             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                             UNITED STATES

                                                         v.

                                Staff Sergeant ROBERT A. HUDSON
                                        United States Air Force

                                                 ACM S32167

                                              9 September 2014

            Sentence adjudged 25 April 2013 by SPCM convened at Joint Base San
            Antonio-Lackland, Texas. Military Judge: Donald R. Eller (sitting alone).

            Approved Sentence: Bad-conduct discharge, confinement for 5 months,
            and reduction to the grade of E-2.

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

            Appellate Counsel for the United States: Major Roberto Ramirez; and
            Gerald R. Bruce, Esquire.

                                                      Before

                                   ALLRED, HECKER, and TELLER
                                      Appellate Military Judges

                                        OPINION OF THE COURT

                        This opinion is subject to editorial correction before final release.



TELLER, Judge:

       At a special court-martial comprised of a military judge sitting alone, the appellant
was convicted, pursuant to his pleas, of two specifications of violating a lawful general
regulation, eight specifications of maltreatment, one specification of false official
statement, one specification of adultery, and two specifications of obstruction of justice,
in violation of Articles 92, 93, 107, and 134, UCMJ, 10 U.S.C. §§ 892, 893, 907, 934.1

1
  The Government withdrew and dismissed one specification each of maltreatment and assault prior to trial and,
after announcement of findings on the offenses to which appellant pled guilty, dismissed eight specifications of
assault.
The court sentenced him to a bad-conduct discharge, confinement for five months, and
reduction to E-2. The convening authority approved the sentence as adjudged.

       The appellant now raises three issues on appeal: (1) the two specifications of
violating a lawful order are multiplicious; (2) the appellant’s post-trial rights were
violated by a delay of 103 days between trial and convening authority action; and (3) the
appellant’s sentence was inappropriately severe.2 Finding no error that materially
prejudices a substantial right of the appellant, we affirm.

                                                     Background

       The appellant was a military training instructor (MTI) who engaged in a prohibited
relationship with one trainee and maltreated eight other trainees by exposing them to full-
strength bleach fumes in an unventilated latrine. After an investigation into the
unprofessional relationship was initiated, the appellant obstructed justice by concealing
evidence and advising Airman First Class (A1C) RD to lie to investigators and destroy
evidence.

        In July or September of 2011, the appellant initiated a sexual relationship with
then-trainee (later A1C) RD while she was attending basic training at Joint Base
San Antonio-Lackland. A1C RD was assigned to the “sister flight” of the flight the
appellant supervised. A1C RD was directed by her primary MTI to find the appellant in
order to get sunblock from the supply cabinet. While alone in the dorms, the appellant
kissed A1C RD. The kiss lasted for a few seconds, after which both A1C RD and the
appellant returned to their duties. Approximately two weeks later, the appellant tasked
A1C RD to collect physical training profile information from the other trainees in her
flight and bring it to him in another dorm room. A1C RD complied with his instructions.
Once they were alone, the appellant and A1C RD engaged in sexual intercourse.

      After A1C RD graduated from basic training on 22 September 2011, the appellant
maintained communication with her while she was assigned to technical training at
nearby Fort Sam Houston. Between then and 3 December 2011, the appellant and
A1C RD communicated by cell phone, text message, and in person. On two occasions,
they met at a hotel and had sexual intercourse. For this course of conduct with A1C RD,
the appellant was convicted of adultery and two specifications of violating a lawful
general regulation.

        The maltreatment incident arose in September 2012, after the appellant was
dissatisfied with the cleanliness of his flight’s latrine. The appellant doused the toilets
and floors of the latrine with two gallons of bleach and instructed eight trainees
responsible for the latrine to clean it up. While cleaning the latrine, some of the trainees
began experiencing adverse effects such as coughing, vomiting, dry heaving, and a

2
    The third issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                            2                                      ACM S32167
bleeding nose from the bleach fumes. One trainee’s vomiting was so severe it caused
hemorrhaging in his eyes. Despite the visible adverse effects, the appellant continued to
order them back into the latrine until it was clean. For this incident, the appellant was
convicted of eight specifications of maltreatment, one for each trainee exposed to the
bleach fumes.3

        In October 2012, the Air Force Office of Special Investigations (AFOSI) initiated
an investigation into the unprofessional relationship between the appellant and A1C RD.
After interviewing A1C RD, AFOSI agents initiated a pretext phone call between
A1C RD and the appellant. During the call, A1C RD told the appellant she was about to
be interviewed by AFOSI. The appellant told her to tell AFOSI that they hadn’t done
anything. When A1C RD asked specifically about pictures they had exchanged via text
message, the appellant told her to delete them and that she should delete all of their
messages on Facebook. AFOSI later got a search authorization for the appellant’s cell
phone. At AFOSI’s request, the appellant was ordered to report to his superintendent’s
office. When the appellant arrived, AFOSI presented the appellant with the search
authorization for his cell phone. The appellant, who had anticipated the seizure of his
phone, falsely told the agents he had lost it. Instead, he had deliberately concealed the
phone in order to impede the investigation. For this misconduct, the appellant was
convicted of making a false official statement and two specifications of obstructing
justice.

                                             Multiplicity

         The appellant was convicted of violating a lawful general regulation by
“wrongfully conducting a personal relationship” with A1C RD while she was a trainee.
He was also convicted of a second specification covering the same time frame that
alleged he “wrongfully conduct[ed] a sexual relationship” with her. The appellant now
contends “unconstitutional multiplicity” exists because a “consensual sexual relationship
. . . is necessarily also a personal relationship,” making the sexual specification a lesser
included offense of “personal relationship” specification.4 We find the appellant
expressly waived this issue at trial.

3
     The appellant was also charged with eight specifications of assault for this incident, but those
specifications were dismissed.
4
    Both specifications refer to the same paragraph of an Air Force Instruction prohibiting personal or
intimate relationships between MTIs and trainees, including recent graduates who are still in technical
training. Specifically, Air Education and Training Command Instruction 36-2909, Professional and
Unprofessional Relationships, ¶ 4.3.3 (2 March 2007) states that faculty and staff will:

       Not establish, develop, attempt to develop, or conduct a personal, intimate, or sexual
       relationship with a trainee, cadet, student, or member of the immediate family of a
       trainee, cadet, or student. This includes, but is not limited to, dating, handholding,
       kissing, embracing, caressing, and engaging in sexual activities. Prohibited personal,
       intimate, or sexual relationships include unprofessional relationships conducted in person


                                                   3                                        ACM S32167
        As part of his pretrial agreement (PTA), the appellant in this case agreed to waive
all waivable motions. Such a provision normally bars an appellant from asserting claims
of multiplicity on appeal. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)
(stating that when an appellant “intentionally waives a known right at trial, it is
extinguished and may not be raised on appeal.”) In Gladue, the Court expressly
considered the difference between a waiver as part of a PTA and waiver (or, more
specifically, forfeiture) as a result of an unconditional guilty plea alone. The Court held
that an appellant would be entitled to appellate relief if the specifications are facially
duplicative even if he failed to raise a multiplicity claim at trial. Id. at 314 (citing
United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997)). The Gladue court then went on
to cite a caveat in Lloyd: “Express waiver or voluntary consent, however, will foreclose
even this limited form of inquiry.” Id. (citing Lloyd, 46 M.J. at 23) (internal quotation
marks omitted).

       Here, the military judge ensured the appellant was aware how the two
specifications related to each other, as he specifically told the appellant:

        [W]e have to kind of talk about these [two specifications] somewhat
        distinctly, because under the law, there is a general proposition the
        government should not usually be able to secure . . . two convictions for
        essentially the same behavior . . . . So as we talk about [specification one],
        we are talking about a personal relationship . . . that doesn’t include sex.
        Then we will talk about the sexual nature of the relationship . . . .

      The appellant acknowledged his understanding of this concept and then engaged
in a guilty plea inquiry that separated his sexual conduct with A1C RD from his
non-sexual contact with her.

       Furthermore, the military judge conducted a colloquy with the appellant to make
sure he understood the effect of the waiver provision of his PTA, including its effect on
appellate review. When asked what motions the defense envisioned raising absent a
waiver, the appellant’s trial defense counsel cited multiplicity as it related to the
maltreatment and assault charges. The military judge referenced the eight maltreatment
specifications and advised the appellant:

        MJ:     One of the things [trial defense counsel] could have done is he
                could have said, “Hey, judge, that’s not fair. You know, the

        and/or via cards, letters, e-mails, telephone calls, instant messaging, video, photographs,
        or any other means of communication.

         Paragraph 4.3.1.1 establishes an ongoing duty to refrain from such relationships “throughout the
entire period of training or instruction received by trainees and cadets prior to reporting to their permanent
duty stations of assignment.”



                                                      4                                         ACM S32167
             government is just piling on at this stage and what they should do
             is, you should combine them all together in one so that if Sergeant
             Hudson is found guilty, he is really found guilty of one crime, as
             opposed to eight different crimes. That’s just not right.”

             But, because you gave up that opportunity to make that motion, I
             don’t get a chance to rule on it and so you don’t get that sort of
             relief. Do you understand that?

      APP: Yes, sir.

      MJ:    Based on everything I have talked to you about and the things that
             [trial defense counsel] has explained to you, do you still want to
             give up making motions in order to get the benefit of your Pretrial
             Agreement?

      DC:    May I have a moment?

      MJ:    Sure.

      [Defense counsel and accused consulted.]

      APP: Yes, sir.

While that portion of the colloquy focused on the maltreatment and assault charges, the
military judge clearly conveyed that the appellant was giving up the opportunity to
contest on appeal whether the Government was “piling on” in its formulation of the
charges.

       In this case, the military judge’s inquiry explained to the appellant how the two
Article 92, UCMJ, specifications were distinct from each other and covered
non-duplicative conduct by the appellant. It also established that the waiver provision of
the PTA was knowing and intelligent. The appellant received the benefit of that PTA in
the form of special court-martial limits on punishment. Therefore, multiplicity of the
charges was a matter considered and discussed during the providence inquiry. We find
no reason on the facts of this case to second-guess the appellant’s PTA and grant relief on
a theory explicitly waived at trial. We find the appellant expressly waived any claim of
multiplicity as to these specifications and extinguished his right to raise that on appeal.
See Gladue, 67 M.J. at 314.

                                     Post-trial Delay

      This Court reviews “de novo claims that an appellant has been denied the due
process right to a speedy post-trial review and appeal.” United States v. Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006) (citing United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.


                                             5                                  ACM S32167
2003)). The appellant concedes that the 103 days that elapsed between trial and
convening authority action is not presumptively unreasonable under Moreno, but argues
that this Court should find it unreasonable based on the circumstances, and asks us to set
aside his bad-conduct discharge.

       The appellant specifically asserts that the post-trial delay was unreasonable
because it denied him the possibility of entering the Return to Duty Program (RTDP).
The appellant’s trial concluded on 25 April 2013. According to the appellant’s brief, the
RTDP stopped accepting new applicants on 31 May 2013 because the Secretary of the
Air Force discontinued the program. The appellant does not provide any evidence,
however, that convening authority action was required before he could apply for the
RTDP. See Air Force Instruction 31-205, The Air Force Corrections System, ¶ 11.6.2.1
(7 April 2004) (“[E]ligible inmates regardless of length of confinement may apply to
their [convening authority] for entry into the RTDP as part of their clemency request
following courts-martial and prior to [convening authority] action.”) (emphasis added).

        Given this lack of evidence that the timing of the preparation of the record of trial
affected the appellant’s ability to apply to the program, we decline to provide him relief
on appeal. Since we find that the length of the delay in this case was neither
presumptively unreasonable nor unreasonable under the circumstances, we do not
proceed to the full four-factor due process analysis for unreasonable delay. See
United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004) (stating that unless there is a
facially unreasonable delay, it is unnecessary to consider four factors). We are
also mindful of our authority to grant relief under United States v. Tardif, 57 M.J. 219
(C.A.A.F. 2002), and Article 66(c), UCMJ, 10 U.S.C. § 866(c), even in the absence of
prejudice. We decline to do so here. We see nothing about the post-trial processing of
this case that renders the appellant’s sentence inappropriate or provides any reason to
grant relief.

                                 Sentence Appropriateness

       The appellant challenges the appropriateness of his sentence, asking that this Court
set aside the bad-conduct discharge. 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,
145–46 (C.A.A.F. 2010).


                                              6                                  ACM S32167
        The appellant’s adjudged and approved sentence is appropriate. His offenses
undermined the crucial acculturation process that sets the stage for a new inductee’s
entire career. His disregard of his own flight’s health and safety by continuing to expose
eight new inductees to bleach fumes caused visible physical adverse reactions that the
appellant ignored. Furthermore, the appellant admitted during the providence inquiry
that other trainees in A1C RD’s flight noticed the special treatment she received as a
result of their unprofessional relationship. He compounded that harm by obstructing
justice himself and suggesting to A1C RD that she should lie and destroy evidence to
protect him. Having fully considered the particular appellant, the nature and seriousness
of the offenses, the appellant’s record of service, and all matters contained in the record
of trial, we find the sentence appropriate.

                                         Conclusion

       The approved findings and 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 approved findings and
sentence are



                                         AFFIRMED.

             FOR THE COURT



             LEAH M. CALAHAN
             Deputy Clerk of the Court




                                             7                                  ACM S32167
