.” Id. at 222 (citations omitted). At the time of the charged
rapes of JH that allegedly occurred in June 2006 and May 2007, the UCMJ’s
statute of limitations stated, “A person charged with . . . rape . . . may be
tried and punished at any time without limitation.” Article 43(a), UCMJ, 10
U.S.C. § 843(a) (2006).
   2. Discussion
    The United States Court of Appeals for the Armed Forces (CAAF) used
Mangahas to examine its decision in Willenbring v. Neurauter, 48 M.J. 152
(C.A.A.F. 1998). Overruling Willenbring, the CAAF determined that rape was
not an “offense punishable by death” for the purpose of the 1994 iteration of
Article 43, UCMJ, which set no time limitation on trying such an offense and
which was in effect at the time of Mangahas’ 1997 alleged rape of a fellow ca-
det at the United States Coast Guard Academy. Mangahas, 77 M.J. at 221–
22. As a result, the five-year statute of limitations in force at the time of
Mangahas’ 1997 offense barred his 2015 charge for rape. Id. at 225.




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                  United States v. Gonzales, No. ACM 39220


    We need not address the question of rape as an “offense punishable by
death,” although Mangahas still informs our review of the statute of limita-
tions in Appellant’s case. As noted by the CAAF in Mangahas, acknowledged
by Appellant, and relied on by Appellee, Congress amended Article 43,
UCMJ, with the National Defense Authorization Act for Fiscal Year 2006
(FY06 NDAA), Pub. L. No. 109–163, § 552–53, 119 Stat. 3136, 3264 (2006).
Mangahas, 77 M.J. at 222 n.2. In particular, Section 553 of the FY06 NDAA
added rape as a specific offense that “may be tried and punished at any time
without limitation.” See Article 43(a), UCMJ, 10 U.S.C. § 843(a) (2006).
    Appellant is correct to point out that Section 552 of the FY06 NDAA also
amended Article 43, UCMJ: it added “rape of a child” as an offense that could
be tried at any time. Appellant also accurately states that Section 552 speci-
fied an effective date of 1 October 2007, whereas Section 553 included no spe-
cific effective date. Appellant then recognizes the presumption that, “where a
section is silent on the effective date, the amendment becomes effective on
the date of publication, in this case, January 6, 2006.”
    More than a presumption, it is a rule of statutory construction that, un-
less specified otherwise, the effective date of a federal law is the date it is en-
acted, or signed by the President. See Gozlon-Peretz v. United States, 498 U.S.
395, 404 (1991) (citations omitted). The FY06 NDAA, including Section 553,
was signed and thus effective on 6 January 2006, which was approximately
five months before Appellant’s earliest charged rape of JH. As a result, at the
time of Appellant’s rape of JH in June 2006 and in May 2007, the statute of
limitations in effect allowed Appellant to be tried for the offenses “at any time
without limitation.” See Article 43(a), UCMJ, 10 U.S.C. § 843(a) (2006).
B. Uncharged Misconduct as Evidence of Propensity
   Appellant next contends that the military judge erred by admitting evi-
dence of an uncharged 2006 sexual assault of JH to show propensity under
Mil. R. Evid. 413 for the charged 2015 rape of AG. Although we find error by
the military judge, we find no resulting prejudice to Appellant.
   1. Additional Background
    JH testified about the 2006 sexual assault by Appellant. According to JH,
she had returned to Maryland in 2006 to retrieve items belonging to her and
her two children as Appellant was moving out of the house the four had lived
in together until 2005. While the movers were inside the house, which was
one of four attached rowhouses, JH went outside and sat at a picnic table on
the back porch. Appellant came outside, put his hand in her hair, and sat on
the table in front of her. He unbuttoned his pants, pulled out his penis, called
her “wh[**]e” and “b[**]ch,” told her to “suck [his] d[**]k,” and forced his pe-
nis into her mouth. JH testified that she did not say anything and could not


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                  United States v. Gonzales, No. ACM 39220


pull away because of his hand in her hair. She also could not stand up be-
cause of their respective positions at the picnic table. After Appellant ejacu-
lated, he went back inside the house. She sat at the table for about an hour
and cried, feeling “embarrassed and ashamed” because she knew the movers
“had seen what was going on,” but she did not tell anyone what had hap-
pened until she described the incident to investigators in 2015.
    AG described the 2015 rape by Appellant as follows: Appellant and AG
had been living apart since March 2015 but had maintained contact and seen
each other occasionally when, in June 2015, they met to spend a weekend to-
gether at a hotel in Lubbock, Texas. Although they kissed and slept in the
same bed during the weekend, they did not have sex. On Monday morning,
AG woke up to get ready to leave and Appellant was “trying to kiss [her] and
touch on [her].” Appellant moved on top of AG and started pulling down her
pajama pants while she repeatedly said “no” and “stop.” She tried to push
him away at the same time he tried to push apart her legs. He was eventual-
ly able to separate her legs and force his penis inside her vagina. After he fin-
ished having sex with her, he stayed in bed. She got up, showered, dressed,
and left. According to AG, when Appellant called her later that day, he apolo-
gized and asked her not to tell anybody; she did not report the incident until
August 2015.
   The Government sought to admit evidence of the uncharged 2006 sexual
assault of JH under Mil. R. Evid. 404(b) for multiple purposes and under Mil.
R. Evid. 413 to show Appellant’s propensity to commit sexual assault. There
was extensive motions practice and several hearings. In the final ruling on
the issue, the military judge admitted the evidence under Mil. R. Evid. 413
without addressing Mil. R. Evid. 404(b).
   2. Law
    A military judge’s decision to admit evidence is reviewed for an abuse of
discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (cita-
tion omitted). Mil. R. Evid. 413(a) provides that, in a court-martial for a sex-
ual offense, “the military judge may admit evidence that the accused commit-
ted any other sexual offense. The evidence may be considered on any matter
to which it is relevant.” This includes using evidence of a sexual assault to
prove the accused has a propensity to commit sexual assault. United States v.
James, 63 M.J. 217, 220 (C.A.A.F. 2006).
   In United States v. Wright, the CAAF articulated three “threshold find-
ings” that a military judge must make before admitting evidence under Mil.
R. Evid. 413: (1) the accused is charged with an offense of sexual assault; (2)
the evidence proffered is evidence of his commission of another sexual as-
sault; and (3) the evidence is relevant under Mil. R. Evid. 401 and Mil. R.


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                 United States v. Gonzales, No. ACM 39220


Evid. 402. 53 M.J. 476, 482 (C.A.A.F. 2000) (citations omitted). “Additionally,
the Court must apply a balancing test under [Mil. R. Evid.] 403.” Id.
       In conducting the [Mil. R. Evid.] 403 balancing test a military
       judge should consider the following factors: the strength of the
       proof of the prior act; the probative weight of the evidence; the
       potential to present less prejudicial evidence; the possible dis-
       traction of the fact-finder; the time needed to prove the prior
       conduct; the temporal proximity of the prior event; the frequen-
       cy of the acts; the presence of any intervening circumstances;
       and the relationship between the parties.
United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (citing Wright, 53 M.J.
at 482). While “inherent in [Mil. R. Evid.] 413 is a general presumption in fa-
vor of admission,” the evidence “may be excluded if its ‘probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the members.’” Id. (quoting Mil. R. Evid. 403) (addition-
al citation omitted).
   3. Discussion
   At issue on appeal is the military judge’s admission under Mil. R. Evid.
413 of the uncharged 2006 sexual assault, specifically, penetration of JH’s
mouth with Appellant’s penis without JH’s consent, to show Appellant’s pro-
pensity to commit the charged 2015 rape of AG. We note that Appellant does
not challenge on appeal the admission of the uncharged assault to show pro-
pensity for the charged rape of JH in 2009, 2007, or 2006, the last allegedly
occurring 8 to 10 hours after the uncharged assault.
    The military judge who ultimately convicted and sentenced Appellant is-
sued a written ruling on the Defense’s motion to limit evidence the Govern-
ment sought to have admitted under Mil. R. Evid. 404(b) and Mil. R. Evid.
413. Referencing the law articulated in Mil. R. Evid. 413, Berry, and Wright
as well as the balancing test of Mil. R. Evid. 403, the military judge found
that the uncharged 2006 sexual assault of JH made more or less likely a fact
of consequence—whether Appellant had a propensity to commit sexual as-
sault—and thus was relevant. The military judge acknowledged that the
2006 incident occurred only once, that being nine years before the 2015 inci-
dent, but pointed to the similarity between JH and AG: each was Appellant’s
intimate partner at the time of the incident involving her. Finding that the
evidence of the 2006 incident, namely, JH’s testimony, would not take much
time and presented little potential for distraction or confusion, the military
judge determined that the probative value of the evidence was not substan-
tially outweighed by the danger of unfair prejudice to Appellant and admitted




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                  United States v. Gonzales, No. ACM 39220


it “to show propensity to commit sexual offenses under Mil. R. Evid. 413 for
all charged Article 120 specifications.” We reach a different conclusion.
    We are unconvinced that the sole proof of the 2006 sexual assault—JH’s
testimony detailed above—was strong; that there was much probative value
of the 2006 sexual assault relative to the 2015 rape; or that the uncharged
assault—which allegedly involved Appellant’s penetration of JH’s mouth with
his penis, occurred outdoors and within view and hearing of others, and in-
volved no physical or verbal resistance by JH—was unlikely to distract or
confuse a factfinder assessing the charged rape in a hotel room of AG who
was resisting vaginal penetration both physically and verbally. We also deem
more significant than did the military judge the temporal distance between
the 2006 sexual assault and the 2015 rape and the relationship difference be-
tween JH and AG: in 2006 JH had been married to Appellant for 13 years
whereas in 2015 AG had been involved in an intimate relationship with Ap-
pellant for 3 years. Finally, we determine that the probative value of the un-
charged 2006 sexual assault of JH to show Appellant’s propensity under Mil.
R. Evid. 413 to rape AG in 2015 was substantially outweighed by the dangers
of unfair prejudice and confusion of the issues.
    Although the military judge erred by admitting the uncharged 2006 sexu-
al assault of JH to show Appellant’s propensity to commit the 2015 rape of
AG, the error did not prejudice Appellant. “A finding or sentence of a court-
martial may not be held incorrect on the ground of an error of law unless the
error materially prejudices the substantial rights of the accused.” Article
59(a), UCMJ, 10 U.S.C. § 859(a). “For a nonconstitutional error such as this
one, the Government has the burden of demonstrating that ‘the error did not
have a substantial influence on the findings.’” Berry, 61 M.J. at 97 (quoting
United States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)) (additional cita-
tion omitted). “In evaluating whether erroneous admission of Government
evidence is harmless, this court uses a four-part test, weighing: (1) the
strength of the Government’s case, (2) the strength of the defense case, (3) the
materiality of the evidence in question, and (4) the quality of the evidence in
question.” Id. at 98 (citation omitted).
    We first find that the Government’s case that Appellant raped AG in 2015
was strong. AG’s testimony about her rape was solid and supported by Appel-
lant’s admission and apology in text messages he sent to AG, albeit at her
prompting. We also considered that, even if the uncharged 2006 incident in-
volving JH had not been admitted under Mil. R. Evid. 413 to show propensity
for the charged 2015 rape of AG, it would have been admitted under Mil. R.
Evid. 404(b) for non-propensity purposes as was evidence of other uncharged
incidents involving JH. The Government described those non-propensity pur-
poses as Appellant’s “hostility towards the women in his life when they do


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                  United States v. Gonzales, No. ACM 39220


disobey him,” “a common plan of controlling [JH] and subjugating her to his
will,” and Appellant’s pattern of abuse of his intimate partners.
   Secondly, we find that the Defense’s case, which relied on undermining
AG’s credibility and highlighting that she did not report the rape until over
two months later, she continued the relationship with Appellant, and she
used his financial resources, was weak. Furthermore, we find the materiality
and quality of the evidence of the uncharged 2006 sexual assault of JH with
respect to the 2015 rape of AG was low, particularly given the distance in
time and dissimilarities in facts and circumstances between the two inci-
dents. Thus, we conclude the military judge’s error in admitting under Mil. R.
Evid. 413 the uncharged 2006 sexual assault of JH to show Appellant’s pro-
pensity to rape AG in 2015 neither had a substantial influence on the find-
ings nor materially prejudiced the substantial rights of Appellant.
C. Factual and Legal Sufficiency
    Appellant challenges the factual and legal sufficiency of Appellant’s con-
victions of offenses involving CP, AG, and JH, specifically, the two physical
assaults of CP and the unlawful entry of CP’s house, the 2015 rape and three
physical assaults of AG, and the 2006 and 2007 rape of JH. We find factually
and legally sufficient the convictions involving CP and AG but find the con-
victions for raping JH in 2006 and 2007 factually insufficient.
   1. Law
    We review issues of legal and factual sufficiency de novo. Article 66,
UCMJ, 10 U.S.C. § 866; United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual suffi-
ciency is limited to the evidence presented at trial. United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993) (citations omitted).
    The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have
found all the essential elements [of the crime] beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the accused’s guilt beyond a
reasonable doubt.” Turner, 25 M.J. at 325. In conducting this unique appel-
late role, we take “a fresh, impartial look at the evidence, giving no deference
to the decision of the trial court on factual sufficiency beyond the admonition
in Article 66(c), UCMJ, to take into account the fact that the trial court saw
and heard the witnesses.” Washington, 57 M.J. at 399. We apply “neither a
presumption of innocence nor a presumption of guilt” but “assess the evidence

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                 United States v. Gonzales, No. ACM 39220


in the entire record . . . [to] make [our] own independent determination as to
whether the evidence constitutes proof of each required element beyond a
reasonable doubt.” Id. “The term reasonable doubt, however, does not mean
that the evidence must be free from conflict.” United States v. Wheeler, 76
M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. Lips, 22 M.J.
679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
    2. Discussion
    At trial and on appeal, Appellant challenged CP’s memory and the unlike-
lihood of the facts underlying her claims; AG’s credibility and the unlikeli-
hood of the facts underlying her claims; and JH’s credibility and the unlikeli-
hood or impossibility of the facts underlying her claims.
       a. Offenses Involving CP
          i) Assault Consummated by Battery
   For Appellant to be found guilty of assault consummated by a battery of
CP in violation of Article 128, UCMJ, the Government had to prove beyond a
reasonable doubt the following elements:
    (1) Appellant did bodily harm to CP, and
   (2) The bodily harm was done with unlawful force or violence by pushing
her with his hands in April 2011 in California and by punching and slapping
her on her face and lips with his hands in January 2012 in Texas. See Manu-
al for Courts-Martial, United States, pt. IV, ¶ 54.b.(2) (2012 ed.) (2012
MCM).6
    To constitute an assault, the act “must be done without legal justification
or excuse and without the lawful consent of the person affected.” 2012 MCM,
pt. IV, ¶ 54.c.(1)(a). “‘Bodily harm’ means any offensive touching of another,
however slight.” Id.
   Testifying at Appellant’s trial in 2016, CP conceded that her stroke in
2012 continued to cause problems with her “short term memory.” She did not
recall correctly all the surrounding circumstances of the two alleged assaults
by Appellant, such as where Appellant was stationed in 2011 when the Air
Force sent him to California for “Air Force related” work. But she was able to
remember the pertinent facts, which were supported by other evidence, for
example, a government travel card statement that demonstrated Appellant
was on temporary duty in California in April 2011. CP described the 2011 as-

6 There was no relevant change from the 2008 MCM to the 2012 MCM. See Manual
for Courts-Martial, United States, pt. IV, ¶ 54.b.(2) (2008 ed.) (2008 MCM).




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                 United States v. Gonzales, No. ACM 39220


sault in California as Appellant pushing her during an argument that led to
her locking him out of their hotel room.
    Regarding the 2012 assault in Texas, the Government witnesses included
not only CP but also the front desk clerk, who unlocked the hotel lobby door
and let in CP but not Appellant, and the two local police officers who re-
sponded after the clerk called emergency services. The witnesses’ observa-
tions supported CP’s account that, while she and Appellant were in the car
and driving back to the hotel, Appellant hit her multiple times with signifi-
cant force and she hit Appellant once. There was photographic evidence of the
visible injuries to her face and hand. While the Defense raised a plausible ar-
gument of self-defense—during an argument in the car, CP hit Appellant who
was driving and he had to fend her off—the military judge was not convinced
and neither are we. Even if CP first hit Appellant and Appellant was initially
defending himself, the severity of CP’s multiple injuries and the absence of
multiple or severe injuries to Appellant render Appellant’s conviction for as-
sault consummated by a battery of CP legally and factually sufficient.
          ii) Unlawful Entry
   For Appellant to be found guilty of unlawful entry in violation of Article
134, UCMJ, the Government had to prove beyond a reasonable doubt the fol-
lowing elements:
   (1) Appellant entered the dwelling home of CP,
   (2) Such entry was unlawful, and
    (3) Under the circumstances, the conduct of Appellant was of a nature to
bring discredit upon the armed forces. See 2012 MCM, pt. IV, ¶ 111.b.
    “An entry is ‘unlawful’ if made without the consent of any person author-
ized to consent to entry or without other lawful authority. No specific intent
or breaking is required for this offense.” Id. ¶ 111.c.
    CP’s roommate testified, and her description of Appellant’s unlawful en-
try into the house she shared with CP corroborated CP’s description of the
incident. While CP had previously allowed Appellant into the house and had
given him a key, she had since ended the relationship, at least temporarily,
stopped communicating with him, and changed the locks on the doors to the
house. On the night of the unlawful entry, Appellant came to the house, rang
the doorbell and knocked, and, after CP and her roommate did not respond to
his phone calls or text messages, came through the garage and into the house
via a kitchen door that had a broken lock. Appellant refused to leave until CP
talked with him. After the Government rested its case, the Defense moved
under Rule for Courts-Martial (R.C.M.) 917 for a finding of not guilty and
pointed to the Government’s failure to prove that Appellant’s conduct was


                                      12
                  United States v. Gonzales, No. ACM 39220


service-discrediting. The military judge found that it was; we agree. While
neither CP nor her roommate testified whether she viewed Appellant’s con-
duct as service-discrediting, we find, as did the military judge, that Appel-
lant’s unlawful entry as charged and described constituted “conduct which
has a tendency to bring the service into disrepute or which tends to lower it
in public esteem.” 2012 MCM, pt. IV, ¶ 60.c.(3).
    Considering the evidence in the light most favorable to the Prosecution,
we determine that a reasonable factfinder could have found beyond a reason-
able doubt all the essential elements of the offenses involving CP and that
the evidence is legally sufficient to support Appellant’s convictions. Having
weighed the evidence in the record and made allowances for not having per-
sonally observed the witnesses, we also conclude the evidence is factually suf-
ficient and are convinced of Appellant’s guilt beyond a reasonable doubt.
       b. Offenses Involving AG
    Appellant pleaded not guilty to all the offenses involving AG except the
two specifications of failure to obey an order not to contact her but was found
guilty of all of them. On appeal, he does not challenge his conviction for ob-
struction of justice by promising her financial support in exchange for her
non-participation in his court-martial.
           i) Rape
   For Appellant to be found guilty of rape of AG in violation of Article 120,
UCMJ, the Government had to prove beyond a reasonable doubt the following
elements:
   (1) Appellant committed a sexual act upon AG in June 2015 by causing
penetration, however slight, of her vulva with his penis, and
   (2) Appellant did so with unlawful force. See 2016 MCM, pt. IV, ¶ 45.b.(1).
    Force includes “the use of such physical strength or violence as is suffi-
cient to overcome, restrain, or injure a person.” Id. ¶ 45.a.(g)(5). “‘[U]nlawful
force’ means an act of force done without legal justification or excuse.” Id. ¶
45.a.(g)(6).
   AG testified about all the charged offenses involving her, and her testi-
mony included her account of the morning of June 2015 when Appellant
raped her in a Texas hotel room. Additional evidence that the sexual act was
rape came in the form of text messages AG and Appellant exchanged on 28
July 2015 over the course of two to three hours, including the following:
       [AG:] And what about my fear...
       [AG:] It’s not my fault you raped me....



                                       13
                  United States v. Gonzales, No. ACM 39220


       [Appellant:] I stayed with you almost an entire week there
       were no issues, I’m not trying to scare you or any way shape or
       form make you feel scared
       ....
       [AG:] I am disgusted.... I said no
       [AG:] I pushed you away
       [AG:] I begged you to stop
       [AG:] And you blame me and act like it’s ok because we had
       had sex before
       [Appellant:] I never blamed anyone for anything
       ....
       [AG:] I mean you won’t even admit it or apologize.... You just
       keep talking about shopping
       [Appellant:] Look, I don’t like texting about all this stuff! And
       again I’m sorry for that day! I [sic] was the most miserable day
       of our lives!
       [AG:] Of my life... Your [sic] not the one who was violated
       [Appellant:] I told you that day what happened was wrong and
       there were no excuses, none of that was your fault! Whatsoev-
       er!
       [Appellant:] I’m sorry, I love you I don’t feel comfortable texting
       about any of this!
       ....
       [Appellant:] But I understand your fear! I completely under-
       stand your agony! But that’s not ever going to happen again.
       Even now when I touch you and you say no I immediately stop.
       Even the last time we had sex, I was scared nervous and tense
       because I didn’t want to hurt you in any way!
       [Appellant:] Again I’m sorry! Nothing was your fault! And that
       will never ever happen again.
    The exchange quoted above was clearly initiated and directed by AG in
order to have Appellant admit his wrongdoing. The texts came in the context
of communications in which both Appellant and AG willingly engaged until
August 2015 when AG told Appellant not to visit her and he did anyway.
Meanwhile, AG had Appellant rent an apartment for her, provide her a pow-
er of attorney so that she could access his financial accounts, and send her a


                                       14
                 United States v. Gonzales, No. ACM 39220


debit card for his bank account. While AG’s actions might cause one to ques-
tion her motive for reporting the June 2015 rape in August 2015, they do not
undermine the credibility of the report.
          ii) Assault Consummated by Battery
   For Appellant to be found guilty of assault consummated by a battery of
AG in violation of Article 128, UCMJ, the Government had to prove beyond a
reasonable doubt the following elements:
   (1) Appellant did bodily harm to AG, and
   (2) The bodily harm was done with unlawful force or violence by pushing,
dragging, and throwing her on the floor and ground with his hands in Octo-
ber 2013; by grabbing and squeezing her hands, face, and cheeks with his
hands in January 2015; and by shoving and scratching her arms, chest, neck,
and face with his hands in March 2015. See 2012 MCM, pt. IV, ¶ 54.b.(2).
    To constitute an assault, the act “must be done without legal justification
or excuse and without the lawful consent of the person affected.” Id. ¶
54.c.(1)(a). “‘Bodily harm’ means any offensive touching of another, however
slight.” Id.
    All the charged incidents of physical assault of AG, like the charged phys-
ical assaults of CP and the uncharged physical assaults of JH, occurred dur-
ing an argument with Appellant. In October 2013, AG tried to end an argu-
ment by going to sleep. Appellant picked her up off the bed, threw her on the
floor, and dragged her out of the house they shared. She went to a neighbor’s
house and called the police, who advised her to move out. After she had done
so, Appellant contacted her and convinced her to return. AG’s mother, RR,
testified that, after Appellant dragged AG out of the house, Appellant called
RR and told her to “come get” AG whom he had “put outside.”
   In January 2015, AG and Appellant were arguing when AG held up her
hand to indicate she was not listening to him. To stop her from ignoring him,
he grabbed her face and squeezed it. After he left the room, she went to the
bedroom of his daughter, SG, in order to use SG’s phone to call the police.
Once AG had SG’s phone, Appellant removed it from AG’s hand by bending
back her thumb and prying it out. SG, who is developmentally disabled, cor-
roborated the incident insofar as it involved her and her phone.
    AG’s testimony about the argument of March 2015 was also corroborated
in part by SG. Appellant and AG were arguing when AG decided to go to SG’s
bedroom. In a futile attempt to prevent AG from waking up SG, who heard a
“loud banging” on her door, Appellant pushed AG out of the house while she
resisted. As noted above, Appellant called the local police, who came to the
house, as did Appellant’s first sergeant, Master Sergeant (MSgt) AA. MSgt


                                      15
                     United States v. Gonzales, No. ACM 39220


AA testified about his observations of the argument’s aftermath, including
AG’s visible injuries, which were also documented in photographs.
    Considering the evidence in the light most favorable to the Prosecution,
we determine that a reasonable factfinder could have found beyond a reason-
able doubt all the essential elements of the offenses involving AG and that
the evidence is legally sufficient to support Appellant’s convictions. Having
weighed the evidence in the record and made allowances for not having per-
sonally observed the witnesses, we also conclude the evidence is factually suf-
ficient and are convinced of Appellant’s guilt beyond a reasonable doubt.
        c. Offenses Involving JH
            i) Rape
    For Appellant to be found guilty of rape of JH prior to 1 October 2007 in
violation of Article 120, UCMJ, the Government had to prove beyond a rea-
sonable doubt the following elements:
  (1) Appellant committed an act of sexual intercourse in June 2006 in
Maryland and in May 2007 in Texas and
   (2) The act of sexual intercourse was done by force and without consent.
See 2005 MCM, pt. IV, ¶ 45.b.(1).
        Force and lack of consent are necessary to the offense. . . . The
        lack of consent required, however, is more than mere lack of
        acquiescence. If a victim in possession of his or her mental fac-
        ulties fails to make lack of consent reasonably manifest by tak-
        ing such measures of resistance as are called for by the circum-
        stances, the inference may be drawn that the victim did con-
        sent. Consent, however, may not be inferred if resistance would
        have been futile, where resistance is overcome by threats of
        death or great bodily harm, or where the victim is unable to re-
        sist because of the lack of mental or physical faculties. In such
        a case there is no consent and the force involved in penetration
        will suffice.
Id. ¶ 45.c.(1)(b).
    Appellant pleaded not guilty to the three charged offenses of rape of JH in
2006, 2007, and 2009 and was acquitted of the last. JH testified about the
three charged offenses of rape and uncharged incidents of physical assault,
the first of which occurred in 1993 after she married Appellant. JH described
their relationship as involving more frequent arguments once Appellant
joined the Air Force in 1995, but, other than the 1993 incident, the abuse was
only verbal until February 2006.



                                       16
                 United States v. Gonzales, No. ACM 39220


    In 2005, JH had taken their two children and left Appellant in Maryland.
They returned to Maryland in February 2006 when JH and Appellant tried to
reconcile. Driving home from the airport, they began an argument that con-
tinued in the house where, according to JH, Appellant choked her until she
vomited blood. Their son called the police, whose appearance stopped the as-
sault. JH testified that she told her family about the incident, and SG testi-
fied that she recalled an argument between her parents that led to her broth-
er calling the police.
    JH described the next uncharged incident of physical assault as occurring
in Texas in April 2006. During an argument outside Appellant’s parents’
house, Appellant pushed JH, “slammed” her head into a car seat, and threw
her car keys at her, hitting her leg and bruising it. She returned to her par-
ents’ house and told her father about the incident, and he took her to the po-
lice to report it. According to JH, Appellant threatened to “take” their chil-
dren from her as he had in the past when she reported or planned to report
his abuse. She went back to the police and told them that she had “made up”
the allegation and her bruise was caused by “rough sex.” As a result, she was
convicted of filing a false police report.
    In June 2006, Appellant was preparing to move from Maryland to Korea
for a change of assignment, so JH returned to Maryland for the move. The
alleged incident of uncharged sexual assault (Appellant’s penetration of JH’s
mouth with his penis without her consent) occurred on the back patio while
the movers were inside the house. That night, JH was getting ready to sleep
on an air mattress in the now-empty house. JH described the rape as follows:
Appellant pushed her onto the mattress. She thought he was going to hit her.
He got on top of her, held her hands above her head, and bound her wrists
together with a scarf. She was trying to get away, crying, and screaming at
him to stop. He blindfolded her by tying another scarf over her eyes and was
cursing at her. He spit in her face, called her names, penetrated her vagina
with his penis, and, after he ejaculated, untied the scarves, turned over, and
went to sleep. She cried for a while but stayed on the mattress. The next day,
they drove to Texas. JH did not tell anybody about the incident and did not
discuss it with Appellant. Called by the Defense, the Air Force Office of Spe-
cial Investigations (AFOSI) agent leading the investigation of the rape allega-
tions, Special Agent SM, testified that AFOSI confirmed Appellant moved in
2006 but did not identify or interview the movers.
   After Appellant moved to Korea, JH visited him there. He physically as-
saulted her twice during the six-week visit.
   In May 2007, Appellant returned to Texas from Korea for a 30-day visit
during which he, JH, and their children stayed at his parents’ house. His
parents hosted a party in his honor. According to JH, Appellant became an-

                                      17
                  United States v. Gonzales, No. ACM 39220


gry because she was talking to JM, a male cousin of Appellant. Appellant and
JH began to argue at the party when he grabbed her arm and “dragged” her
into the bedroom they were sharing. Once in the bedroom, he slapped her,
threw her down on the bed, sat on her, raised her arms above her head, and
bound her wrists together with wire. She was screaming, so he turned on
loud music. There was also music playing at the party. She struggled by kick-
ing her feet but he “ripped off” her clothes, penetrated her vagina with his
penis, and, after he finished, got dressed and returned to the party. She went
to the bathroom to clean the blood that was “all over [her] face” and then re-
turned to the bedroom. She did not tell anybody about the incident and con-
tinued to share the bedroom with Appellant until he returned to Korea.
Called by the Defense, JM and two other male cousins of Appellant remem-
bered parties in Appellant’s honor and at Appellant’s parents’ house during
the relevant time frame. None of the three remembered anything “unusual”
involving JH or any injury to JH. Special Agent SM testified that AFOSI did
not visit Appellant’s parents’ house, interview or attempt to interview Appel-
lant’s parents, or identify or interview any attendees of the party.
    By the time Appellant was reassigned to New Mexico, he and JH had de-
cided to reconcile again, so JH and their two children moved in with Appel-
lant, at which point there was more physical abuse of JH by Appellant. In
January 2009, there was a birthday party for Appellant. During the
nighttime party, JH found Appellant outside with another woman, CW, and
Appellant and JH began to argue. While they argued, the partygoers left and
their daughter, SG, woke up. JH went to lie down with SG in SG’s bedroom
and fell asleep there. JH woke up when Appellant dragged JH into the living
room where he lifted her up with his hands around her throat and slammed
her into the corner. He took her into their bedroom, threw her on the bed,
held her wrists above her head, ripped off her clothes, and forced her to have
sex with him. She was struggling but did not scream so as not to scare SG.
Afterwards, he stayed in the bedroom but she went to the living room where
SG was sitting on the couch. She slept with SG in SG’s bedroom and did not
report the incident. SG testified that she remembered an incident in which
her father pulled her mother out of SG’s bed. SG did not remember seeing her
mother again that night. Called by the Defense, CW’s husband, Technical
Sergeant JW, testified that CW was not and could not have been at the party
in January 2009 because she deployed that month and he did not remember
any such party before she left. Special Agent SM testified that AFOSI did not
visit the house that was the scene of the alleged crime or interview any at-
tendees of the party, including CW. The military judge found Appellant not
guilty of this allegation of raping JH in 2009.
    On the issue of JH’s credibility, she described the circumstances that led
to her conviction for filing a false police report for alleging Appellant’s physi-

                                       18
                  United States v. Gonzales, No. ACM 39220


cal abuse in April 2006. She also explained that, in 2010 while Appellant was
assigned to Honduras, she contacted his chain of command and complained
that he was not providing financial support for his children. When he found
out, he became angry and had her send an email saying that she had lied in
exchange for a financial payment. According to JH, she again lied to Air
Force authorities at Appellant’s behest in 2013. Under investigation for steal-
ing money by claiming more than his lawful entitlement for BAH, Appellant
told her to tell the investigating AFOSI agents that she and their children
were living in Maryland when they had actually been living in Texas. Not on-
ly did JH do as Appellant requested but she talked with AFOSI without re-
porting any instance of physical or sexual abuse.
   JH alleged that Appellant repeatedly threatened to take their two chil-
dren from her. Other than her testimony, there was no evidence that he ever
did so or attempted to do so. JH testified that, in 2013, JH sent SG to live
with Appellant (and AG) because SG was being bullied at the school she at-
tended while living with JH.
   Considering the evidence in the light most favorable to the Prosecution,
we determine that a reasonable factfinder could have found all the essential
elements of the offenses involving JH beyond a reasonable doubt and that the
evidence is legally sufficient to support Appellant’s convictions. However, we
ourselves are not convinced beyond a reasonable doubt and conclude the evi-
dence is not factually sufficient.
    JH had a significant credibility issue that was demonstrated by her con-
viction for filing a false police report as well as her two admissions to lying to
Air Force officials when she either lied to protect a monetary benefit (finan-
cial support for dependents or BAH) or lied about lying.
    Notwithstanding the issue of JH’s credibility, we do not doubt that Appel-
lant’s pattern of physical abuse of his intimate partners began with JH.
While JH did not report most of Appellant’s physical abuse until 2015, there
was some evidence to corroborate that Appellant had a history of battering
JH. JH’s allegations of physical abuse were also more believable because they
included acknowledgements that JH was sometimes the instigator or the ini-
tial assailant. Additionally, the instances of physical abuse by Appellant of
JH fit the larger pattern of physical abuse by Appellant of his intimate part-
ners, including CP and AG. All three women engaged in relationships with
Appellant in which he and his intimate partner employed verbal and physical
abuse but in which both people chose to stay for at least several years.
    The clear pattern of Appellant’s physical abuse of his intimate partners
also makes it more apparent that there was no similar pattern of sexual
abuse, especially in the context of frequent arguments that included verbal


                                       19
                   United States v. Gonzales, No. ACM 39220


abuse and led to physical abuse. Despite the multiple proven incidents when
an argument between Appellant and AG led to physical violence, AG made
only one allegation of rape and described a single instance of sexual inter-
course that undeniably involved force and was done without consent in that
Appellant used his greater weight and strength to hold down AG and pene-
trate her vagina with his penis. However, Appellant did not engage in physi-
cal violence, meaning he did not hit, bite, or choke AG; Appellant was not act-
ing in anger; and the rape did not occur in the context of an argument. And
even though there was more than one proven incident of physical violence by
Appellant against CP during an argument, CP made no allegation of sexual
violence.
    The evidence did not support JH’s claim that Appellant raped her in 2009
during an argument that began when JH found Appellant with CW. After
testimony that CW was deployed at the relevant time, Appellant was found
not guilty of the charge. Although there was not similar evidence to contra-
dict a material fact of JH’s accounts of rape in 2006 and 2007, we find the ev-
idence does not support those claims because the Government did not present
sufficient evidence to prove the offenses.7 Regarding the rape during the par-
ty in 2007, we considered that not even the person who was the alleged cause
of that night’s argument, JM, remembered talking to JH, noticing anything
unusual with JH, or observing any injury to JH. Not only did the Govern-
ment not call (or even interview) Appellant’s parents, who would have seen
JH the morning after Appellant “backhanded” her so hard her face was
bloody, but the Government did not call JH’s parents or sister, who were liv-
ing in the same small town and may have observed evidence of such a signifi-
cant injury. Regarding the rape during the move in 2006, we considered that
the Government did not call (or even identify) the movers who JH believed
saw and heard the nonconsensual oral sex earlier in the day. The Govern-
ment also did not call any neighbor who lived in an attached rowhouse and
may have observed something relevant to either the sexual assault or the


7 We note the irony of Appellee’s response to one of the Grostefon issues in which Ap-
pellee argues the investigation of JH’s allegations of rape was sufficient considering
that the crimes being investigated “had occurred years prior.” That argument under-
lies a point relevant here: a “sufficient” investigation of a crime that occurred years
before could render the case insufficient at trial when the Government bears the bur-
den of proof beyond a reasonable doubt. Although the charges of rape of JH in 2006
and 2007 are not barred by the statute of limitations, the substantive legal justifica-
tion for a statute of limitations provides context for this case, and the near decade-
long temporal distance between the offenses and their investigation and prosecution
significantly impaired not only the Defense but also the Government.




                                          20
                  United States v. Gonzales, No. ACM 39220


rape JH alleged as occurring that day or may have remembered something of
the February 2006 physical assault that ended when the police responded.
    The two charged rapes by Appellant of JH in 2006 and 2007 fail the test
for factual sufficiency. Having weighed the evidence in the record and made
allowances for not having personally observed the witnesses, we are not con-
vinced of Appellant’s guilt beyond a reasonable doubt. Even when we take
into account that the military judge saw and heard the witnesses, especially
JH, we assess that the evidence in the record is insufficient to affirm Appel-
lant’s convictions for raping JH in 2006 and 2007.
           ii) Sentence Reassessment
    Because we set aside the findings of guilty to Specifications 2 and 3 of
Charge III, we consider whether we can reassess the sentence. We have
“broad discretion” first to decide whether to reassess a sentence and then to
arrive at a reassessed sentence. United States v. Winckelmann, 73 M.J. 11, 12
(C.A.A.F. 2013). To determine whether to reassess a sentence or order a re-
hearing, we consider the totality of the circumstances, including the following
factors: (1) “Dramatic changes in the penalty landscape and exposure;” (2)
“Whether an appellant chose sentencing by members or a military judge
alone;” (3) “Whether the nature of the remaining offenses capture[s] the gra-
vamen of criminal conduct included within the original offenses and . . .
whether significant or aggravating circumstances addressed at the court-
martial remain admissible and relevant to the remaining offenses;” and (4)
“Whether the remaining offenses are of the type that judges of the courts of
criminal appeals should have the experience and familiarity with to reliably
determine what sentence would have been imposed at trial.” Id. at 15–16 (ci-
tations omitted). If we can determine to our satisfaction that, “absent any er-
ror, 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.M.A. 1986).
    We have considered the totality of the circumstances and find that the
factors weigh in favor of reassessment rather than rehearing. Although we
are setting aside significant offenses, specifically, two specifications of rape,
our decision does not change the penalty landscape or Appellant’s exposure.
He remains convicted of one specification of rape, and rape remains the most
serious offense of which he was found guilty. His maximum punishment still
includes confinement for life without eligibility for parole and a mandatory
minimum of dishonorable discharge. Furthermore, Appellant chose sentenc-
ing by a military judge alone. We find that the nature of the remaining nu-
merous offenses capture the gravamen of criminal conduct included with the
original offenses. We further find that significant and aggravating circum-
stances addressed at the court-martial, in particular, Appellant’s pattern of

                                        21
                  United States v. Gonzales, No. ACM 39220


physical abuse of his intimate partners, remain admissible and relevant to
the remaining offenses. In addition, the remaining offenses, which range from
rape to willful dereliction of duty, are of the type with which we have the ex-
perience and familiarity to reliably determine what sentence would have
been imposed at trial. Therefore, we reassess a sentence of a dishonorable
discharge, confinement for 20 years, and reduction to the grade of E-1.
D. Pretrial Confinement as Illegal Pretrial Punishment
    Appellant asserts, as he did at trial, that he should receive credit for ille-
gal pretrial punishment, specifically, the 374 days of pretrial confinement at
the Lackland military confinement facility, where he was classified and
treated as a “maximum security” detainee. We agree in part.
   1. Background
   After the incident between Appellant and AG in March 2015, Appellant
was restricted to Laughlin AFB for five days as of 13 March 2015. By the
time Appellant’s commander received information that indicated Appellant
had not remained on base during the period of restriction, Appellant and SG
had moved back into Appellant’s off-base house so that SG could get to school.
Appellant’s commander reinstated the restriction but adjusted it, and, for 55
days as of 27 March 2015, Appellant was restricted to base during duty
hours, Monday through Friday. On 18 August 2015, after AG reported that
Appellant had raped her in June 2015, he was placed in pretrial confinement.
He was confined first in the Val Verde County (Texas) Confinement Facility
from August 2015 through October 2015 and then in the Lackland military
confinement facility. He remained in pretrial confinement for a total of 437
days, 63 in the Val Verde County facility and 374 in the Lackland facility,
until he was sentenced on 29 October 2016. The military judge awarded 437
days of pretrial confinement credit but no credit for illegal pretrial punish-
ment.
   2. Law
       Our determination of whether [an appellant] endured unlawful
       pretrial punishment involves both constitutional and statutory
       considerations. We defer to the findings of fact by the military
       judge where those findings are not clearly erroneous. However,
       our application of those facts to the constitutional and statuto-
       ry considerations, as well as any determination of whether [an
       appellant] is entitled to credit for unlawful pretrial punishment
       involve independent, de novo review.
United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005) (citations omitted). In
King, the CAAF expounded on Article 13, UCMJ:



                                       22
                 United States v. Gonzales, No. ACM 39220


       The first prohibition of Article 13 involves a purpose or intent
       to punish . . . and whether such purposes are “reasonably relat-
       ed to a legitimate governmental objective.” The second prohibi-
       tion of Article 13 prevents imposing unduly rigorous circum-
       stances during pretrial detention. Conditions that are suffi-
       ciently egregious may give rise to a permissive inference that
       an accused is being punished, or the conditions may be so ex-
       cessive as to constitute punishment.
Id. at 227–28 (quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979)) (additional
citations omitted).
   Article 13, UCMJ, 10 U.S.C. § 813, prohibits (1) pretrial punishment or
penalty other than pretrial confinement and (2) pretrial confinement “any
more rigorous than the circumstances required to insure [the confinee’s]
presence” other than minor punishment for infractions of discipline while
confined. R.C.M. 305(k) allows a military judge to “order additional credit for
each day of pretrial confinement that involves an abuse of discretion or unu-
sually harsh circumstances.”
   3. Discussion
    On 21 December 2015, the Defense first moved for relief for illegal pretri-
al punishment based on the conditions of Appellant’s pretrial confinement.
His initial and subsequent motions were framed as a two-fold request for (1)
release and (2) credit. On 10 March 2016, the noncommissioned officer in
charge (NCOIC) of the Lackland facility provided telephonic testimony on the
issue. In a written ruling, the military judge found the following:
      On 20 October 2015, Appellant was transferred to the Lackland con-
       finement facility where he is a maximum security detainee.
      Appellant is a maximum security detainee solely because of his pretri-
       al status and in accordance with Air Force Instruction (AFI) 31–105,
       Air Force Corrections Systems (15 Jun. 2015). As a maximum security
       confinee, he is not permitted to mingle with other confinees or access
       the open bay area and is normally segregated.
      He is confined to his cell 24 hours a day except for one hour of physical
       conditioning three days a week. He cannot see outside. His meals are
       brought to his cell. He has at least two and a half hours of unrestricted
       free time every day. He has access to a radio on a rotating basis and
       opportunities to watch movies. He is allowed to have visitors, make
       phone calls, and speak with staff members. When he leaves the facility
       for an appointment, he is shackled and escorted, including by at least
       one armed guard, and remains shackled unless medical personnel re-
       quest otherwise during a medical appointment.

                                      23
                  United States v. Gonzales, No. ACM 39220


      AFI 31–105 requires all pretrial detainees to be classified as maxi-
       mum security and dictates the conditions of maximum security. Appel-
       lant is treated the same as other pretrial detainees and maximum se-
       curity prisoners. Although segregation can be disciplinary or adminis-
       trative, Appellant is segregated solely because of his pretrial status.
       He is not in solitary confinement, which is disciplinary segregation
       and requires a prisoner to remain in his cell 100 percent of the time.
      The NCOIC was not aware of any formal grievance filed by Appellant
       about the confinement conditions, but Appellant had complained
       about his mattress and he was provided an additional one.
    The military judge concluded (1) Appellant had not been punished prior to
trial and there was no evidence of an intent to punish and (2) the conditions
of his confinement were not more rigorous than necessary and served a legit-
imate government interest of compliance with Air Force regulation. The mili-
tary judge therefore denied the Defense motion for credit for illegal pretrial
punishment beyond the day-for-day credit Appellant would receive for pretri-
al confinement. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984).
    The military judge’s findings of fact are not clearly erroneous, and, while
we adopt them, we considered additional information provided by the NCOIC
of the Lackland facility. Appellant could have been housed by himself in an
open bay except those bays were occupied. As a result and because he was a
maximum security detainee, he was kept physically segregated from all other
detainees and housed in the segregation unit, even though he was not under
administrative or disciplinary segregation. Unlike someone in administrative
segregation, he was allowed to make personal phone calls, and, unlike some-
one in disciplinary segregation, he was allowed to leave his cell at specific
times and for specific reasons, such as physical conditioning, and to interact
with certain individuals, including all facility staff but no other detainees.
While Appellant had “unrestricted free time” from 1830 hours Monday
through Friday and from 1000 hours Saturday and Sunday until 2100 or
2200 hours, he still had to spend that time in his cell. Testifying again in Au-
gust 2016, the NCOIC described Appellant’s four documented minor infrac-
tions as a “very low number” and his behavior as overall “very positive.”
   We are left facing the same question the military judge asked:
       [W]hat it comes down to is -- am I supposed to just give defer-
       ence to the Air Force who has decided this policy decision [to
       classify Appellant as maximum security only because he is a




                                      24
                   United States v. Gonzales, No. ACM 39220


       pretrial detainee and decide it] makes sense in a confinement
       setting and basically just defer to their thoughts on the matter?
We make an independent determination and decline to grant such deference.8
    In King, the appellant was an Air Force member who was detained in pre-
trial confinement at Barksdale AFB under conditions required by Air Force
regulation. 61 M.J. at 226–28. The CAAF did not find that King’s “maximum
security” classification gave rise to an inference of an intent to punish; that
the conditions of his pretrial confinement resulting from the classification
were so excessive as to amount to punishment; or that his denied requests for
release or downgraded classification or commingling with a post-trial inmate
violated Article 13, UCMJ, or constituted punishment or unnecessarily rigor-
ous conditions warranting additional credit. Id. at 228.
       However, we find that King was subjected to punishment dur-
       ing the two weeks he was in segregation . . . . in a six-by-six,
       windowless cell. . . . Placing King in a segregated environment
       with all the attributes of severe restraint and discipline, with-
       out an individualized demonstration of cause in the record, was
       so excessive as to be punishment and is not justified by the
       Barksdale AFB confinement facility space limitations.
Id. at 228–29 (citation omitted). As a result, King was awarded three days of
administrative credit for each day of solitary segregation. Id. at 229.
    In Appellant’s case, we agree with the military judge that there was no
purpose or intent to punish Appellant and that the conditions of Appellant’s
pretrial confinement related to a legitimate governmental objective of regula-
tory compliance. However, Article 13, UCMJ, has two prohibitions. In light of
the second—the prohibition of pretrial confinement more rigorous than re-
quired to insure the confinee’s presence—and King, we assess the conditions
of Appellant’s pretrial confinement at Lackland—although not solitary con-
finement, physical segregation in a cell for 23 or 24 hours a day without an
individualized demonstration of cause—and deem them more rigorous than
the circumstances required to insure Appellant’s presence and so excessive as
to be punishment. Thus, we award 300 days of credit for illegal pretrial pun-


8Military judges need no longer answer the question because AFI 31–105 has been
amended: “Pretrial detainees are immediately classified as maximum custody for 72
hours or first duty day (whichever is later). This time is their acclimation period.”
AFI 31–105, ¶ 5.4.5 (15 Jun. 2015, as amended by Air Force Guidance Memorandum
2018–01, 26 Apr. 18). After the acclimation period, the detainee is classified as medi-
um or maximum custody. Id. ¶ 5.4.5–5.4.5.1.




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                   United States v. Gonzales, No. ACM 39220


ishment for Appellant’s period of pretrial confinement at Lackland from 21
December 2015 when Appellant first moved for relief until 29 October 2016
when his sentence was adjudged, less the 13 days of hearings during that pe-
riod.9
E. Error in Staff Judge Advocate’s Recommendation
    Appellant claims that the failure of the SJAR to describe correctly his pre-
trial confinement warrants relief in the form of new post-trial processing. We
are not persuaded.
    1. Additional Background
    The SJAR itself did not say anything about Appellant’s pretrial confine-
ment. The Report of Result of Trial (RRT) attached to the SJAR indicated
that Appellant was credited 437 days for pretrial confinement. The Personal
Data Sheet (PDS) attached to the SJAR was a copy of the PDS admitted at
trial, described “Nature of Pretrial Restraint,” and included “Military Con-
finement, 18 Aug – Current”.
    The clemency submission from the trial defense counsel addressed “legal
issues” in Appellant’s case and included the denial of “any relief for unlawful
pretrial punishment that [Appellant] had to endure while in pretrial con-
finement” but did not elaborate further. At the end of Appellant’s request for
clemency, he referenced his pretrial confinement in the context of asking the
convening authority to set aside his convictions for offenses involving JH and
wrote, “I have not caused any issues while at confinement even though I was
being held in solitary confinement before I had a trial.” Otherwise, both doc-
uments consisted almost entirely of discussing the offenses involving JH.



9 Cf. United States v. Jimenez, No. ACM 39200, 2018 CCA LEXIS 304, at *30–33
(A.F. Ct. Crim. App. 20 Jun. 2018) (unpub. op.) (the military judge awarded 200 days
of credit for illegal pretrial punishment because the appellant was held in pretrial
confinement under maximum security conditions without the opportunity for reas-
sessment; without stating whether it agreed with the military judge’s findings, the
court found the award a sufficient remedy and declined to grant further relief), rev.
denied, 78 M.J. 121 (C.A.A.F. 2018); United States v. Catano, No. ACM 39092, 2018
CCA LEXIS 1, at *14–16 (A.F. Ct. Crim. App. 3 Jan. 2018) (unpub. op.) (the military
judge granted 277 days of credit for illegal pretrial punishment because the appellant
was arbitrarily held in maximum custody and unnecessary segregation while in pre-
trial confinement but declined to apply the excess confinement credit to the bad-
conduct discharge; the court agreed, noting that setting aside the punitive discharge
would be disproportionate to the harm suffered by Appellant), rev. denied, 77 M.J.
421 (C.A.A.F. 2018).




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                  United States v. Gonzales, No. ACM 39220


    The addendum to the SJAR listed the seven errors the Defense alleged
were committed by the military judge, ending with “denying relief for unlaw-
ful pretrial punishment.” The SJA indicated he had considered the alleged
errors and found them to be without merit. He recommended the convening
authority approve the findings and sentence as adjudged.
   The convening authority approved the adjudged findings and sentence.
   2. Law
    The proper completion of post-trial processing is a question of law the
court reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)
(citation omitted). Failure to comment in a timely manner on matters in the
SJAR or matters attached to the SJAR waives any later claim of error in the
absence of plain error. R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 435,
436 (C.A.A.F. 2005). Analyzing for plain error, we assess whether “(1) there
was an error; (2) it was plain or obvious; and (3) the error materially preju-
diced a substantial right.” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. at 65)
(additional citation omitted). “To meet this burden in the context of a post-
trial recommendation error . . . an appellant must make ‘some colorable
showing of possible prejudice.’” Id. at 436–37 (quoting Kho, 54 M.J. at 65).
“The threshold is low, but there must be some colorable showing of possible
prejudice. . . . in terms of how the [error] potentially affected an appellant’s
opportunity for clemency.” Id. at 437 (citation omitted).
   3. Discussion
    Appellant points to the PDS language of “Military Confinement, 18 Aug –
Current” as error but concedes that he made no such claim during the post-
trial processing of his case. By failing to comment on the now-claimed error in
a timely manner, he forfeited the issue and, consequently, we analyze it for
plain error. See Scalo, 60 M.J. at 436.
   First, we agree with Appellee that there was no error. Article 60(e),
UCMJ, 10 U.S.C. § 860(e), creates the requirement for an SJAR, and R.C.M.
1106(d)(3) describes its required contents, including “the report of results of
the trial, setting forth the findings, sentence, and confinement credit to be
applied.” These requirements were satisfied in Appellant’s case.
    Secondly, if there was error with regard to the PDS, it was not obvious.
The PDS is not per se required by Article 60, UCMJ, but R.C.M. 1106(d)(1)
and R.C.M. 1107(b)(3)(B) both indicate that the convening authority may
consider the “personnel records of the accused.” Furthermore, it is well estab-
lished Air Force practice that the PDS is attached to the SJAR and that the
PDS attached is the PDS admitted at trial. See AFI 51-201, Administration of
Military Justice, ¶ 9.16 (6 Jun. 2013). Attached to the SJAR in Appellant’s
case was the PDS dated 24 October 2016 and admitted at trial. It indicated

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                 United States v. Gonzales, No. ACM 39220


that Appellant had been in “Military Confinement” from “18 Aug” to “Cur-
rent.” When read in conjunction with the immediately preceding PDS refer-
ences to “Restriction In Lieu of Arrest, 13 Mar 2015, Laughlin AFB, TX, 5
days” and “Conditions on Liberty, 27 Mar 2015, Laughlin AFB, TX, 55 days”
and the RRT note of 437 days of pretrial confinement credit, the “18 Aug –
Current” period of “Military Confinement” is more obviously understood to
refer to 18 August 2015 than 18 August 2016. In addition, “Military Con-
finement” was not obviously wrong. Although Appellant was initially held at
the civilian Val Verde County facility, his pretrial confinement was ordered
by military authority based on the military’s jurisdiction of Appellant and the
violations of the UCMJ he was suspected of committing.
    Finally, even if we assume arguendo that the PDS language of “Military
Confinement, 18 Aug – Current” was error and the error was obvious, it did
not materially prejudice a substantial right of Appellant, specifically, his
right to have the convening authority consider his clemency request. It is
documented in the record that the convening authority considered Appel-
lant’s request for clemency, which consisted almost entirely of a request to
disapprove the findings of guilt of the offenses involving JH. Appellant did
not ask for a reduction in confinement because of the length and location of
his pretrial confinement or for any other reason. Still, the SJA duly informed
the convening authority that he could not only disapprove the findings of
guilt for all offenses but also “disapprove, commute, or suspend in whole or in
part confinement, forfeitures, and reduction in rank.” The convening authori-
ty chose not to do so. Therefore, we conclude there was no plain error to over-
come Appellant’s waiver of any SJAR issue and decline to grant relief.
F. Timeliness of Appellate Review
    We review de novo whether an appellant has been denied the right to due
process and a speedy post-trial review and appeal. United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006). A presumption of unreasonable delay arises
when appellate review is not completed and a decision is not rendered within
18 months of the case being docketed before the court. Id. at 142. When a
case is not completed within 18 months, such a delay is presumptively unrea-
sonable and triggers an analysis of the four factors laid out in Barker v.
Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of the right to timely review and
appeal; and (4) prejudice.” Moreno, 63 M.J. at 135.
    Appellant’s case was originally docketed with the court on 15 March 2017.
The delay in rendering this decision after 15 September 2018 is presumptive-
ly unreasonable. However, we determine there has been no violation of Ap-
pellant’s right to due process and a speedy post-trial review and appeal.



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                   United States v. Gonzales, No. ACM 39220


    Analyzing the first two Barker factors, we find the length of the delay of
five months is significant. The reasons for the delay include the size of the
record of Appellant’s trial—the 27 volumes include a trial transcript of almost
1,800 pages—and the time required for Appellant to file his original five as-
signments of error on 7 March 2018. The Government filed its answer on 5
April 2018. On 9 July 2018, Appellant submitted a motion to suspend the
court’s rules “to correct errors that have occurred” and informed the court
that he had released his civilian appellate defense counsel in June 2018 and
his original military appellate defense counsel in July 2018. The court grant-
ed the motion and allowed the substitution of a new military appellate de-
fense counsel, who submitted on Appellant’s behalf supplemental assign-
ments of error, including nine not previously raised, on 30 August 2018. The
Government answered on 24 October 2018. The court is issuing its opinion
almost four months after the Government’s answer to Appellant’s supple-
mental assignments of error.
   The third Barker factor was resolved on 3 July 2018. Appellant waived his
“Moreno rights to a speedy appeal” with the understanding that, if the court
granted his request to file supplemental assignments of error, the time to
process his appeal would be “significantly extend[ed].”
    We find that Appellant has not suffered prejudice from the delay in the
appellate review of his case. Appellant began his 35 years of confinement on
29 October 2016, and the court is reassessing the sentence to 20 years of con-
finement. Moreover, he waived his right to a speedy (as defined by Moreno)
review. With five additional months for appellate review, Appellant has re-
ceived the assistance of a third appellate defense counsel and filed nine more
assignments of error, which have been answered by the Government and con-
sidered by the court.10
   Finding no Barker prejudice, we also find the delay is not so egregious
that it adversely affects the public’s perception of the fairness and integrity of
the military justice system. As a result, there is no due process violation. See
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In addition, we de-
termine that, even in the absence of a due process violation, the delay does
not merit relief. See United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F.


10 Our declining to grant relief should not be read as approval of the action or, more
aptly, inaction by Appellant’s original civilian and military appellate defense counsel
to keep him informed about his appeal and to file Grostefon issues on his behalf. See
Air Force Rules of Professional Conduct, Rule 1.4 (11 Dec. 2018); A.F. CT. CRIM. APP.
R. 15.2.




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                 United States v. Gonzales, No. ACM 39220


2002). Applying the factors articulated in United States v. Gay, 74 M.J. 736,
744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we find the
delay in completing appellate review justified and relief based on the delay
unwarranted.

                              III. CONCLUSION
    The findings of guilty to Specifications 2 and 3 of Charge III are SET
ASIDE and Specifications 2 and 3 of Charge III are DISMISSED WITH
PREJUDICE. We reassess the sentence to a dishonorable discharge, con-
finement for 20 years, and reduction to the grade of E-1. We also award Ap-
pellant 300 days of credit for illegal pretrial punishment. The remaining find-
ings and the sentence as reassessed are correct in law and fact, and no other
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66, UCMJ, 10 U.S.C. §§ 859(a), 866. Accordingly, the re-
maining findings and sentence as reassessed are AFFIRMED.


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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