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

                               No. ACM 38968
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                          Scott A. MEAKIN
           Lieutenant Colonel (O-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 14 July 2017
                          ________________________

Military Judge: Joshua Kastenberg (arraignment); Natalie D. Richard-
son (trial).
Approved sentence: Dismissal, confinement for 20 months, and forfei-
ture of all pay and allowances. Sentence adjudged 28 August 2015 by
GCM convened at Davis-Monthan Air Force Base, Arizona.
For Appellant: Captain Allen S. Abrams, USAF.
For Appellee: Major Jeremy D. Gehman, USAF; Major Tyler B.
Musselman, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge MAYBERRY delivered the opinion of the court, in which
Senior Judge JOHNSON and Judge SPERANZA joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

MAYBERRY, Senior Judge:
    A general court-martial composed of a military judge sitting alone con-
victed Appellant, contrary to his pleas, of two charges and 17 specifications in
                       United States v. Meakin, No. ACM 38968


violation of Article 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 933. 1 The military judge sentenced Appellant to a dismissal, confinement
for 20 months, and total forfeiture of all pay and allowances. The convening
authority (CA) deferred and later waived the adjudged and automatic forfei-
tures but approved the remainder of the adjudged sentence.
    Appellant asserts six assignments of error but this opinion only addresses
four: (1) his convictions are legally and factually insufficient; (2) the military
judge abused her discretion when she denied the Defense motion for a con-
tinuance to obtain the presentence report in Appellant’s federal district court
case; (3) the military judge abused her discretion when she denied the De-
fense motion to dismiss for unreasonable multiplication of charges; and (4)
the addendum to the staff judge advocate recommendation (SJAR) failed to
accurately advise the CA about post-trial confinement conditions purportedly
violating the Eighth Amendment, Article 12, UCMJ, 10 U.S.C. § 812, and Ar-
ticle 55, UCMJ, 10 U.S.C. § 855, alleged in his clemency submission. 2 We find
there was no error prejudicial to Appellant as to the first three assignments
of error, but we do find that the addendum to the SJAR was defective and we,
therefore, remand the case for new post-trial processing.

                                    I. BACKGROUND
    Investigation by the Department of Homeland Security and the Air Force
Office of Special Investigations (AFOSI) revealed Appellant engaged in online
conversations, image sharing, and electronic mail (email) correspondence
with a Canadian law enforcement officer in a chat room on a pornographic
website. Further investigation revealed Appellant had engaged in similar
online conversations with a number of others. The content of the conversa-
tions involved extremely graphic descriptions of sexual abuse and degrada-
tion of children. On many occasions, Appellant asked for photographs of the
alleged abuse. Appellant admitted to engaging in various online chats.
   In September of 2014, Appellant was indicted for knowing access of child
pornography in United States District Court for the District of Arizona (fed-



1   Appellant was acquitted of one specification of a violation of Article 133, UCMJ.
2 In light of our determination that the addendum to the staff judge advocate recom-
mendation was deficient, we need not address Appellant’s allegation that he is enti-
tled to sentence relief as a result of his conditions of confinement to include being
confined with foreign nationals, and his allegation that he is entitled to sentence re-
lief as a result of post-trial delay.




                                             2
                   United States v. Meakin, No. ACM 38968


eral district court). 3 On 23 December 2014, the Charge and its 17 specifica-
tions were preferred. On 13 February 2015, Appellant pleaded guilty and was
convicted of knowing access of child pornography in federal district court, and
he was placed on conditional release pending sentencing in federal district
court. On 25 March 2015, Appellant’s Article 32, UCMJ, hearing was held,
during which time the Government requested the preliminary hearing officer
consider an additional charge with a single specification of conduct unbecom-
ing an officer. On 13 April 2015, the Additional Charge and Specification
were preferred. On 1 May 2015, both charges and all 18 specifications were
referred to trial by general court-martial.
    On 22 June 2015, Appellant was arraigned at Davis-Monthan Air Force
Base (AFB), Arizona. On 28 August 2015, contrary to his pleas, a military
judge convicted Appellant of both charges and 17 of the 18 specifications,
with some language excepted, in violation of Article 133, UCMJ. The military
judge sentenced Appellant to a dismissal, confinement for 20 months, and
forfeiture of all pay and allowances. Pursuant to Article 57, UCMJ, 10 U.S.C.
§ 857, Appellant began serving his sentence of confinement that same day.
On 11 September 2015, Appellant requested deferment and waiver of the au-
tomatic forfeitures for the benefit of his wife and son. On 25 September 2015,
the CA deferred the adjudged and automatic forfeitures, withholding final
decision on the waiver request until action.
    On 14 October 2015, Appellant arrived at the Naval Consolidated Brig in
Charleston, South Carolina (Charleston Brig). On 27 October 2015, Appellant
filed a motion with the federal district court to revoke the conditions of his
release pending sentencing in that court. Despite opposition from the Assis-
tant United States Attorney (AUSA), the federal magistrate judge granted
Appellant’s motion on 4 November 2015. Three weeks later, on 25 November,
a Writ of Habeas Corpus ad Prosequendum was issued, ordering Appellant to
be returned to the jurisdiction of the federal district court. The Charleston
Brig facility received a request for a temporary transfer of Appellant from the
local U.S. Marshal’s office. The request was coordinated with and approved
by Air Force Corrections.
  On 4 December 2015, Charleston Brig turned Appellant over to the U.S.
Marshals. 4 Between 4 December 2015 and 18 December 2015, Appellant was


3 The evidence supporting this crime was discovered during the investigation giving
rise to the charges before this court.
4 At this time, the SJAR had been served on Appellant and his counsel but final ac-
tion had not been taken.




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                    United States v. Meakin, No. ACM 38968


confined in at least four different confinement facilities as the U.S. Marshals
transported him across the country in accordance with the federal order. On
18 December 2015, Appellant arrived at the Central Arizona Detention Facil-
ity (CADF) in Florence, Arizona, and he remained in this facility until his
sentencing hearing in May of 2016. 5 On 8 January 2016, the CA approved
only the confinement and dismissal. The CA waived the mandatory forfei-
tures for a period of six months or release from confinement, whichever was
sooner, with the waiver commencing on the date of action.
    On 19 May 2016, Appellant was sentenced in federal district court to 24
months of confinement, to run concurrently with his military sentence of con-
finement. Appellant received confinement credit starting on 28 August 2015,
and remained at CADF until 10 June 2016. Appellant was subsequently re-
turned to Charleston Brig on 5 July 2016, and he remained there until he
was released on 28 December 2016, having served his military sentence. He
was transported from Charleston Brig to the federal confinement facilities in
Arizona, again by the U.S. Marshals, in order to serve out the remainder of
his federal sentence.

                                 II. DISCUSSION
A. Legal and Factual Sufficiency
   Appellant avers that his convictions should be set aside because the evi-
dence is both legally and factually insufficient.
     This court reviews issues of legal and factual sufficiency de novo. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal
sufficiency of the evidence is ‘whether, considering the evidence in the light
most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.’” United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner,
25 M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the prose-
cution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001); see also
United States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993).
   The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of [Appellant]’s guilt beyond a reasonable


5 The record is devoid of any documentation regarding the scheduling of this sentenc-
ing hearing.




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                  United States v. Meakin, No. ACM 38968


doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, we
take “a fresh, impartial look at the evidence,” applying “neither a presump-
tion of innocence nor a presumption of guilt” to “make [our] own independent
determination as to whether the evidence constitutes proof of each required
element beyond a reasonable doubt.” Washington, 57 M.J. at 399. The term
reasonable doubt, however, does not mean that the evidence must be free
from conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our
assessment of legal and factual sufficiency is limited to the evidence produced
at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
   As charged, the elements of Article 133, UCMJ, are:
    (1) That the accused wrongfully and dishonorably communicated, in writ-
ing, certain indecent language; and
   (2) That, under the circumstances, these acts constituted conduct unbe-
coming an officer and gentleman.
    The parties agreed that the military judge should use the following defini-
tion of indecency:
       “Indecent” language is that which is grossly offensive to modes-
       ty, decency, or propriety, or shocks the moral sense, because of
       its vulgar, filthy, or disgusting nature, or its tendency to incite
       lustful thought. Language is indecent if it tends reasonably to
       corrupt morals or incite libidinous thoughts. The language
       must violate community standards.
Manual for Courts-Martial, United States (MCM), pt. IV, ¶ 89.
   Article 133 prohibits conduct by a commissioned officer that is:
       action or behavior in an unofficial or private capacity which, in
       dishonoring or disgracing the officer personally, seriously com-
       promises the person’s standing as an officer. There are certain
       moral attributes common to the ideal officer and the perfect
       gentleman, a lack of which is indicated by acts of . . . indecency,
       indecorum . . . or cruelty.
MCM, pt. IV, ¶ 59(c)(2).
    There is no requirement that the conduct underlying an alleged violation
of Article 133, UCMJ, be criminal on its own. United States v. Norvell, 26
M.J. 477, 481 (C.M.A. 1988). The underlying act may be constitutionally pro-
tected in civilian society but not necessarily so for military members, and
therefore be criminal under Article 133, UCMJ. United States v. Forney, 67
M.J. 271, 275 (C.A.A.F. 2009). Purely private speech can serve as the basis
for a charge under Article 133. United States v. Hartwig, 39 M.J. 125, 128


                                       5
                    United States v. Meakin, No. ACM 38968


(C.M.A. 1994). Additionally, private conduct may constitute an offense under
Article 133, UCMJ. United States v. Moore, 38 M.J. 490, 493 (C.M.A. 1994).
    In Moore, our superior court held that indecent speech is “synonymous
with ‘obscene’ and . . . not afforded constitutional protection” when alleged as
a violation of Article 133, UCMJ. Id. at 492. That same year, in Hartwig, our
superior court held, “When an alleged violation of Article 133 is based on an
officer’s private speech, the test is whether the officer’s speech poses a ‘clear
and present danger’ that the speech will, ‘in dishonoring or disgracing the
officer personally, seriously compromise[ ] the person’s standing as an of-
ficer.’” Hartwig, 39 M.J. at 128. Appellant asserts that his speech was pri-
vate, anonymous, and “evidently consensual.” He characterizes his online
chats as fantasies that he would not act on—“dirty talk.” Appellant asserts
that there was no evidence that any interlocutor 6 was not an adult, and there
was no evidence that anyone other than the interlocutor was present during
the conversations. Consequently, Appellant asserts that a tension exists be-
tween Moore and Hartwig and this court should apply the heightened stand-
ard set forth in Hartwig.
    In Stanley v. Georgia, 394 U.S. 557, 568 (1969), the Supreme Court found
a limited right to possess obscene materials in the privacy of one’s own home.
In discussing the Constitution’s protection of the right to receive information
and ideas, the Court famously noted:
       Whatever may be the justifications for other statutes regulat-
       ing obscenity, we do not think they reach into the privacy of
       one’s own home. If the First Amendment means anything, it
       means that a State has no business telling a man, sitting alone
       in his own house, what books he may read or what films he
       may watch. Our whole constitutional heritage rebels at the
       thought of giving government the power to control men’s
       minds.
Id. at 565.
   Since issuing this opinion, however, the Supreme Court has made clear
that its holding in Stanley is a narrow one. See United States v. Reidel, 402
U.S. 351, 357 (1971). In particular, with regard to Appellant’s case, the Court
has held the zone of privacy Stanley protected does not extend beyond the
home. Federal statutes dealing with obscenity are construed to incorporate


6Each specification uses this term and associates it with a user name from the online
chats. Only one user was identified, the Canadian law enforcement officer.




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                  United States v. Meakin, No. ACM 38968


the standards in Miller v. California, 413 U.S. 15 (1973). Ashcroft v. A.C.L.U.,
535 U.S. 564, 581 (2002). Since establishing an obscenity standard, the Su-
preme Court has consistently held that obscene speech, that is, sexually ex-
plicit speech that violates the fundamental notions of decency, is not protect-
ed by the Constitution. See United States v. Williams, 553 U.S. 285, 288
(2008). Stanley emphasized the freedom of thought and mind in the privacy of
the home; Stanley did not create a right to receive, transport, or distribute
obscene material. See United States v. Thirty-Seven (37) Photographs, 402
U.S. 363, 376 (1971). Finally, we note that there is no distinction as to the
medium of the expression when dealing with obscene material. Obscenity can
manifest itself “in conduct . . . or in the written and oral description of con-
duct.” Kaplan v. California, 413 U.S. 115, 119 (1973).
    Here, Appellant chose to express his obscene “fantasies” via the medium
of online chats and emails, and analogizes that activity to private conversa-
tions within his home which he asserts is protected free speech. Under Moore,
such speech is not afforded constitutional protection. See United States v.
Bowersox, 72 M.J. 71, 80 (C.A.A.F. 2013) (communicating obscene material
not entitled to the protection afforded by Stanley as the activity is beyond
mere possession); United States v. Gill, 40 M.J. 835, 837 (A.F.C.M.R. 1994)
(speech communicated in private between consenting adults is not protected
by the First Amendment because it was indecent on its face and prejudicial to
good order and discipline); United States v. Maxwell, 42 M.J. 568, 580 (A.F.
Ct. Crim. App. 1995), rev’d on other grounds, 45 M.J. 406 (C.A.A.F. 1996) (in-
decent language communicated by consensual email messages that the appel-
lant believed would be private does not lessen the discrediting nature of the
conduct).
    The tension between Moore and Hartwig relied upon by Appellant has no
bearing on the issue before us. Here, the court must determine whether Ap-
pellant’s online chats and emails were sufficient to constitute conduct unbe-
coming an officer. The content of Appellant’s online discussions were clearly
indecent. The charged conduct need not actually damage the reputation of
the military, instead it only has to have a tendency to do so. See Parker v.
Levy, 417 U.S. 733, 754 (1974); United States v. Anderson, 60 M.J. 548, 554
(A.F. Ct. Crim. App. 2004). Although Appellant’s identity as a military mem-
ber was revealed in the course of the criminal investigation, he did not have
to outwardly identify himself as a member of the military for his actions to
constitute conduct unbecoming an officer. Appellant’s conduct was disgraceful
to himself and the reputation of the military.
B. Denial of Motion for Continuance
   On 20 July 2015, trial defense counsel filed a motion for a continuance of
the court-martial docketed for 25–28 August 2015, due to the fact Appellant’s

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                  United States v. Meakin, No. ACM 38968


sentencing hearing in federal district court was scheduled to take place on 26
August 2015. The Government’s response to the motion, filed on 22 July
2015, indicated the federal sentencing hearing had twice been continued at
the request of Appellant. The current date had been established on 9 June
2015, and the AUSA handling the case had agreed to request the August date
be continued, but it was too early to do so. On 29 July 2015, the Government
filed a supplemental response, attaching a copy of the request by the AUSA
to continue the 26 August hearing. The pleading filed by the AUSA included
a statement that the federal pre-sentence investigation report guideline
(PIRG) would not be completed in time for the currently scheduled date in
part because the probation officer had not yet received the psychosexual
evaluation. On 31 July 2015, the Government submitted a second supple-
mental filing indicating that the federal sentencing hearing had been contin-
ued until 14 September 2015.
    On 21 August 2015, trial defense counsel again filed a motion for a con-
tinuance, based in part on Rule for Courts-Martial (R.C.M.) 703(f)(2), assert-
ing the trial counsel had not provided a copy of the PIRG, which he candidly
acknowledged was not complete as of the time of the request. Trial defense
counsel asserted that the sentence recommendation contained within the pre-
sentencing report was evidence in mitigation, regardless of the content of the
recommendation. The Government’s response, filed the same day, asserted
that R.C.M. 703(f)(2) was inapplicable since the evidence Appellant sought
did not now, or previously, exist. The Government further argued that until
the report was completed, no determination could be made as to whether or
not it contained discoverable information.
    On 22 August 2015, the military judge continued the case for one day for
other reasons. On 25 August, the military judge denied the request for a con-
tinuance as to the “non-disclosure of the pre-sentencing report” stating:
       R.C.M. 706(a)(6)(C) requires the trial counsel to disclose to the
       defense the existence of evidence known to trial counsel to ne-
       gate or reduce the degree of guilty, or reduce the punishment.
       ....
       The Rules for Courts-Martial do not require the government to
       provide the defense a document which is anticipated to be in
       existence at some future point. As the presentence report is not
       in existence, trial counsel cannot disclose it to the defense.
       Moreover, trial counsel does not and cannot know whether it
       contains anything favorable to the defense.
   The PIRG was prepared on 19 April 2016, with the addendum completed
on 5 May 2016.


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                     United States v. Meakin, No. ACM 38968


    We review a military judge’s decision to deny a motion for a continuance
for an abuse of discretion. United States v. Weisbeck, 50 M.J. 461, 464
(C.A.A.F. 1999). An abuse of discretion “requires more than just [a court’s]
disagreement with the military judge’s decision.” United States v. Bess, 75
M.J. 70, 73 (C.A.A.F. 2016). An abuse of discretion occurs only when the mili-
tary judge’s findings of facts are clearly erroneous, when her decision is influ-
enced by an erroneous view of the law, or when her decision is “outside the
range of choices reasonably arising from the applicable facts and the law.”
United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008).
    In determining whether a military judge abused her discretion in grant-
ing a continuance, appellate courts consider the following factors:
         surprise, nature of any evidence involved, timeliness of the re-
         quest, substitute testimony or evidence, availability of witness
         or evidence requested, length of continuance, prejudice to op-
         ponent, moving party received prior continuances, good faith of
         moving party, use of reasonable diligence by moving party, pos-
         sible impact on verdict, and prior notice.
United States v. Wiest, 59 M.J. 276, 279 (C.A.A.F. 2004) (quoting United
States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997)).
    Trial courts must be accorded “broad discretion” in granting or denying
continuances. Morris v. Slappy, 461 U.S. 1, 11 (1983); United States v. Wel-
lington, 58 M.J. 420, 425 (C.A.A.F. 2003). A military judge’s erroneous deci-
sion to deny a defense continuance is reviewed for prejudicial error. Welling-
ton, 58 M.J. at 424.
    Appellant now asserts that the military judge’s denial prejudiced him by
limiting the mitigation evidence he could have introduced at trial, thereby
denying him the opportunity to challenge his court-martial on the basis of the
Fifth Amendment’s prohibition against Double Jeopardy. 7
   Appellant was court-martialed for communicating indecent language, in
writing, online. His federal district court conviction was for knowing access of
92 images of child pornography. Not having access to an unfinished PIRG
imposed no limitation on raising a motion to dismiss for violation of the Fifth
Amendment. The true limiting factor in raising such a motion was the fact
that Appellant had not yet been sentenced for any criminal offense. Further-
more, the content of the PIRG would not have assisted Appellant, even if he
had made such a motion insomuch as it contains language that contradicts

7   U.S. CONST. amend. V.




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                    United States v. Meakin, No. ACM 38968


his claim: “On 28 August, 2015, the defendant was court martialed in mili-
tary court for conduct similar to the instant offense which was not encom-
passed by the indictment.”
    Appellant’s second continuance, filed four days before his court-martial
was to begin, essentially requested an indefinite delay based on evidence
which did not exist at the time of the request. As of that date, his federal sen-
tencing hearing had been delayed twice, and in fact Appellant was not sen-
tenced in federal district court for another nine months—a total of 15 months
after he entered his guilty plea. Appellant could only speculate as to the con-
tent of the report. Although Appellant possessed the PIRG prior to filing his
assignments of error, he does not specifically identify any mitigation evidence
contained therein that he would have offered at his court-martial.
    From the time he entered his guilty plea in federal district court, Appel-
lant was aware that a PIRG would be compiled. Appellant was represented
by counsel throughout both the federal proceeding and his court-martial pro-
ceeding. While the PIRG does indicate that Appellant was interviewed by the
probation officer preparing the report, it does not say when that interview
occurred. Additionally, one reason the report was not complete at the time of
Appellant’s court-martial was the fact that the probation officer was awaiting
the result of the psychosexual evaluation. The PIRG refers to two distinct
evaluations, neither of which is explicitly referred to as a psychosexual eval-
uation. The first, a psychiatric evaluation, occurred on 13 January 2015 but
there is no further information as to when the results of that evaluation were
made available to the probation office. The second evaluation, a sex offender
specific evaluation, is cited as “prepared on 16 July 2015.” Yet, it is not clear
as to when that evaluation occurred, or when it was provided to the probation
office. 8
   Appellant’s trial defense counsel was aware of Appellant’s September
2014 federal indictment at the time court-martial charges were preferred.
Eight months elapsed between preferral of charges and the court-martial. Six
months elapsed between Appellant’s guilty plea in federal district court on 13
February 2015 and his court-martial. Additionally, Appellant personally
sought treatment for sex addiction in February of 2014 at The Meadows, a


8 It is reasonable to conclude that the second evaluation noted in the PIRG is the psy-
chosexual evaluation based on the transcript of Appellant’s allocution in federal dis-
trict court on 13 February 2015, whereby the federal magistrate indicates he will
sign the order granting the psychosexual evaluation.




                                          10
                  United States v. Meakin, No. ACM 38968


facility in Wickenburg, Arizona, shortly after his interview by AFOSI and the
Canadian law enforcement office. In April 2014, after being released from
The Meadows treatment facility, Appellant began treatment with a licensed
psychotherapist. Appellant’s trial defense counsel had ample opportunity to
obtain mitigation evidence from the providers involved in these treatment
programs. The licensed psychotherapist did submit a letter in support of Ap-
pellant’s court-martial clemency package and, presumably, she could have
provided similar evidence at trial.
    Appellant asserts he was prejudiced at the time of his court-martial by
not having potential mitigation information contained within the presentenc-
ing report. We again note that at the time of the court-martial there was no
report, so the military judge had no articulable content as to what that miti-
gation evidence might be. Appellant did not provide the military judge with
any information pertaining to his treatment efforts at the motion hearing,
nor at the sentencing phase of the trial. The PIRG includes information relat-
ed to Appellant’s stay at The Meadows, at least some of which was provided
by Appellant. It states:
       Meakin stated the treatment dealt with his addiction to sex. A
       psychiatric discharge summary from The Meadows indicates
       the defendant was admitted into the Gentle Path program on
       February 10, 2014, with impulse control disorder, sexual com-
       pulsivity, and anxiety disorder. . . when he was discharged, the
       defendant was diagnosed with impulse control disorder, sexual
       compulsive behavior, PTSD, and narcissistic and antisocial
       personality traits. The summary indicates the counselors felt
       the defendant needed to continuing [sic] working on his sexual
       addiction.
   Appellant’s trial defense counsel presented a solid sentencing case, in-
cluding Appellant’s combat service. Counsel knew, or should have known,
about the available evidence regarding his psychological diagnoses. Their
knowledge as to Appellant’s psychological state at the time of trial signifi-
cantly weakens their argument that Appellant was prejudiced by not having
speculative potential mitigation evidence. The evidence contained within the
PIRG is no more mitigating than that from Appellant’s earlier treatment.
    Having reviewed the evidence provided to the military judge at the time
Appellant filed his motion for continuance, we find the military judge did not
abuse her discretion in denying the motion. With the knowledge of the evi-
dence that was available but not provided, we are not compelled to reach a
different conclusion. Appellant was not prejudiced by not having the federal
presentencing report at the time of his court-martial.



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                  United States v. Meakin, No. ACM 38968


C. Unreasonable Multiplication of Charges
    Claims of unreasonable multiplication of charges are reviewed for abuse
of discretion. United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012).
    In a claim regarding error in a military judge’s ruling on a motion for un-
reasonable multiplication of charges, an appellant must show that the find-
ings of fact upon which a military judge predicated the ruling were not sup-
ported by the evidence in the record, that incorrect legal principles were used
by the military judge, or that the military judge’s application of correct legal
principles to the facts of the case was clearly unreasonable. United States v.
Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie, 66
M.J. 198, 199 (C.A.A.F. 2008)).
    “Even where charges are not multiplicious, ‘the prohibition against un-
reasonable multiplication of charges has long provided courts-martial and
reviewing authorities with a traditional legal standard—reasonableness—to
address the consequences of an abuse of prosecutorial discretion in the con-
text of the unique aspects of the military justice system.’” United States v.
Anderson, 68 M.J. 378, 385–86 (C.A.A.F. 2010) (quoting United States v. Qui-
roz, 55 M.J. 334, 338 (C.A.A.F. 2001)).
   We consider the following non-exhaustive factors in determining whether
unreasonable multiplication of charges has occurred:
       (1) Did the [appellant] object at trial that there was an unrea-
       sonable multiplication of charges and/or specifications?; (2) Is
       each charge and specification aimed at distinctly separate
       criminal acts?; (3) Does the number of charges and specifica-
       tions misrepresent or exaggerate the appellant’s criminality?;
       (4) Does the number of charges and specifications [unreasona-
       bly] increase the appellant’s punitive exposure?; (5) Is there
       any evidence of prosecutorial overreaching or abuse in the
       drafting of the charges?
Quiroz, 55 M.J. at 338 (citation and internal quotation marks omitted).
   Appellant alleges the military judge abused her discretion in denying De-
fense counsel’s motion because her findings of fact were not supported by the
evidence in the record and because her application of the law to the facts of
the case was clearly unreasonable.
    Appellant moved to dismiss Specifications 2 through 17 of the Charge and
the Additional Charge and its Specification for findings or, in the alternative,
for sentencing based on the unreasonable multiplication of charges. Appel-
lant did object at trial, satisfying the first Quiroz factor. On the other hand,
Appellant does not allege there was any evidence of prosecutorial overreach-


                                      12
                   United States v. Meakin, No. ACM 38968


ing, resolving the fifth Quiroz factor. The heart of Appellant’s argument in-
volves the second, third, and fourth Quiroz factors.
    All parties agreed the maximum term of confinement for each specifica-
tion was six months. So, with regard to the fourth Quiroz factor, the punitive
exposure increases from six months to 102 months. Each specification in-
volved an online conversation with a distinct screen name. While the dates of
the specifications overlap, the charged timeframe runs from 16 May 2013 to
30 January 2014, some eight and a half months. Six specifications involve
only a single date; one involves two days; and the longest timeframe covers
the entire eight and one half months. There was more than one forum where
the communications took place—“motherless.com” and “yahoo chat.”
    At the motion hearing, and again on appeal, Appellant asserts that the
communications were a continuous course of conduct involving the same sub-
ject matter. Appellant further argues that the Government had only identi-
fied the name of one individual who received the communications, the Cana-
dian law enforcement officer. The military judge denied the motion, finding
that “each charge and specification is aimed at a distinctly separate criminal
act. . . . I see no evidence of them being related to each other except in kind of
MO [modus operandi].” The military judge found that the number of charges
and specifications did not misrepresent or exaggerate Appellant’s criminality
or unreasonably increase his punitive exposure. The military judge found no
evidence of prosecutorial overreaching or abuse. The military judge consid-
ered the motion again for sentencing and denied the motion, stating:
       I’m looking at the Quiroz factors again. My analysis has not
       changed and now I have got the benefit of seeing all the evi-
       dence and it is even clearer to me that these are separate and
       distinct acts that may have had the same theme running
       through them and may have been accomplished using similar
       means, but they’re different conversations with different inter-
       locutors, starting and stopping at different times.
    The facts associated with the online conversations charged in the 17 spec-
ifications, which Appellant was convicted of, were separate and distinct acts.
While there are overlapping dates involved in these conversations, Appel-
lant’s actions were not a continuing course of conduct. The military judge’s
findings of fact are supported by the evidence, and she applied the appropri-
ate law. Appellant is not entitled to relief on this issue.
D. Addendum to the SJAR
    A brief chronology of the post-trial events is useful for resolution of this
issue. The record of trial was served on trial defense counsel on 4 November
2015. Appellant received his copy on 25 November 2015. The SJAR was


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                     United States v. Meakin, No. ACM 38968


signed on 18 November 2015, and received by trial defense counsel on 19 No-
vember. Appellant received his copy on 30 November. On 7 December, trial
defense counsel requested an extension to submit clemency due to the federal
ad Prosequndum order and the fact Appellant was currently being held in the
North Charleston County Detention Facility. On 18 December, trial defense
counsel again requested an extension, stating the last known location of Ap-
pellant was Georgia, and asserting that Appellant had communicated he was
being housed with foreign nationals.
    Appellant submitted clemency matters on 30 December 2015. Defense
counsel asserted Appellant’s post-trial confinement violated the Eighth
Amendment to the United States Constitution, 9 as well as Articles 12 and 55,
UCMJ. These allegations will be addressed separately. Here, our focus is the
language of the SJAR addendum, dated 7 January 2016, stating “the defense
does not allege legal error” and that the earlier recommendation to approve
the sentence except for forfeitures was unchanged. On 8 January 2016, the
CA approved the adjudged sentence except for the forfeitures. The addendum
to the SJAR was served on trial defense counsel on 12 January 2016.
   This court reviews allegations of improper completion of post-trial pro-
cessing de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).
    The staff judge advocate (SJA) did not acknowledge Appellant’s allegation
of error and opine that the allegation had no merit as so often occurs; instead,
the SJA erroneously asserted that Appellant had raised no legal error. For
relief, Appellant asks that his dismissal be set aside. Alternatively, Appellant
asks for this court to set aside the action and remand for new and speedy
post-trial processing.
   The Government offers the following “likely explanation” for the “no legal
error” language in the addendum:
          [T]he SJA did not consider allegations of post-trial confinement
          conditions, which came to existence after the conclusion of Ap-
          pellant’s court-martial, a legal error affecting the findings and
          sentence. In other words, Appellant’s post-trial confinement
          had no role in the military judge’s findings or her sentence. In-
          stead, he more likely viewed the allegations under the realm of
          clemency.




9   U.S. CONST. amend. VIII.




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                    United States v. Meakin, No. ACM 38968


    We are not persuaded by this rationalization. More germane is the decla-
ration from the Chief of Military Justice at the time Appellant’s clemency
submission was pending, Captain (Capt) AS.
    Capt AS indicates the AUSA prosecuting Appellant made statements to
the legal office “that [Appellant] was being transported to a facility in Flor-
ence, Arizona, to receive pretrial confinement credit for his pending civilian
criminal trial; his placement in the Charleston County Detention Center 10 was
part of that transport,” and that it was not until Appellant’s trial defense
counsel submitted their second extension request, 11 days later, for more time
to submit his clemency that “they had any knowledge that Appellant was be-
ing housed with foreign nationals.” Capt AS further states, “[W]e had no rea-
son to believe housing with foreign nationals would continue knowing that
transport to another facility was imminent.” Appellant’s clemency package,
submitted some two weeks later, corroborated that he had in fact arrived at
the Florence facility on the date the second extension was requested.
    This declaration is troubling for three reasons. First, it provides evidence
that the legal office at Davis-Monthan AFB was aware that Appellant was go-
ing to be moved from military confinement. Similarly, the Government, which
is responsible for ensuring Article 12, UCMJ, is complied with, was aware that
a military prisoner was going to be moved to another facility. 11 Finally, and
most troubling, is the fact that the Government was aware of the allegation
involving Appellant being housed with foreign nationals prior to the submis-
sion of Appellant’s clemency, and in addition to not raising it in the addendum
to the SJAR, took absolutely no action with regards to the substance of the al-
legation—because the legal office had “no reason to believe it would continue.”
The fact that an alleged violation of Article 12, UCMJ, may not continue does
not relieve the Government from inquiring into the conditions under which
Appellant, a military prisoner, may have already been housed with foreign na-
tionals and accurately informing the CA as to the legal implications of this
situation. Here, the Article 12, UCMJ, violations did in fact continue, as will
be discussed.
   When legal error is raised by an appellant during clemency, the SJAR
“shall state whether, in the staff judge advocate’s opinion, corrective action on
the findings or sentence should be taken.” R.C.M. 1106(d)(4). Errors in the


10 This was the known location of Appellant at the time trial defense counsel filed the
first request for an extension of time to submit clemency.
11Additional information regarding knowledge by other Government officials will be
addressed infra.




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                  United States v. Meakin, No. ACM 38968


SJAR are subject to appropriate corrective action by appellate authorities ex-
cept when trial defense counsel fails to comment on matters in the SJAR.
R.C.M. 1106(d)(6), 1106(f)(6). The Government asserts that Appellant did not
object to the error, thereby asking us to apply the plain error standard from
United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). We are not persuaded
by this argument in light of the fact that the error here was not in the SJAR
but the addendum, and the CA took action on the case before the defense
counsel was aware of the content of the addendum. We also find the holding in
United States v Catrett, 55 M.J. 400 (C.A.A.F. 2001), to be distinguishable in
that here, the SJAR Addendum erroneously stated that Appellant did not
raise legal error.
    The SJA is required to respond to allegations of legal error, and failure to
do so, in most instances, “will be prejudicial and will require remand of the
record to the [CA] for preparation of a suitable recommendation.” United
States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988). An error in the SJAR, however,
“does not result in an automatic return by the appellate court of the case to
the [CA].” United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996). This court
may “determine if the accused has been prejudiced by testing whether the al-
leged error has any merit and would have led to a favorable recommendation
by the SJA or corrective action by the [CA].” Id.
   In failing to even note the alleged legal error, the language of the adden-
dum was erroneous. Further, as we address below, the allegation had merit:
we find an Article 12 violation for which the Government could have, and
should have, taken corrective action. As such, we are compelled to remand the
case to the CA for new post-trial processing.
E. Article 12—Confinement with Foreign Nationals
   Appellant alleges he was intermittently housed with foreign nationals in
multiple non-military confinement facilities from 4–18 December 2015, and
confined with 10 to 12 individuals, who appeared to be foreign nationals in
confinement for illegal entry into the United States through the border with
Mexico, at the federal confinement facility beginning on 18 December 2015.
    We review de novo the question of whether an appellant’s post-trial con-
finement violates Article 12, UCMJ. United States v. McPherson, 73 M.J. 393,
395 (C.A.A.F. 2014); United States v. Wise, 64 M.J. 468, 473–74 (C.A.A.F.
2007). Article 12, UCMJ, states: “No member of the armed forces may be
placed in confinement in immediate association with enemy prisoners or oth-
er foreign nationals not members of the armed forces.” “Immediate associa-
tion” has been interpreted to mean that military members can be confined in
the same jail or brig as a foreign national, but military members must be seg-
regated in different cells. Wise, 64 M.J. at 475. Article 12, UCMJ, applies to


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                  United States v. Meakin, No. ACM 38968


military members confined in civilian state or federal facilities in the United
States. McPherson, 73 M.J. at 394.
    Typically, absent unusual or egregious circumstances, an appellant must
exhaust administrative remedies before we will grant relief for a violation of
Article 12. Id.; see also United States v. Miller, 46 M.J. 248, 250 (C.A.A.F.
1997). This requirement promotes the “resolution of grievances at the lowest
possible level with prompt amelioration of the complaint while the prisoner
suffers the condition,” and assists in developing an “adequate record to aid
appellate review.” McPherson, 73 M.J. at 397 (quoting Wise, 64 M.J. at 471);
see also United States v. White, No. ACM 33583, 1999 CCA LEXIS 220, at *4,
(A.F. Ct. Crim. App. 23 Jul. 1999), aff’d, 54 M.J. 469, 475 (C.A.A.F. 2001). To
meet this requirement, an appellant must show that absent some unusual or
egregious circumstance, he has exhausted the prisoner-grievance system in
his confinement facility and petitioned for relief under Article 138, UCMJ, 10
U.S.C. § 938. McPherson, 73 M.J. at 397 ; Wise, 64 M.J. at 471; United States
v. White, 54 M.J. 469, 472 (C.A.A.F. 2001).
    Capt AS states in her declaration that at least as early as mid-December
2015, and possibly earlier, the Davis-Monthan AFB legal office was aware of
Appellant’s movement to CADF in Florence, Arizona, and was aware that his
placement in the North Charleston Detention Facility was part of that
transport. In mid-December 2015, as part of their request for additional time
to submit clemency matters, defense counsel informed the legal office that
Appellant believed he was being housed with foreign nationals. As a result,
Article 12, UCMJ, is not truly being raised for the first time on appeal.
    Appellant maintains he is entitled to confinement credit for his time in
confinement with foreign nationals following his military court-martial while
awaiting his federal sentencing hearing. As discussed above, Appellant’s fed-
eral defense counsel filed a motion to revoke the conditions of his release for
the purpose of getting confinement credit. A federal magistrate judge granted
Appellant’s motion and signed a Writ of Habeas Corpus ad Prosequendum.
The U.S. Marshal’s office in Charleston notified the military officials at
Charleston Naval Brig of the writ and requested a temporary transfer of Ap-
pellant. The Charleston Brig staffed the request with Air Force Corrections
and received authorization to assist with the temporary transfer. Appellant
was turned over to the U.S. Marshals on 4 December 2015, with an unknown
date of return. Charleston Brig personnel did not dictate to Appellant or the
gaining facility what regulations he would be required to follow. Appellant
spent the next 14 days in various non-military detention centers in South
Carolina, Georgia, Oklahoma and Arizona. On 18 December 2015, Appellant
arrived at CADF in Florence, Arizona, where he remained until 10 June
2016. En route back to Charleston Brig, Appellant spent approximately 25


                                      17
                   United States v. Meakin, No. ACM 38968


days in multiple nonmilitary confinement facilities, returning to military con-
trol on 5 July 2016, seven months after he departed. Appellant does not as-
sert he had any foreign national cellmates on his return trip to Charleston
Brig.
    We first address Appellant’s time in the various nonmilitary confinement
facilities from 4 December 2015 through 18 December 2015. In his clemency
submission, he asserted he was housed with foreign nationals from 4–9 De-
cember, was transported (in military uniform) with two foreign nationals
from South Carolina to Ocilla, Georgia on 9 December, and was transported
(again in uniform) on 11 December with inmates who indicated “their organi-
zations employed military members with criminal records to fly from South-
ern Mexico to the U.S. border.” The declaration from the North Charleston
Detention Center confirms that they house foreign nationals, and depending
on their classification in relation to Appellant, he could have had direct inter-
action with them. The Affidavit from the Joint Prisoner and Alien Transpor-
tation System (JPATS) accounts for Appellant’s movement from 11 through
18 December 2015 and while it lists the facilities where he was housed dur-
ing that time, no further information as to the conditions of his confinement
are included. We consider Appellant’s assertions for the period 4 through 14
December 2015 to be unrebutted.
    In an affidavit attached to his pleading, Appellant asserts that upon arri-
val at CADF he was placed in a cell with 13 foreign nationals serving time for
illegal entry into the United States. The declarations provided by the facility
in South Carolina and CADF confirm that foreign nationals were housed in
those facilities. Although there is no evidence Appellant filed formal griev-
ances about Article 12, UCMJ, violations at any of the nonmilitary facilities
before he arrived at CADF, the record contains evidence that Appellant did
notify his military defense counsel of the situation while en route to CADF
and that his counsel notified the legal office. Appellant’s declaration asserts
that within a few days after his arrival at CADF, he informed someone at
that facility of his military status and the prohibition against being housed
with foreign nationals and received a response of “they would see what he
could do.” Appellant declares that he remained in the 13-man cell until mid-
March at which time he was placed in a two-man cell, but again with a for-
eign national cellmate; between March and June of 2016, he had approxi-
mately five to six cellmates and only two of them were U.S. citizens. The
CADF declaration indicates their records show Appellant was moved to a
two-man cell in mid-January, and was moved on three more occasions, each
time to a two-man cell, before his departure on 10 June 2016.
   We find the facts surrounding Appellant’s movement from 4–18 December
2015 to constitute unusual circumstances and provide good cause for his fail-


                                       18
                   United States v. Meakin, No. ACM 38968


ure to exhaust administrative remedies during this time. He did not neces-
sarily know where he was, how long he would be there, and where he was go-
ing next. Despite the understandable need to ensure operational security at
these facilities, there was little Appellant could do to remedy the situation.
    Article 12 is a federal statute. Appellant was a military prisoner, receiv-
ing credit for a military sentence to confinement throughout this time period.
The actions, or inactions, by the Air Force and the Department of Defense
correctional personnel in not informing the U.S. Marshal’s Service of the pro-
hibition against housing Appellant with foreign nationals cannot be ignored.
Additionally, the evidence demonstrates that Appellant conveyed the infor-
mation about his conditions to his military defense counsel, as best he could
under the circumstances, and counsel in turn conveyed that information to
the legal office on or about 15 December 2015. When this information was
received, it was not acted on because the legal office knew he would be trans-
ferred from the identified facility (the first of five as we know now) and “had
no reason to believe it would continue.” It is not reasonable to reach such a
conclusion without any investigation; and the record shows the legal office
did not engage in any investigation. Rather, Capt AS’s declaration asserts
that on the date the delay request was filed, Appellant had already reached
Arizona. This is based on information the legal office knows now, not infor-
mation known at the time they learned of Appellant’s being housed with for-
eign nationals.
    Appellant’s failure to exhaust administrative remedies and seek redress
for the period of time from 18 December 2015 through 10 June 2016, when
Appellant had settled into CADF, had the ability to confer with counsel, and
did not file either a grievance with the facility or an Article 138, UCMJ, 10
U.S.C. § 938, complaint, is persuasive on the other hand. 12 The record is de-
void of any action taken by Appellant concerning any alleged Article 12 viola-
tions between Appellant’s clemency submission filed on 30 December 2015,
and his pleadings in this case filed on 22 November 2016. Accordingly, we do
not find unusual or egregious circumstances justifying his failure to exhaust
administrative remedies for the period of time he was confined at CADF.
    We defer determining what relief, if any, would be appropriate for the Ar-
ticle 12 violation until new post-trial processing has been completed, but in
taking new action, the convening authority shall be advised of and consider
this violation.


12Appellant did file one grievance during his time at CDAF, on 8 June 2016, regard-
ing his television.




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                  United States v. Meakin, No. ACM 38968


                              III. CONCLUSION
    The convening authority’s action, dated 8 January 2016, is SET ASIDE.
The record of trial is returned to The Judge Advocate General for remand to
the convening authority for new post-trial processing consistent with this
opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter, the record of tri-
al will be returned to this court for completion of appellate review under Arti-
cle 66, UCMJ, 10 U.S.C. § 866.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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