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

                               No. ACM 39578
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                        Daniel C. MORTON, II
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 24 January 2020
                          ________________________

Military Judge: Joseph S. Imburgia.
Approved sentence: Bad-conduct discharge, confinement for 45 days, and
reduction to E-1. Sentence adjudged 22 August 2018 by GCM convened
Joint Base Pearl Harbor-Hickam, Hawaii.
For Appellant: Captain M. Dedra Campbell, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Anne
M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and RAMÍREZ, Appellate Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Senior
Judge Mink and Judge LEWIS joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                            ________________________

RAMÍREZ, Judge:
   A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of one specification of wrongful use of cocaine on divers
occasions, in violation of Article 112a, Uniform Code of Military Justice
                    United States v. Morton, No. ACM 39578


(UCMJ), 10 U.S.C. §912a. 1 He was found not guilty of one specification of
wrongful use of 3,4-methylenedioxymethamphetamine. The court-martial sen-
tenced Appellant to a bad-conduct discharge, confinement for 45 days, and re-
duction to the grade of E-1. The convening authority approved the adjudged
sentence.
    Appellant raises one issue on appeal: whether the military judge’s admis-
sion of Prosecution Exhibit 6 during the pre-sentencing phase of the court-mar-
tial constituted plain error. 2 Additionally, in a footnote Appellant notes an is-
sue concerning his clemency request, but concedes that he was not materially
prejudiced. We find no prejudicial error in any of the raised or non-raised is-
sues and affirm. 3

                                  I. BACKGROUND
   During the trial, Appellant stipulated that he tested positive for 3,4-meth-
ylenedioxymethamphetamine on one occasion, and that he tested positive for
cocaine on four occasions. The Defense attacked the mens rea required to be
found guilty; however, officer members found Appellant guilty of the wrongful
use of cocaine on divers occasions.
    During the pre-sentencing phase of the court-martial, the Prosecution of-
fered four exhibits which consisted of Appellant’s personal data sheet; enlisted
performance reports; two records of non-judicial punishment; and the exhibit
at issue (Prosecution Exhibit 6), a letter of admonishment (LOA), which con-
sisted of 22 pages. The actual exhibit begins with the LOA itself, which is dated
13 May 2016. It also includes Appellant’s response to the LOA. The remaining




1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2016
ed.).
2Appellant raises this issue, personally, pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
3Although not raised by the Appellant, we also noted and considered that, contrary to
R.C.M. 1103(i)(1)(B), the record of trial did not include a Defense’s Certificate of Re-
view and therefore there is no evidence that it was sent to the trial defense counsel for
examination prior to authentication. However, there is nothing in the record to indi-
cate that allowing prior defense review would have resulted in unreasonable delay and
there is no indication that the record transcript is not accurate. The Defense had the
authenticated record in time for review in connection with the staff judge advocate
recommendation, made no objection, submitted clemency, and raised no error with the
accuracy of the record of trial to the convening authority. Accordingly, we find no prej-
udice to Appellant.


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                   United States v. Morton, No. ACM 39578


19 pages of Prosecution Exhibit 6 include a notification to Appellant’s com-
mander that Appellant was past due on his Military STAR Card payment and
indebted to the Army and Air Force Exchange Service (AAFES), a report show-
ing money due on Appellant’s government travel card (GTC), and an account
reinstatement form with Appellant’s GTC statement for the period of 21 Jan-
uary 2017 through 22 February 2017.
    At the pre-sentencing hearing, the Government offered Prosecution Exhibit
6. The military judge reviewed the document, confirmed that it was the same
document that had previously been included in the record as Appellate Exhibit
XV, then gave trial defense counsel an opportunity to object. Initially trial de-
fense counsel objected on cumulative grounds; however, the record is clear that
trial defense counsel thought it was duplicative of a different exhibit. After the
military judge discussed the contents of the exhibit, the trial defense counsel
stated, “I’m sorry; that’s my mistake. No objection, Your Honor.”
   With no objection from the Defense, Prosecution Exhibit 6 was admitted,
the Government and Defense admitted the rest of their sentencing exhibits,
both sides made sentencing arguments, and the members deliberated.
    As previously indicated, the members sentenced Appellant to a bad-conduct
discharge, confinement for 45 days, and reduction to the grade of E-1. Appel-
lant now claims that the military judge’s admission of Prosecution Exhibit 6
during the pre-sentencing phase of the court-martial constituted plain error.

                                 II. DISCUSSION
A. Law
    While this Court reviews a military judge’s decision to admit or exclude
evidence for an abuse of discretion, United States v. Erikson, 76 M.J. 231, 234
(C.A.A.F. 2017) (citation omitted), when an appellant does not raise an objec-
tion to the admission of evidence during trial, this court first determines
whether the appellant waived or forfeited that objection. United States v.
Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (citation omitted). Whether an accused
has waived or instead forfeited an issue is a question of law this court reviews
de novo. United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (citation
omitted).
    “[F]orfeiture is the failure to make the timely assertion of a right . . . .” Id.
(quoting United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). We review
forfeited issues for plain error. Id. (citing Gladue, 67 M.J. at 313). To prevail
under a plain error analysis, an appellant must show (1) there was error; (2)
which was plain or obvious; and (3) the error materially prejudiced the appel-
lant’s substantial right. United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F.
2007) (citations omitted).

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                   United States v. Morton, No. ACM 39578


   “Waiver,” on the other hand, “is the intentional relinquishment or aban-
donment of a known right.” Id. (quoting Gladue, 67 M.J. at 313). With waiver,
there is no error to correct on appeal. Id. (citing United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009)).
   “A forfeiture is . . . an oversight.” United States v. Campos, 67 M.J. 330, 332
(C.A.A.F. 2009) (quoting United States v. Cook, 406 F.3d 485, 487 (7th Cir.
2005)). “[A] waiver is a deliberate decision not to present a ground for relief
that might be available in the law.” Id.
B. Analysis
    Appellant asserts the plain error analysis applies, but does not mention
either forfeiture or waiver. Appellant claims the military judge committed
plain error because Prosecution Exhibit 6 did not fall under Rule for Courts-
Martial (R.C.M.) 1001(b)(2) or R.C.M. 1001(b)(4), and it consisted of more than
just an LOA. The Government argues that waiver applies because Appellant
waived the issue when trial defense counsel affirmatively stated on the record
that the Defense had no objections to the proffered Prosecution Exhibit 6.
    Based on the record before this Court, the Defense waived this issue. This
Court relies on five, non-exhaustive factors when considering whether waiver
has been clearly established and there is an intentional relinquishment or
abandonment of a known right or privilege. United States v. Monarque, No.
ACM S32412, 2017 CCA LEXIS 245, at *10 (A.F. Ct. Crim. App. 6 Mar. 2017)
(unpub. op.). Those factors include “(1) whether the right was a known right or
privilege at the time of the waiver; (2) whether the waiver was part of the de-
fense’s trial strategy; (3) whether the defense had knowledge of the proffered
evidence and had time and opportunity to review it; (4) whether the defense
was given an opportunity to object to the admissibility of the evidence; and (5)
whether the appellant now raises ineffective assistance of counsel with regard
to the issue of waiver.” Id.
    Here, (1) the military judge asked the Defense if there was an objection,
therefore, the Defense knew any objection was a known right; (2) there is no
evidence before the court to determine whether the waiver was part of the De-
fense’s trial strategy, but the record reflects the Defense thought about the
objection as well as articulated an initial objection, stating “Your Honor, the
only objection that we have is it’s sort of cumulative because it seems that he
received an LOA for the same incident that he received an Article 15 for; the
initial one, where they charged him with a violation of Article 123a[, UCMJ]”
before changing his mind, explaining, “I’m sorry; that’s my mistake. No objec-
tion, Your Honor[;]” and (3) based on the record of trial, it is clear that the
Defense had knowledge of the proffered evidence as it was also an appellate




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                   United States v. Morton, No. ACM 39578


exhibit (Appellate Exhibit XV) and had time and opportunity to review it. Spe-
cifically to this third factor, prior to calling Appellant to testify, trial defense
counsel requested a hearing outside the presence of the members during an
Article 39(a), UCMJ, 10 U.S.C. § 839, session. At the Article 39(a) session, trial
defense counsel objected to potential cross-examination of Appellant dealing
with the underlying information in Appellate Exhibit XV/Prosecution Exhibit
6 based on Mil. R. Evid. 404(b) and Mil. R. Evid. 403. The record was clear that
the Defense had received the documents as part of discovery, which prompted
the trial objection. As for factor (4), the record is clear that the military judge
gave the Defense an opportunity on the record to object to the admissibility of
the evidence; and (5), Appellant does not raise ineffective assistance of counsel
with regard to the issue of waiver.
    The Defense not only declined to object upon receiving notice of the exhibit
for sentencing purposes, but trial defense counsel affirmatively told the mili-
tary judge the Defense did not object to the evidence. The United States Court
of Appeals for the Armed Forces has explained that under the ordinary rules
of waiver, an appellant’s affirmative statements that he had no objection to the
admission of evidence “operate[s] to extinguish his right to complain about the
evidence’s admission on appeal.” Ahern, 76 M.J. at 198 (citing Campos, 67 M.J.
at 332–33) (“finding waiver where appellant stated that he had ‘no objection’
to the admission of testimony”) (additional citation omitted).
    This court acknowledges that whether a right is waivable; whether an ap-
pellant must personally participate in the waiver; whether procedures are re-
quired for waiver; and whether an appellant’s choice must be particularly in-
formed or voluntary, will depend on the right at stake. Id. at 197 (citing United
States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011)).
    Under the particular facts of this case, we find the Defense’s affirmative
decision not to object to the Government’s exhibit is a situation where the or-
dinary rules of waiver apply. As such, the Defense waived this issue. Sepa-
rately, we recognize our authority under Article 66, UCMJ, 10 U.S.C. § 866, to
pierce a waiver in order to correct a legal error. See United States v. Hardy, 77
M.J. 438, 443 (C.A.A.F. 2018). We decline to exercise our Article 66(c) authority
to pierce this waived issue.

                                III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




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             United States v. Morton, No. ACM 39578


Accordingly, the findings and the sentence are AFFIRMED.


               FOR THE COURT



               CAROL K. JOYCE
               Clerk of the Court




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