UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             LIND, KRAUSS, and PENLAND
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Specialist JOSHUA D. CHANDLER
                          United States Army, Appellant

                                   ARMY 20120680

               Headquarters, I Corps (Rear) (Provisional) (convened)
                          Headquarters, I Corps (action)
                          David L. Conn, Military Judge
              Colonel Kurt A. Didier, Staff Judge Advocate (pretrial)
            Colonel William R. Martin, Staff Judge Advocate (post-trial)


For Appellant: Captain Robert H. Meek, III (argued); Lieutenant Colonel Jonathan
F. Potter, JA; Major Amy E. Nieman, JA; Captain Sara E. Lampro, JA (on brief).

For Appellee: Captain Scott L. Goble, JA (argued); Colonel John P. Carrell, JA;
Lieutenant Colonel James L. Varley, JA; Major John K. Choike, JA; Major Alison L.
Gregoire, JA (on brief).


                                      7 April 2015

                               ---------------------------------
                                OPINION OF THE COURT
                               ---------------------------------

PENLAND, Judge:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of conspiracy to sell military property of a value of more than
$500; conspiracy to steal military property of a value of more than $500; conspiracy
to steal military property of a value of less than $500; wrongful disposition of
military property of a value of more than $500; sale of military property of a value
of more than $500; sale of military property of a value of less than $500; larceny of
military property of a value of more than $500; larceny of military property of a
value of less than $500; housebreaking; unlawful entry; wrongful communication of
a threat; and obstruction of justice in violation of Articles 81, 108, 121, 130, and
134, Uniform Code of Military Justice [ hereinafter UCMJ], 10 U.S.C. §§ 881, 908,
921, 930, 934 (2006). The panel sentenced appellant to a dishonorable discharge,
CHANDLER—ARMY 20120680

confinement for ten years, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved only so much of the sentence as
provided for a dishonorable discharge, confinement for nine years and two months,
forfeiture of all pay and allowances, and reduction to the grade of E -1.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises three assignments of error, all of which merit discussion but no relief. We
have also considered those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they are without
merit. Though not raised by appellant, we also find that two of the findings of guilt
of conspiracy should be consolidated into one specification to reflect appellant’s
single agreement to commit multiple offenses .

                            FACTUAL BACKGROUND

        Appellant was an armorer in Headquarters and Headquarters Company,
4th Battalion, 9th Infantry Regiment, 4th Stryker Brigade Combat Team, 2d Infantry
Division, Joint Base Lewis-McChord (JBLM), Washington. He conspired with
multiple soldiers to steal and sell military property from the battalion; stole the
military property; later sold some of this military property; and threatened to kill
one of his co-conspirators for his cooperation with law enforcement efforts to
recover it.

       Appellant’s misconduct began with relatively low -value larceny. Between
May and November 2011, he conspired with Specialist (SPC) Daniel Green to steal
Meals-Ready-to-Eat (MRE) from Company C’s supply room, where SPC Greene
worked. Appellant planned to sell the MREs at gun shows in Oregon. Appellant and
SPC Greene stole MREs from Company C’s supply room on multiple occasions.
Appellant then stole more military property from the supply room, including belt
cutters, impact gloves, and chemical illumination sticks. The aggregate value of this
stolen military property was approximately $4 ,500.

       In December 2011, appellant and Private (PVT) Nicholas Solt agreed to steal
and sell sensitive weapon accessories and flashlights from Company C’s arms room.
Appellant and PVT Solt secreted away some of the items for illicit sale and profit,
including: thermal sights, laser range finders, machine gun optics, close quarters
holographic sights, and tactical flashlights. On 3 January 2012, unit leaders
discovered and reported the theft to Criminal Investigation Command (CID) at
JBLM. Working with the Federal Bureau of Investigation and the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF), CID interviewed multiple
soldiers from 4-9 Infantry and soon discovered that appellant was an aspiring
weapons dealer in the Portland, Oregon, area.




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CHANDLER—ARMY 20120680

       On 4 January 2012, CID Special Agent (SA) DS interviewed appellant. Prior
to the interview, SA DS read appellant his Article 31, UCMJ, rights, which appellant
waived. Appellant told him that he was aware of the investigation because he was
friends with SPC WY, Company C’s armorer. Appellant told CID SPC WY had
informed him nearly $500,000 worth of military property was stolen. During this
interview, appellant did not tell CID that he had possessed or sold any of the stolen
property without proper authority. Also on this date, SA DS accompanied appellant
to his mother’s home in Oregon. Special Agent DS searched the home, but found no
stolen military property.

       On 6 January 2012, appellant went to the JBLM Trial Defense Services (TDS)
office and sought the advice of Captain (CPT) RS, a military defense counsel. 1
Captain RS “explained to appellant the importance of honesty, thoroughness, and not
concealing facts, so [CPT RS] could give [appellant] the best possible advice.”
Captain RS also provided appellant “with the customary defense-oriented advice
such as to not talk to anyone about the allegations . . . .” Appellant told CPT RS
that: he innocently possessed the missing military property; he agreed to pay PVT
Solt $3,000 for some of his property; PVT Solt placed multiple bags in his vehicle;
and he believed the items therein were mostly broken and further assumed they were
surplus. Appellant claimed that on 3 January 2012 he first began to realize they
were stolen.




1
 This and our opinion’s next two paragraphs are based on affidavits from
appellant’s defense counsel. Appellant’s affidavit does not conflict with those of his
defense counsel; in pertinent part, appellant writes:

             On 10 January 2012, I went to CID, on ad vice of counsel,
             and told them what I knew about equipment missing from
             the Charlie Company, 4/9 arms room. I offered to show
             CID where the equipment was, again on the advice of
             counsel, and I agreed to work with CID in a sting
             operation against Private Nicholas A. Solt.

             I cooperated with CID in the investigation into the stolen
             property on the advice of my defense counsel, [CPT RS].
             The CID agent I spoke to, [SA MM], informed me and my
             defense counsel that he had no authority to make a deal
             with me. Captain [RS] advised me to turn over the
             property and work with CID despite the fact that there was
             no deal for immunity.




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CHANDLER—ARMY 20120680

       Captain RS consulted with Major (MAJ) BG, his supervisory defense counsel,
and they both met with appellant, challenging his characterization of his
involvement as an innocent mistake. Appellant steadfastly claimed he did not know
PVT Solt had stolen the weapons accessories. Captain RS and MAJ BG considered
and discussed with appellant his options and the associated benefits and risks. They
discussed with appellant that potential benefits of cooperation included buttressing
his claim that he innocently and mistakenly possessed the property. But, they also
discussed with him the potential risks, including potential criminal char ges for
previously lying to CID; increased scrutiny for other misconduct; vulnerability to a
law enforcement investigation, which would discredit his claim of i nnocent and
mistaken possession; potential criminal charges for breaking into a government
facility and stealing military property; and vulnerability to revenge from PVT Solt.
They advised appellant to cooperate with CID and reveal PVT Solt’s involvement,
noting, among other things, that he would be vulnerable to prosecution for the
larceny even if he cooperated. Captain RS and MAJ BG told appellant that if he
approved, they would attempt to secure immunity in return for his cooperation .
Appellant expressed his understanding and told CPT RS and MAJ BG that he wanted
time to consider his options.

       On 9 January 2012, appellant again met with CPT RS, and they reviewed
appellant’s options. They also reviewed the following facts: multiple news outlets
had publicized the theft and law enforcement investigation; CID had seized
appellant’s phone, yielding contact information belonging to his acquaintances in
Oregon to whom he had sold or transferred the stolen property. 2 With these facts,
CPT RS consulted with MAJ BG again, and they maintained their advice that
appellant should cooperate with CID before they discovered hi s full involvement and
arrested him. Appellant informed CPT RS that he wanted immunity in exchange for
his cooperation. Captain RS and MAJ BG communicated with government counsel
and advocated in support of appellant’s wishes, but the government declined to
provide immunity or any other form of leniency. With MAJ BG’s concurrence and
believing that CID would soon arrest appellant anyway, CPT RS advised him to
cooperate with CID even without immunity, in order to maximize the chance that

2
  Between 7-9 January 2012, CID seized appellant’s phone and confirmed a
suspicion that he had contact with at least one known weapons d ealer in the
Portland, Oregon area, Mr. BB. Also on 9 January 2012, without CPT RS’s
knowledge at the time, CID interviewed SPC Greene, suspecting his involvement in
the optics theft. Denying any role in that larceny, SPC Greene instead confessed his
own conspiracy with appellant to steal MREs. With these developments, CID then
developed a “full-court press” investigative plan against appellant, primarily
suspecting him of stealing the weapons parts and surreptitiously placing a Global
Positioning System-enabled tracking device on his vehicle.




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CHANDLER—ARMY 20120680

authorities would believe his claims of innocence. Appellant chose to cooperate,
and MAJ BG planned for a meeting with CID the next day.

       On 10 January 2012, CID received a call from the TDS office, stating that a
soldier at the office—appellant—had information regarding the stolen property’s
location. Special Agent MM and SA AW met with appellant and CPT RS at the TDS
office. The special agents advised appellant of his Article 31 rights, and appellant
again waived his rights. Appellant told the agents that PVT Solt agreed to sell him
property for $3,000, that PVT Solt met him in their barracks parking lot and told him
to “take a walk,” and that, upon returning from this walk, appellant discovered the
property and a pair of bolt cutters in his vehicle. According to appellant, PVT Solt
entered the supply room and arms room office while wearing gloves, using a
duplicate key and “card[ing] a few locks . . . .” Appellant further told SA MM and
SA AW that he removed the property from their cases, placed the cases in tras h
bags, and discarded them in a dumpster, the location of which he claimed he could
no longer remember. Appellant said he placed the property in multiple bags, stor ed
four of them in Mr. WP’s apartment, and sold the remaining property to Mr. BB in
Tigard, Oregon. Acting with urgency because of the stolen property’s potential for
reaching the hands of bad actors, CID asked appellant to help recover it that day.
Appellant agreed, and he accompanied CID , ATF, and local police officers as they
recovered stolen property from Mr. WP and Mr. BB from 10-12 January 2012.
Among this property were MREs, which appellant and SPC Greene had stolen.

       On 11 January 2012, appellant agreed to operate as a CID “source,” assisting
its investigation without any promise of leniency or immunity. However, during the
nighttime hours of 16 January 2012 and acting outside the scope of his agreement
with CID, appellant abruptly entered SPC Greene’s barracks room and told SPC
Greene, “you fucked up.” Appellant was concerned with CID’s discovery of the
stolen MREs, and he accused SPC Greene of helping their investigation. He told
SPC Greene that if his cooperation resulted in appellant’s confinement, he would kill
him after release.

       On 17 January 2012, SA DS questioned appellant again . Appellant was
advised of his rights again and waived them. Appellant told SA DS that PVT Solt
approached him in December 2011 and offered to sell him military property for
$3,000. Appellant told SA DS that, on 16 December 2011, PVT Solt placed multiple
trash bags containing military property in appellant’s vehicle. Appellant transported
the property to Oregon and, he claimed, opened one of the bags to inspect its
contents. Appellant told SA DS that h e believed he saw “decommissioned aiming
points” in the bag and that he gave a bag of property to Mr. BB, a weapons and
weapon accessories dealer in the Portland area. Appellant claimed that he began to
realize that the property was not actually decommiss ioned, and that he stashed the
remaining bags of property at Mr. WP’s house in order to seek legal counsel and
arrange its return to Army control.



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CHANDLER—ARMY 20120680

       Later on 17 January 2012, while acting as a source and wearing a listening
device which CID monitored, appellant met with PVT Solt. He told PVT Solt that
he was attempting to negotiate the $3,000 purchase price with a downstream buyer
and, as an interim payment, gave PVT Solt $500 in controlled CID funds. The CID
agents then apprehended PVT Solt. After CID focused its investigation on
appellant, he helped recover 95% of the property.

      Appellant and PVT Solt stole nearly $634,000 worth of military property.
The adverse impact on training was palpable. Without the stolen weapons
accessories, Company C’s February 2012 collective training exercise at Yakima
Training Center was noticeably degraded and the unit did not have fully-equipped
weapons systems during its preparation for deployment to combat.

                         PROCEDURAL BACKGROUND

       The case was originally tried 9-11 July 2012. During an Article 39(a), UCMJ,
session to discuss findings instructions, d efense counsel requested the military judge
give the mistake of fact instruction appli cable to specific intent crimes, which only
required that the mistake be honest. See Dep’t of Army, Pam. 27-9, Legal Services:
Military Judges’ Benchbook [hereinafter Benchbook], para. 5-11-1 (1 Jan. 2010).
The military judge agreed with defense counsel’s argument that some evidence had
been raised to trigger a mistake of fact instruction for the offenses of conspiracy,
sale and wrongful disposition of military property, and larceny. However, the judge
mistakenly provided the mistake of fact instruction pertaining to general intent
offenses, which required that the mistake be both honest and reasonable. The
military judge instructed the panel that:

             With regard to the offenses of larceny, wrongful sale or
             disposition of military property, or conspiracy to commit
             these crimes the evidence has raised the issue of ignorance
             or mistake on the part of the accused concerning whether
             the military property he or his co-conspirator sold or
             disposed of was no longer usable or intended for military
             use.

             [T]he accused is not guilty of wrongful sale or disposition
             of military property or larceny if:

             One, he mistakenly believed that the property was no
             longer serviceable and usable as military property and had
             been abandoned; and

             Two, if such belief on his part was reasonable.




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CHANDLER—ARMY 20120680

(Emphasis added).

      The members determined beyond a reasonable doubt that appellant did not
honestly and reasonably believe the property was abandoned , given that they found
appellant guilty of a majority of the larceny and related specifications. With those
and other findings of guilty, the panel sentence d appellant as described above on
11 July 2012.

      When reviewing the record for authenticity, the military judge realized his
mistake of fact instruction was incorrect. The judge determined he should have
provided the panel with the mistake of fact instruction used when specific intent
offenses are at issue in accordance with United States v. Binegar, 55 M.J. 1
(C.A.A.F. 2001). On 4 April 2013, the military judge emailed the following
message, in pertinent part, to counsel:

             I received the Chandler Record on Tuesday.           After
             reviewing the record, it confirmed a sinking feeling I had
             that I provided members with an erroneous instruction on
             the defense of mistake of fact. Under [the] Binegar
             opinion, the instruction should have been an honest
             mistake, not honest and reasonable.       Since this was
             objected to, it amounts to plain error and . . . it is my
             responsibility under the Manual [for Courts-Martial] to
             direct a proceeding in revision.

             So, IAW [Rule for Courts-Martial (R.C.M.)] 1102 I am
             directing a post-trial session with the members to re-
             instruct them on the issue of mistake of fact IAW [the]
             Binegar case.

             ....

             My proposal will be to reinstruct the members and direct
             them to once again deliberate on findings in light of the
             corrected instruction.   I will also give counsel an
             opportunity to re-argue on findings in light of the
             corrected instruction. Obviously, if there are different
             findings, the members will also deliberate and vote on a
             new sentence, provided the accused is found guilty of any
             offense.

      On 1 May 2012, the I Corps and JBLM Chief of Criminal Law forwarded the
following message, in pertinent part, from the military judge to the panel members
and counsel:



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CHANDLER—ARMY 20120680

        Members,

        As the presiding judge, I have directed a proceeding in
        revision in the case of US v. Chandler. This is due to an
        error I made in instructing you, specifically on the defense
        of mistake of fact. As a result, I am going to provide you
        with a corrected instruction on the law, including the
        corrected instruction on the defense of mistake of fact.
        Counsel will then have an opportunity to argue the case
        again. You will deliberate again on your findings, vote
        and announce your findings in light of the corrected
        instructions.

        Please do not infer from my decision to conduct this
        proceeding that I expect your findings either to remain the
        same or change based on the process and revised
        instruction. The only purpose for this proceeding is to
        ensure you are correctly instructed on the law and that you
        base your decision on the law and evidence.

        During the proceedings, the transcribed record of trial will
        be available to you, along with copies of all the exhibits
        admitted during the trial. Realizing that it has been
        approximately 9 months since you have heard the evidence
        and made your original findings, I am attaching a
        transcript of the relevant portions of the trial and
        testimony of the witnesses and list of exhibits admitted,
        which you may wish to review as an aid in refreshing your
        memory as to the facts. I do not expect you to read this
        transcript in advance of the proceedings, but want to make
        it available to you in the event you wish to re -acquaint
        yourself with the evidence before Saturday’s session.

        I once again remind you of your original oath, which
        remains in effect. You may not discuss the case or issues
        related to it with anyone, not even among your fellow
        court members, until you are together in the deliberation
        room deliberating on findings.     Do no t conduct any
        research or consult any resource as to the law about the
        case. Have no contact with any of the witnesses or parties
        to the proceedings, including myself or the counsel. If
        you have questions, please hold them until we reassemble
        as a court-martial.




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CHANDLER—ARMY 20120680

       On 3 May 2013, trial defense counsel moved the military judge, in writing, to
enter findings of not guilty of the specifications affected by the erroneous mistake of
fact instruction, a rehearing on the sentence for the remaining specifications , or
alternatively, a mistrial. Defense counsel asserted, inter alia, the military judge had
no authority to order a post-trial session under R.C.M. 1102 for the purpose of
recalling the panel, instructing them again on findings, and directing them to
deliberate anew. The government neither objected nor sought to petition this court
to prevent such a proceeding.

       On 4 May 2013, the military judge conducted an Article 39(a), UCMJ, session
before recalling the panel. While the judge denied the defense’s motion for a
mistrial, he did not explicitly rule on the defense’s motion for findings of not guilty.
Defense counsel requested the military judge’s permission to voir dire the panel , but
the judge tacitly denied the request. He did, however, tell counsel that:

             [I]n the event there is a different finding, I will permit
             voir dire on the issue of whether members have been
             exposed to any additional information that might influence
             their impartiality with regard to sentence. I will also
             permit the accused to make an additional sworn or
             unsworn statement, should Specialist Chandler choose to
             do so.

             I have decided that, although technically not applicable, I
             will impose the R.C.M. 810(d) rule applicable to retrials
             and limit the maximum punishment to the sentence the
             accused received from this court-martial. I believe this
             would make the proceedings in revision fully consistent
             with R.C.M. 1102(c)(2) [sic] by preventing any possible
             increase in punishment of the accused.

      Later that morning, the military judge called the panel and, after stating he
had incorrectly instructed them the previous July, informed them that:

             [T]he government admitted a statement by the accused in
             which the accused indicated. . . an alleged co-conspirator,
             Private Solt, placed garbage bags of items in the accused’s
             vehicle and asked the accused to sell them. If that
             occurred and the accused honestly and mistakenly
             believed either the property was abandoned property or
             Private Solt was an owner of the property, even if not
             objectively reasonable, it is a complete defense to larceny
             and conspiracy to commit larceny.




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CHANDLER—ARMY 20120680

       The military judge then reiterated the substance of this instruction consistent
with the sample contained in paragraph 5 -11-1 of the Benchbook. He directed them
to deliberate and again return findings regarding Specifications 1 and 2 of Charge I
(conspiracies with PVT Solt to steal and sell military property), Specification 2 of
Charge II (wrongful disposition of weapons accessories and other military property
to Mr. BB), Specification 1 of Charge III (larceny of military property between 1
December and 3 January 2012) and the Specification of Charge IV (housebreaking,
“insofar as the acts are related to the conspiracy with Private Solt to commit
larceny.”).

      The panel deliberated and returned findings of guilty to each offense,
excepting several words from Specification 2 of Charge I. 3 Though the findings
were not identical to those announced at the original trial, the military judge
suggested that the panel’s findings did not require new sentencing proceedings.
Both trial counsel and defense counsel agreed.

       Before adjournment, defense counsel requested the military judge reconsider
the 3 May 2013 motion for findings of not guilty. The military judge stated h e
would reconsider the motion. While the record does not contain his reconsidered
decision, it is plain the military judge did not resolve the issue in appellant’s favor.

                                LAW AND ANALYSIS

                  Conflict-Free and Effective Assistance of Counsel

       Appellant asserts his defense counsel was ineffective by advising him to
cooperate with CID without first securing an immunity deal. Appellant also asserts
he was “deprived of his right to conflict -free counsel” because after defense counsel
rendered the “ill-advised and tactically nonsensical” advice, “counsel [was]
effectively unable to object to any of the resulting evidence” during trial. We
disagree on both grounds. 4

3
 Specification 2 of Charge I alleged, in relevant part, that in order to effect the
object of the conspiracy between PVT Solt and appellant (i.e., the sale of military
property of a value of more than $500), “the s aid Private Solt and the said Specialist
Chandler did steal military property and transport the said property to Oregon.” The
panel found appellant guilty of Specification 2 of Charge I, “except the words ‘the
said Private Solt’ and ‘steal military proper ty and.’”
4
  We need not order a post-trial evidentiary hearing in this case based on our
application of the third factor in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997): “if the affidavit is factually adequate on its face to state a claim of l egal error

                                                                          (continued . . .)


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CHANDLER—ARMY 20120680

        We evaluate appellant’s claim of ineffective assistance of counsel under the
standard in Strickland v. Washington, 466 U.S. 668 (1984). First, appellant must
show counsel’s performance was deficient , such that the errors were “so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. Second, appellant must demonstrate that “the deficient
performance prejudiced the defense” in that he was “deprive[d] . . . of a fair trial, a
trial whose result is reliable.” Id. On appeal, there is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id. at 689.

       Appellant urges us to conclude that his defense counsel’s advice to cooperate
with CID was per se deficient, therefore, tainting subsequent representation with
conflict. However, appellant’s logic is flawed in this case, where he fails to
demonstrate his defense counsel’s advice was somehow defective or substantially
departed from that which a rational counsel would give “under prevailing
professional norms.” Id. at 688. By the time appellant spoke to defense counsel, he
had already placed himself in a difficult position. Appella nt further complicated
matters by omitting critical facts. Appellant told defense counsel he had been in
possession of stolen property and that the law enforcement investigation was closing
in on him. Appellant and his defense counsel were faced with th e questions of
“when and how”—importantly, not “if”—government investigators would learn that
he was involved with the stolen property. Based on what he told his counsel,
appellant’s only real—albeit unlikely, but not fanciful—chance to exonerate himself
was to proactively approach law enforcement representatives and tell them his side
of the story, which he repeatedly asserted was true.

       “A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689 (emphasis added). Trial defense counsel and his
supervisor spent substantial time analyzing appellant’s options in the midst of a
decidedly non-static situation. Indeed, a rapidly-developing, multi-agency law
enforcement investigation was underway and increasingly focused on appellant. His
counsel provided multiple courses of action, war-gaming them against the planning
assumption he would not receive immunity, as well as against the planning
assumption he would. They described appellant’s options with him, along with the


(. . . continued)
and the [g]overnment . . . offers an affidavit that expressly agrees with those facts,
the court can proceed to decide the legal issue on the basis of those uncontroverted
facts.” Appellant’s post-trial affidavit does not conflict with those su bmitted by his
defense counsel.




                                          11
CHANDLER—ARMY 20120680

related risks and benefits. Appellant evinced his understanding and deliberated on
his various options, both with and without his counsel; he did not make his decision
hastily. At appellant’s direction and before hi s decision to cooperate, trial defense
counsel and his supervisor attempted to obtain government leniency. Ultimately,
and understanding the government had denied his bid for leniency, appellant
concurred with his defense counsel’s advice to cooperate anyway, and he personally
decided to do so. Appellant knowingly, intelligently and voluntarily chose his
course of action after receiving thorough and competent advice from his defense
counsel. In summary, appellant has fallen far short of establishing any deficient
performance by his defense counsel.

       We also recognize the possibility that a counsel’s personal interests may so
conflict with those of his client to create an impermissible conflict of interest and,
depending on the circumstances, deprive him o f effective assistance of counsel. See
United States v. Saintaude, 61 M.J. 175 (C.A.A.F. 2005); United States v. Cain,
59 M.J. 285 (C.A.A.F. 2004). However, under the facts of this case, we find no
evidence to support the allegation that defense counsel was in any way conflicted
from representing appellant at trial.

                                  Post-trial Session

      Appellant’s assignment of error alleging the proceeding in revision was
improper implicates various statutes and procedural rules, including Article 60,
UCMJ; Article 63, UCMJ; R.C.M. 1102(b)(1); and R.C.M. 924.

       Within limits, Article 60(e), UCMJ, authorizes the convening authority to
order certain post-trial proceedings:

             (e)(1) The convening authority or other person taking
             action under this section, in his sole discre tion, may order
             a proceeding in revision or a rehearing.

             (2) A proceeding in revision may be ordered if there is an
             apparent error or omission in the record or if the record
             shows improper or inconsistent action by a court -martial
             with respect to the findings or sentence that can be
             rectified without material prejudice to the substantial
             rights of the accused.    In no case, however, may a
             proceeding in revision—

                     (A) reconsider a finding of not guilty of any
             specification or a ruling which amounts to a finding of not
             guilty;




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CHANDLER—ARMY 20120680

                    (B) reconsider a finding of not guilty of any
             charge, unless there has been a finding of guilty under a
             specification laid under that charge, which sufficiently
             alleges a violation of some article of this chapter; or

                   (C) increase the severity of some article of the
             sentence unless the sentence prescribed for the offense is
             mandatory.

             (3)    A rehearing may be ordered by the convening
             authority or other person taking action under this section
             if he disapproves the findings and sentence and states the
             reasons for disapproval of the findings. If such person
             disapproves the findings and sentence and does not order a
             rehearing, he shall dismiss the charges. A rehearing as to
             the findings may not be ordered where there is a lack of
             sufficient evidence in the record to support the findings.
             A rehearing as to the sentence may be ordered if the
             convening authority or some other person taking action
             under this subsection disapproves the sentence.

       Article 63, UCMJ, lists several procedures that must be followed when
holding a rehearing. One of the requirements is that a rehearing “shall take place
before a court-martial composed of members not members of the court -martial which
first heard the case.”

      Rule for Courts-Martial 924 provides that, in a trial by members, a finding
may only be reconsidered if prior to announcement of the findings in open court, a
member proposes reconsideration and the panel properly votes upon the proposal for
reconsideration.

       Rule for Courts-Martial 1102, “Post-trial sessions,” largely mirrors Article
60(e)(1)-(2), UCMJ, stating, “[p]roceedings in revision may be directed [by the
military judge or the convening authority] to correct an apparent error, omission, or
improper or inconsistent action by the court-martial, which can be rectified by
reopening the proceedings without material prejudice to the accused” and listing the
same prohibited actions during proceedings in revision. R.C.M. 1102(b)(1); R.C.M.
1102(a) (post-trial sessions “In general.”); R.C.M. 1102(c) (“Matters not subject to
post-trial sessions.”). Rule for Courts-Martial 1102(e)(2) also details the procedure
for post-trial hearings, including actions a judge must take :

             The military judge shall take such action as may be
             appropriate, including appropriate instructions when
             members are present. The members may deliberate in



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CHANDLER—ARMY 20120680

                 closed session, if necessary, to determine what corrective
                 action, if any, to take.

       In this case, the military judge ordered a proceeding in revision in order to
correct his previous error in instructing the panel on a defense raised by the
evidence in the case. United States v. Gleason, 43 M.J. 69 (C.A.A.F. 1995), is most
apposite to appellant’s case and resolves in his favor whether the subject of this
post-trial proceeding was lawful. There, an officer panel convicted appellant of,
among other offenses, solicitation to commit murder. Id. at 71. The military judge
erred in his sentencing instructions with respect to potential forfeiture of pay
consequences. Id. Approximately six weeks later, without any order from the
convening authority, the military judge convened a “rehearing on the sentence” and
provided correct instructions to the same panel, which deliberated again and
returned the same sentence. Id. Holding that the post-trial session was improper,
our superior court wrote:

                 The sentence rehearing apparently was conducted before
                 the same ten members who participated in the original
                 trial. . . . We note that Article 63, UCMJ, 10 U.S.C. § 863
                 (1983), prohibits the members who sat in the original
                 proceeding from sitting on a rehearing. On the other hand,
                 if this proceeding is treated as a proceeding in revision,
                 there is no problem in having the same members.
                 However, the purpose of the proceeding . . . was to correct
                 an error in the sentencing instructions, which is not a
                 proper purpose for a proceeding in revision. See United
                 States v. Roman, 22 U.S.C.M.A. 78, 81, 46 C.M.R. 78, 81
                 (1972). In view of our disposition of this case we need
                 not determine the validity of the rehearing on sentence. If
                 it was invalid, the original proceeding would be reinstated,
                 so a sentence existed which gave the Court of Military
                 Review jurisdiction. See Art. 66(b)(1), UCMJ, 10 U.S.C.
                 § 866(b)(1).

Id. at 71 n.4.

      Roman involved similar facts to Gleason. During authentication of the
record, the military judge discovered he had omitted required sentencing instructions
regarding voting procedures. Roman, 22 U.S.C.M.A. at 79, 46 C.M.R. at 79. Two
weeks after adjournment, the judge reconvened the court-martial to hold a
proceeding in revision and, over defense objection, provided the panel with the
omitted sentencing instructions. Id. at 79, 46 C.M.R. at 79. The panel sentenced
appellant to substantially the same sentence. Id. at 79, 46 C.M.R. at 79. In Roman,
the Court of Military Appeals discussed the actions that a court may take in a case



                                             14
CHANDLER—ARMY 20120680

after it reconvenes for a proceeding in revision: “[w]hat is intended to be
accomplished in revision proceedings is . . . correction of the record to reflect
unintended omissions, to clarify ambiguities, and to correct improper or illegal
sentence announcements, the alteration of which does not materially prejudice the
substantial rights of the accused.” Id. at 81, 46 C.M.R. at 81. For example, the
court cited to various cases allowing proceedings in revision to ascertain that an
accused was fully advised on the record of h is right to counsel or to correct
erroneous announcement of a sentence when it was clear the omissions occurred
through clerical and verbal errors. Id. at 81, 46 C.M.R. at 81 (citing United States v.
Barnes, 21 U.S.C.M.A. 169, 170, 44 C.M.R. 223 (1972); United States v. Liberator,
14 U.S.C.M.A. 499, 34 C.M.R. 279 (1964); United States v. Robinson, 4 U.S.C.M.A.
12, 15 C.M.R. 12 (1954)). However, the court distinguished a correction of
sentencing instructions, noting that it was “substantially different from the type of
corrective action appropriate in revision proceedings” and created the strong
possibility of prejudice to an appellant because the same panel that already
sentenced appellant is unlikely to fairly reconsider t he sentence. Id. at 81,
46 C.M.R. at 81. The court ultimately held:

             A fault in instruction is not an error or omission in the
             record but . . . a substantive error in the trial . . . that . . .
             cannot be corrected by a proceeding in revision. In these
             circumstances, we conclude that no authority existed for
             the attempt to cure the presentencing instructional error by
             proceedings in revision.

Id. at 81, 46 C.M.R. at 81 (omissions in original) (internal quotations marks and
citations omitted). Our predecessor court has also stated that proceedings in
revision cannot be used “to correct a flawed instruction to the members.” United
States v. Jackson, 34 M.J. 1145, 1151 (A.C.M.R. 1992) (citing Roman, 22
U.S.C.M.A. 78, 46 C.M.R. 78).

       We can think of no matters more substantive than the defenses potentially
applicable to a servicemember facing court -martial. Instead of resolving an
administrative matter, the post-trial proceeding here more closely resembled a
rehearing, but with the same panel—which the judge had no authority to order. The
military judge likely understood that his approach was somewhat akin to a rehearing,
as he invoked the sentence limitations provisions of R.C.M. 810 (d). The hearing
could also be viewed as a flawed attempt at reconsideration of findings, for which
R.C.M. 924 governs. Contrary to R.C.M. 924, the proceeding occurred after the




                                            15
CHANDLER—ARMY 20120680

panel unambiguously announced findings on 10 July 2012, and it occurred at the
military judge’s direction instead of a panel me mber’s proposal. 5

       We endorse initiative-taking by military judges. Such an approach is crucial
in our justice system, which favors resolution of disputed issues at trial. We also
understand the desire for quickly reaching a solution in the field, instea d of waiting
for a convening authority or an appellate court to order the same solution. However,
our system’s range of post-trial remedies does not include remand to an original
finder of fact in order to cure instructional error. This limitation is understandable,
since one cannot reasonably expect panel members to set aside their original
findings and deliberate anew. Put another way, as the post -trial proceeding began in
this case, it was far more likely that the panel would simply validate its earli er
findings of guilt; we cannot affirm such a process. Instead, we conclude the military
judge erred in directing a proceeding in revision for the purposes of correcting
erroneous instructions and directing the same panel to deliberate again. We regard
this proceeding as void ab initio under the circumstances and need not address
additional procedural peculiarities, including the military judge ’s emailing a
redacted record of trial to the panel and his denying the defense request to voir dire
the panel.

                              Mistake of Fact Instruction

       The post-trial proceeding is a nullity. Following the logic in Gleason, we are
left with the July 2012 findings requiring Article 66, UCMJ, review. 6



5
 See also United States v. Barrett, ACM 35790, 2006 CCA LEXIS 39 (A.F. Ct.
Crim. App. 28 Feb. 2006), pet. granted, 64 M.J. 87-88 (C.A.A.F. 2006), aff’d in part
and rev’d in part, 64 M.J. 307 (C.A.A.F. 2006) (summ. disp.).
6
  However, this court “may act only with respect to the findings . . . as approved by
the convening authority.” UCMJ art. 66(c). When a convening authority does not
expressly address the findings in his action, a service court “may presume that the
convening authority approved the findings reached by the court -martial and reported
in the [staff judge advocate’s] post-trial recommendation, absent material evidence
to the contrary.” United States v. Alexander, 63 M.J. 269, 275 (C.A.A.F. 2006).
The recommendation in this case contained the result of trial as an enclosure. The
result of trial reflected, inter alia, the finding of guilty of Specification 2 of Charge
I (conspiracy with PVT Solt to sell military property) from the proceeding in
revision, wherein the panel found appellant not guilty of certain excepted words.
Therefore, this court presumes the convening authority implicitly approved the
finding of guilty of Specification 2 of Charge I as announced in the proceeding in

                                                                         (continued . . .)


                                           16
CHANDLER—ARMY 20120680

       At trial, the government introduced evidence of appellant’s statement to CID
that he believed some of the stolen property was actually abandoned or belonged to
PVT Solt. Appellant’s statement raised the defense of mistake of fact , thus, the
military judge was required to instruct the panel on this defense. R.C.M. 920(e)(3);
United States v. DiPaola, 67 M.J. 98, 100-01 (C.A.A.F. 2008). The correct mistake
of fact instruction was whether appellant honestly believed that the property in
question was abandoned or otherwise belonged to PVT Solt, not whether his belief
was honest and reasonable. Binegar, 55 M.J. 1.

       Providing the panel with an incorrect instruction as to an affirmative defense
is an error of constitutional magnitude. We must now determine whether the error
was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24
(1967); Neder v. United States, 527 U.S. 1, 18 (1999); United States v. McDonald,
57 M.J. 18, 20 (C.A.A.F. 2002). We are convinced beyond a reasonable doubt that,
absent this error, the panel would have found appellant guilty of the affected
specifications. See United States v. Baxter, 72 M.J. 507, 513 (Army Ct. Crim. App.
2013) (citing DiPaola, 67 M.J. at 102). In reaching this conclusion, we find no
reasonable possibility that the incorrect instruction might have “contribute[d] to the
[appellant’s] conviction” for the reasons outlined below. United States v. Davis,
73 M.J. 268, 271 (C.A.A.F. 2014).

      Indeed, the evidence at trial did not focus on whether appellant reasonably
believed the property was abandoned or belonged to PVT Solt. Instead, the slight
evidence of mistake in this case was immediately subject to overwhelming questions
about whether such a purported mistake was honest. The evidence of appellant’s
knowledge that the property actually belonged to the Army and that the Army had
not abandoned the property was overwhelming.

        Appellant was an armorer and it is reasonable to conclude he was familiar
with accountability of weapons accessories. The optics—whose collective value
was over $600,000—were sensitive items requiring storage in a secure arms room
(or, in this case, an armorer’s office). Appellant described PVT Solt’s surreptitious
entry into the armorer’s office to take the weapons acce ssories. Appellant then
removed the stolen optics from their cases, placed them in garbage bags, and
discarded the cases. The stolen accessories ultimately recovered were functional,
not broken.




(. . . continued)
revision. We do not address the jeopardy issues relative to a finding of not guilty
after such an erroneous proceeding.




                                          17
CHANDLER—ARMY 20120680

        When first interviewed, appellant attempted to deceive CID by facilitating a
futile search of his mother’s home, knowing that he had sold or transferred the
optics to Mr. BB and Mr. WP. We acknowledge appellant’s argument that his
behavior during his CID-monitored conversation with PVT Solt was little more th an
a government-concocted ruse, and we disagree. His words and actions during that
encounter clearly referred to their pre-existing conspiracy to steal and sell military
property. Despite the instructional error, the panel’s findings on 10 July 2012 are
reliable.

                     Consolidation of Conspiracy Specifications

       In Specifications 1 and 2 of Charge I, appellant was charged with two separate
conspiracies with PVT Solt: the first alleged a conspiracy to steal military property
of a value of more than $500; the second alleged a conspiracy to sell military
property of a value of more than $500.

       When an appellant enters into a single agreement to commit multiple offenses,
it ordinarily constitutes a single conspiracy. Braverman v. United States, 317 U.S.
49, 53 (1942) (holding that it is the “agreement which constitutes the conspiracy . . .
one agreement cannot be taken to be several agreements and hence several
conspiracies because it envisages the violation of several statutes rather than one .”);
United States v. Pereira, 53 M.J. 183, 184 (C.A.A.F. 2000); United States v. Mack,
58 M.J. 413, 418 (C.A.A.F. 2003).

      While not raised by appellant, our review of the evidence at trial leads us to
conclude that only one agreement, and therefore one conspiracy, existed between
appellant and PVT Solt, the objects of which were to both steal and sell military
property of a value of over $500. Accordingly, we will consolidate Specifications 1
and 2 of Charge I in our decretal paragraph and will reassess the sentence.

                                   Post-trial Delay

       In his Grostefon matters, appellant personally complains of excessive delay
during the post-trial processing of his case and requests relief in the form of
additional confinement credit.

       Appellant was sentenced on 11 July 2012. The record of trial was 745 pages
in length. On 25 January 2013, 198 days after completion of appellant’s trial,
defense counsel first received the record for review . Defense counsel completed his
errata on 28 March 2013, 62 days later. The military judge received the record of
trial on 2 April 2013, 5 days later. The post-trial hearing occurred 4 May 2013,




                                          18
CHANDLER—ARMY 20120680

32 days later. 7 The military judge authenticated the record of trial on 16 May 2013 .
The staff judge advocate’s recommendation was signed on 17 June 2013, 32 days
after authentication. Appellant was served the record of trial and recommendation
on 27 June 2013. After requesting a 20-day extension of time to submit R.C.M.
1105 matters, appellant provided his submission on 26 July 2013, 29 days after
receiving the record and recommendation. In his post-trial matters, appellant
complained that his due process right to speedy post -trial review was violated.
While the government’s explanation noted the addendum was “forwarded to [the]
Chief, Criminal Law Division” on 6 August 2014, 11 days after receipt of
appellant’s post-trial matters, the addendum was not signed until 4 September 2013,
29 days later. The addendum contained the following advice and recommendation
from the staff judge advocate:

                I disagree with defense’s allegations of legal error and of
                prejudice to the accused caused by post trial delay. While
                I disagree with these allegations, I recommend you grant
                the accused ten (10) months clemency.

       The same day, the convening authority approved the staff judge advocate’s
recommended ten months clemency and took action in appellant’s case, 420 days
after announcement of sentence.

       We review de novo appellant’s claim that he has been denied his due process
right to a speedy post-trial review. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006). Our superior court has adopted the four factor test of Barker v.
Wingo, 407 U.S. 514, 530 (1972) to determine whether a due p rocess violation has
occurred: (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. Id.

       There is a presumption of unreasonable delay when more than 120 da ys have
elapsed between completion of an appellant’s trial and action by the convening
authority. Id. at 142. This presumption triggers analysis of the remaining three
factors. Id. In this case, the total post-trial processing time from sentence to act ion
was 420 days. The government provided a contemporaneous explanation for the
delay. Considering the time taken for defense counsel to review the record for errata
and the additional 20-day extension for appellant to submit R.C.M. 1105 matters,
82 of the 420 days are attributable to appellant. The remaining 338 days rest




7
    Including the post-trial hearing, the record of trial was 820 pages in length.




                                             19
CHANDLER—ARMY 20120680

squarely on the government’s shoulders, and it offers no persuasive reason to justify
this passage of time. 8 We resolve the first and second factors in appellant’s favor.

       Turning to the third factor, while appellant complained of the unreasonable
post-trial processing in his case, he waited to do so until he submitted his R.C.M.
1105 matters, over one year after sentencing. This was the first time that appellant
made any assertion of his right to speedy post -trial review. The untimely demand
weighs slightly against appellant. See id. at 138; see also Canchola, 64 M.J. at 246.
Turning to the fourth factor, upon review of the record, we find no prejudice and,
under Moreno, hold appellant’s due process right to speedy post -trial review was not
violated.

       However, even when there is no showing of prejudice, we may nonetheless
find a due process violation if “in balancing the other three factors, the delay is so
egregious that tolerating it would adversely affect the public’s perception of the
fairness and integrity of the military justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the lengthy delay, the
government’s explanation of the delay, and appellant’s less than timely assertion of
his right to speedy post-trial review, we hold that the post -trial delay in this case is
not so egregious as to find a due-process violation under Toohey. 9

       Finally, we must also review the appropriateness of appellant’s sentence in
light of the lengthy post-trial processing. See UCMJ art. 66(c); United States v.

8
  In the contemporaneous memorandum, the government explained, inter alia, that
the lengthy transcription period was due to the high volume of cases that were tried
within the jurisdiction with only three court reporters, one of whom temporarily left
JBLM to attend the Advanced Leader Course and another of whom was moved from
JBLM to a different duty station. “[A] general reliance on . . . manpower constraints
will not constitute reasonable grounds for delay nor cause this factor to weigh in
favor of the [g]overnment.” United States v. Canchola, 64 M.J. 245, 247 (C.A.A.F.
2007) (per curiam).
9
 Even assuming a due process violation under Toohey, we would find the error
harmless beyond a reasonable doubt. See United States v. Arriaga, 70 M.J. 51, 56
(C.A.A.F. 2011) (citing United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)).
Finally, we would also find that relief is not warranted under the facts of this case.
See United States v. Rodriguez-Rivera, 63 M.J. 372, 386 (C.A.A.F. 2006) (even
assuming a due process violation for post -trial delay, “to fashion relief that would be
actual and meaningful in this case would be disproportionate to the possible harm
generated from the delay. Accordingly, we conclude that no additional relief is
appropriate or warranted in this case.”).




                                            20
CHANDLER—ARMY 20120680

Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ,
service courts are] required to determine what findings and sen tence ‘should be
approved,’ based on all the facts and circumstances reflected in the record, including
the unexplained and unreasonable post -trial delay.”). Upon review of the entire
record, to include the lengthy post-trial delay, the government’s explanation, the
lack of timely demand for speedy post-trial review by appellant, the nature and
seriousness of appellant’s offenses, the dismissal of Specification 2 of Charge I and
the resulting reassessed sentence stated in our decretal paragraph, we find
appellant’s reassessed sentence is appropriate. See United States v. Garman, 59 M.J.
677, 683 (Army Ct. Crim. App. 2003) (holding that the post-trial delay “was not so
egregious under the totality of the circumstances as to render appellant’s otherwise
appropriate sentence inappropriate.”).

                                   CONCLUSION

      Specifications 1 and 2 of Charge I are consolidated into Specification 1 of
Charge I as follows:

             In that Specialist (E-4) Joshua D. Chandler, U.S. Army,
             did, at or near Joint Base Lewis-McChord, Washington
             between on or about 1 December 2011 and on or about
             3 January 2012, conspire with Private (E -1) Nicholas A.
             Solt to commit offenses under the Uniform Code of
             Military Justice, to wit: larceny and sale of military
             property of a value of more than $500, the property of the
             United States, and in order to effect the object s of the
             conspiracy the said Private Solt and the said Specialist
             Chandler did steal military property and the said Specialist
             Chandler did transport the said property to Oregon.

       The finding of guilty of Specification 1 of Charge I, as consolidated, is
AFFIRMED. The finding of guilty of Specification 2 of Charge I is set aside and
that specification is dismissed. The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305, 307-08 (C.M.A. 1986), we are confident the panel would have adjudged a
sentence at least as severe as the approved sentence absent the errors described
above. The sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered restored.

      Senior Judge LIND and Judge KRAUSS concur.




                                          21
CHANDLER—ARMY 20120680

                         FOR
                         FOR THE
                             THE COURT:
                                 COURT:




                         MALCOLM H. SQUIRES, JR.
                         MALCOLM
                         Clerk       H. SQUIRES, JR.
                               of Court
                         Clerk of Court




                           22
