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

                              No. ACM 39200
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Steven JIMENEZ
             Senior Airman (E-4), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 20 June 2018
                         ________________________

Military Judge: Brendon K. Tukey.
Approved sentence: Dishonorable discharge, confinement for 10 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 10 May 2016 by GCM convened at Malmstrom Air Force Base,
Montana.
For Appellant: Major Patricia Encarnación Miranda, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary
Ellen Payne, USAF; Major J. Ronald Steelman III, USAF.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge MINK and Judge DENNIS joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as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

JOHNSON, Senior Judge:
   A military judge found Appellant guilty, consistent with his pleas and pur-
suant to a pretrial agreement, of two specifications of willfully disobeying a
superior commissioned officer, one specification of wrongfully using marijuana
                    United States v. Jimenez, No. ACM 39200


on divers occasions, one specification of wrongfully distributing marijuana on
divers occasions, one specification of larceny of nonmilitary property of a value
of less than $500.00 on divers occasions, two specifications of aggravated as-
sault, and nine specifications of assault consummated by battery, in violation
of Articles 90, 112a, 121, and 128, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 890, 912a, 921, 928. 1 A general court-martial composed of officer
and enlisted members sentenced Appellant to a dishonorable discharge, con-
finement for ten years, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The military judge granted Appellant 200 days of confinement
credit against his sentence for illegal pretrial punishment. The convening au-
thority approved the adjudged sentence.
    Appellant raises seven issues on appeal: (1) whether he is entitled to relief
due to a presumptively unreasonable post-trial delay; (2) whether the termi-
nation of Appellant’s pay during his pretrial confinement constituted illegal
pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C. § 813; (3)
whether the military judge erred in permitting an expert witness to testify that
Appellant demonstrated a pattern of intimate partner violence; (4) whether
Appellant’s sentence to confinement is inappropriately severe; (5) whether Ap-
pellant’s trial defense counsel was ineffective for failing to make a specific sen-
tence recommendation; 2 (6) whether Appellant is entitled to additional confine-
ment credit due to the conditions of his pretrial confinement; and (7) whether
Appellant is entitled to confinement credit for the conditions of his post-trial
confinement. 3 We find no relief is warranted and affirm the findings and sen-
tence.

                                  I. BACKGROUND
  Appellant engaged in a pattern of physical violence against a series of ro-
mantic partners. Appellant met Staff Sergeant (SSgt) EP4 in technical school


1 The military judge’s findings with respect to four of the Article 128 specifications
involved findings by exceptions and substitutions.
2We find trial defense counsel’s performance in this respect did not fall measurably
below that expected of lawyers, and that absent the “error” there was no reasonable
probability of a more favorable result for Appellant. See United States v. Gooch, 69
M.J. 353, 362 (C.A.A.F. 2009). We further find this issue neither requires further dis-
cussion nor warrants relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987).
3Appellant personally asserts issues (4) through (7) pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
4SSgt EP was an Airman First Class or Senior Airman when Appellant committed the
offenses against her described below.


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                  United States v. Jimenez, No. ACM 39200


in late 2010. They attempted to maintain a long-distance relationship while
Appellant was stationed at Malmstrom Air Force Base (AFB), Montana, and
SSgt EP was stationed in Florida. In December 2011 or January 2012, Appel-
lant pushed SSgt EP on the chest during an argument in front of her parents’
house in Florida, causing SSgt EP to strike her head on the window of her car.
On another occasion, during a visit with Appellant’s family members in Cali-
fornia, Appellant again pushed SSgt EP on the chest hard enough to knock her
off her feet.
    Between January 2013 and July 2013, Appellant developed an intimate re-
lationship with TL, who like Appellant lived in Great Falls, Montana. In June
or July 2013, Appellant became angry at TL as they left a party. When TL
drove them home, Appellant grabbed her wrist hard enough to make her cry
and refused to let go until after they arrived. Later that evening at Appellant’s
apartment, he grabbed TL by the hair, pushed her on her chest, and placed his
hand on her throat and squeezed her neck lightly, all without her consent.
Their relationship ended shortly thereafter.
    On 3 November 2013, Appellant visited SSgt EP at her apartment in Flor-
ida. During another argument, Appellant held SSgt EP on the floor and choked
her by squeezing her neck with both hands. After Appellant let go, SSgt EP
attempted to retreat upstairs and Appellant pursued her. SSgt EP sprayed Ap-
pellant, and accidentally herself, with pepper spray, left the apartment, and
called 911. Civilian police responded, but SSgt EP did not tell them she had
been choked, and Appellant was not arrested or charged at the time.
    In September 2014, Appellant began a relationship with AH, who also lived
in Great Falls. Between May 2014 and January 2015, overlapping his relation-
ship with AH, Appellant used marijuana on multiple occasions with several
other Airmen and with AH. In addition, on multiple occasions Appellant pro-
vided marijuana to several Airmen who were subsequently administratively
discharged from the Air Force for drug abuse.
   On 5 January 2015, during an argument in Appellant’s apartment, Appel-
lant grabbed AH and pushed or threw her into the bathroom vanity, causing
her to fall to the floor. On 23 January 2015, Appellant pushed AH on the shoul-
der during another argument. On the night of 29–30 January 2015, after yet
another argument, AH came to Appellant’s apartment to remove her belong-
ings. During the ensuing confrontation Appellant struck AH in the face,
grabbed and pushed her, held her on the ground, pushed her face into a sofa,
and blew blood and mucus onto her from his nose.
   AH reported Appellant’s conduct to the Air Force Office of Special Investi-
gations (AFOSI) on 30 January 2015. That same day, Appellant’s squadron




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                   United States v. Jimenez, No. ACM 39200


section commander, First Lieutenant JT, issued him an order to have no con-
tact with AH. Despite receiving, understanding, and acknowledging the order,
Appellant violated the order on an ongoing basis by regularly communicating
with AH by telephone, social media, and texts, and by continuing to meet her
in person. On 24 March 2015, AH mentioned during an interview with AFOSI
that Appellant continued to contact her. As a result, on that day Appellant was
issued another order to have no contact with AH, this time from the deputy
squadron commander, Major OB. Appellant continued to regularly violate the
order.
    In April 2015, Appellant was working part-time at a local Walmart. On
multiple occasions over several days, when Appellant was working at a check-
out register he stole items from Walmart by giving them to customers—mostly
other Airmen—without scanning them or by voiding a purchase after initially
ringing it up. Walmart employees detected the larcenies by monitoring the un-
usual number of voided items at Appellant’s register and by studying store
security videos. When confronted, Appellant admitted to stealing the items.
Walmart identified four incidents during which Appellant either failed to scan
or voided a total of at least 24 items with a total value over $326.74.
    Finally, on 23 May 2015, Appellant and AH got involved in another physi-
cal altercation at his apartment. In the course of the incident Appellant
punched AH in the ribs, pulled her hair, and choked her. AH subsequently
reported the incident to AFOSI and to civilian police. Appellant was arrested
by civilian police on 24 May 2015 and held in civilian confinement until 26 May
2015. Upon his release, Appellant was restricted to Malmstrom AFB. After Ap-
pellant continued to violate renewed orders not to contact AH, on 9 October
2015 he was placed in military pretrial confinement where he remained until
the conclusion of his court-martial on 10 May 2016. Including the three days
in civilian confinement, Appellant spent a total of 217 days in pretrial confine-
ment.

                                II. DISCUSSION
A. Post-Trial Delay
   1. Additional Background
    Appellant’s trial concluded on 10 May 2016. The court reporter’s workload
significantly delayed transcription of the proceedings. In addition, substantial
recorded portions of the trial that were given to another court reporter for tran-
scription assistance had to be re-accomplished due to poor quality. The military
judge did not authenticate the trial transcript until 1 September 2016. During
the assembly of the record of trial, the base legal office realized an appellate



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                   United States v. Jimenez, No. ACM 39200


exhibit was missing. This led to the military judge signing a certificate of cor-
rection on 25 October 2016 in order to complete the record. Trial defense coun-
sel’s memorandum dated 24 October 2016 acknowledging notice of the pro-
posed certificate of correction included a demand for speedy post-trial pro-
cessing.
    The convening authority’s staff judge advocate (SJA) signed the original
SJA recommendation (SJAR) to the convening authority on 3 November 2016.
On 8 November 2016, Appellant’s trial defense counsel requested the SJA
recuse himself from the post-trial process because the SJA had previously con-
sulted with the trial defense counsel about Appellant’s case in the SJA’s prior
role as the chief of the Trial Defense Division. On 10 November 2016, the SJA
did recuse himself. An acting SJA signed a new SJAR on 10 November 2016,
which was delivered to Appellant and his counsel. Trial defense counsel sub-
mitted clemency matters to the convening authority on 24 November 2016. Er-
rors in an attachment to the SJAR and efforts to serve the SJAR on all of the
named victims further delayed the preparation of an addendum to the SJAR
and delivery of clemency matters to the convening authority until 16 December
2016. The convening authority took action on 19 December 2016, 223 days after
Appellant’s trial.
   2. Law
    The United States Court of Appeals for the Armed Forces (CAAF) has rec-
ognized that convicted servicemembers have a due process right to a timely
review and appeal of court-martial convictions. Toohey v. United States, 60
M.J. 100, 101 (C.A.A.F. 2004). In United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006), the CAAF established a presumption of unreasonable delay
when the convening authority does not take action within 120 days of comple-
tion of trial, when a record of trial is not docketed with the service court within
30 days of the convening authority’s action, and when this court does not ren-
der a decision within 18 months of the case being docketed. Where there is such
a delay, we examine the four factors set forth in Barker v. Wingo, 407 U.S. 514,
530 (1972), in order to determine if there is a due process violation: (1) the
length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion
of his right to a timely review; and (4) prejudice to the appellant. Moreno, 63
M.J. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005);
Toohey, 60 M.J. at 102). “No single factor is required for finding a due process
violation and the absence of a given factor will not prevent such a finding.” Id.
at 136 (citing Barker, 407 U.S. at 533). However, where an appellant has not
shown prejudice from the delay, there is no due process violation unless the
delay is so egregious as to “adversely affect the public’s perception of the fair-
ness and integrity of the military justice system.” United States v. Toohey, 63
M.J. 353, 362 (C.A.A.F. 2006).


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                   United States v. Jimenez, No. ACM 39200


   3. Analysis
    The 223 days that elapsed between the conclusion of Appellant’s trial and
the convening authority’s action exceeded the 120-day standard for a presump-
tively unreasonable delay the CAAF established in Moreno. Therefore, we con-
sider the four Barker factors, beginning with the length of the delay itself. In
this case, the delay substantially exceeded the Moreno standard. The Govern-
ment concedes this factor weighs in Appellant’s favor. We concur.
    The Government optimistically contends the second factor, the reasons for
the delay, weigh in its favor. We cannot agree. We acknowledge the size of the
record, which spanned 12 total days of trial and included 1208 pages of tran-
script and well over 100 exhibits. We further acknowledge the involvement of
multiple victims added to the procedural complexity of the post-trial process.
Nevertheless, the record demonstrates that time after time the processing of
Appellant’s case was substantially delayed by inefficiencies and lack of atten-
tion to detail that cannot be attributed to Appellant. While we do not question
the good intentions of those involved in the process, delays arising from assign-
ment of other priorities to the court reporter, poor transcription quality, loss of
an exhibit, failure to recognize the SJA’s conflict of interest, and errors in SJAR
attachments are squarely the responsibility of the Government. This factor
weighs substantially in favor of Appellant.
    The third factor, Appellant’s assertion of his right to timely review, weighs
somewhat in Appellant’s favor. At a minimum, on 24 October 2016 Appellant
put the Government on notice that he demanded timely post-trial processing.
Although this was already 167 days after his trial ended, it still took 56 more
days to reach convening authority action, largely because of avoidable errors
by the Government.
    In a different case, these factors may have led us to find a violation of Ap-
pellant’s due process rights under Moreno. However, the CAAF has held that
“where there is no finding of Barker prejudice, we will find a due process vio-
lation only when, 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.” Toohey, 63 M.J. at 362. In this
case, the prejudice analysis is determinative.
   In Moreno, the CAAF identified three types of cognizable prejudice arising
from post-trial processing delay: (1) oppressive incarceration; (2) anxiety and
concern; and (3) impairment of the appellant’s ability to present a defense at a
rehearing. 63 M.J. at 138–39. Where, as in this case as described below, an
appellant does not prevail on the substantive grounds of his appeal, there is no
oppressive incarceration. Id. at 139. Similarly, where Appellant’s substantive
appeal fails, his ability to present a defense at a rehearing is not impaired. Id.


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                    United States v. Jimenez, No. ACM 39200


at 140. As for anxiety and concern, the CAAF has explained “the appropriate
test for the military justice system is to require an appellant to show particu-
larized anxiety or concern that is distinguishable from the normal anxiety ex-
perienced by prisoners awaiting an appellate decision.” Id. Appellant contends
he had such particularized anxiety and concern because his pay ceased once he
passed the expiration of his term of service (ETS) while in pretrial confinement,
and he asserts he is unable to pursue a civil remedy for that denial in federal
court until the appeal of his court-martial is resolved. We find this argument
unpersuasive for two reasons. First, as explained below, Appellant’s argument
that he was subjected to unlawful withholding of pay is contrary to clear con-
trolling precedent from the CAAF interpreting the applicable law. See United
States v. Fischer, 61 M.J. 415, 421 (C.A.A.F. 2005). Second, Appellant’s claim
that he cannot pursue another remedy is supported only by his bare assertion;
he has failed to demonstrate that he is in fact barred from doing so, or that he
is entitled to any remedy in federal court.
    Because Appellant fails to demonstrate prejudice, and we find the remain-
ing factors are not so egregious as to impugn the fairness and integrity of the
military justice system, we find no violation of Appellant’s due process rights
under Moreno. Recognizing our authority under Article 66(c), UCMJ, 10 U.S.C.
§ 866(c), we have also considered whether relief for excessive post-trial delay
is appropriate in this case even in the absence of a due process violation. See
United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After considering the
factors enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim.
App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude that such an exer-
cise of our authority in not appropriate in this case. 5
B. Pay Termination
    1. Additional Background
   Appellant entered pretrial confinement on 9 October 2015 and remained
there until the end of his trial on 10 May 2016. Appellant’s term of service



5 These factors include: (1) how long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and whether
there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is evidence of harm to the appellant or institu-
tionally caused by the delay; (4) whether the delay has lessened the disciplinary effect
of any particular aspect of the sentence, and whether relief is consistent with the dual
goals of justice and good order and discipline; (5) whether there is any evidence of in-
stitutional neglect concerning timely post-trial processing; and (6) given the passage
of time, whether this court can provide meaningful relief in this particular situation.




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                    United States v. Jimenez, No. ACM 39200


expired on 4 January 2016. On that date he ceased receiving pay. On 15 Janu-
ary 2016, the SJA for the 341st Missile Wing (341 MW) submitted a request to
the Air Force Personnel Center (AFPC) to involuntarily extend Appellant on
active duty. AFPC denied the request, explaining that his enlistment could not
be extended while he was in pretrial confinement.
   Appellant filed a pretrial motion requesting relief for illegal pretrial pun-
ishment in violation of Article 13, UCMJ, citing in part the termination of his
pay. 6 The Government opposed the motion. After findings but before the sen-
tence was announced, in an oral ruling subsequently supplemented in writing,
the military judge carefully considered the facts and the law in light of the
CAAF’s majority opinion in Fischer, 61 M.J. 415, and denied the motion with
respect to the termination of pay.
    2. Law
    We review de novo the question of whether an appellant is entitled to credit
for a violation of Article 13, UCMJ. Id. at 418 (citing United States v. Mosby,
56 M.J. 309, 310 (C.A.A.F. 2002)). “It is a mixed question of law and fact, and
the military judge’s findings of fact will not be overturned unless they are
clearly erroneous.” Id. The appellant bears the burden of proof. Id.
    “Article 13, UCMJ, prohibits two things: (1) the imposition of punishment
prior to trial, and (2) conditions of arrest or pretrial confinement that are more
rigorous than necessary to ensure the accused’s presence for trial.” United
States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005). The first prohibition involves
an intent or purpose to punish determined by examining the intent of confine-
ment officials and the purposes of the restrictions or conditions in question. Id.
(citations omitted). The second prohibition concerns conditions “sufficiently
egregious [to] give rise to a permissive inference that an accused is being pun-
ished, or conditions . . . so excessive as to constitute punishment.” Id. at 227–
28 (citations omitted).
    The Department of Defense Financial Management Regulation (FMR) pro-
vides that a military confinee is not entitled to pay and allowances once his
term of enlistment expires. See Department of Defense FMR, DoD 7000.14-R,
Volume 7A, Chapter 1, §§ 010402.F, G (April 2017). If a member in pretrial
confinement is subsequently acquitted or if the charges are dismissed, pay and
allowances accrue until the member’s discharge. Id. at § 010402, G.3. In
Fischer, the CAAF found the provision of the FMR terminating pay upon ETS


6Appellant also asserted the conditions of his pretrial confinement violated Article 13,
UCMJ, an issue addressed separately below.




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                    United States v. Jimenez, No. ACM 39200


did not operate as an unlawful punishment imposed before trial in violation of
Article 13, UCMJ. Fischer, 61 M.J. at 418–22.
    3. Analysis
    Appellant contends the termination of his pay was an illegal pretrial pun-
ishment in violation of Article 13, UCMJ. 7 He does not challenge the military
judge’s finding at trial that the termination of his pay pursuant to the FMR
involved no punitive intent, but Appellant asserts it is facially punitive, is ar-
bitrary, and serves no legitimate governmental purpose in its disparate treat-
ment of enlisted pretrial confinees who are subsequently convicted and other
servicemembers in a pretrial status. See Bell v. Wolfish, 441 U.S. 520, 539
(1979) (“[I]f a restriction or condition [of pretrial detention] is not reasonably
related to a legitimate goal—if it is arbitrary or purposeless—a court permis-
sibly may infer that the purpose . . . is punishment that may not be constitu-
tionally inflicted upon detainees qua detainees.”) (citation omitted); Howell v.
United States, 75 M.J. 386, 393 (C.A.A.F. 2016).
    Appellant recognizes the CAAF’s analysis of the FMR provisions in Fischer
is contrary to his position, but he attempts to distinguish his case. First, he
characterizes the efforts of the 341 MW SJA to extend his enlistment after his
ETS expired as an attempt to “remedy the wrong” he suffered. Appellant sug-
gests that because the attempt by one governmental actor (the 341 MW SJA)
to relieve him was thwarted by the application of the FMR by another govern-
mental actor (AFPC), the FMR provision operated as a punishment in his case.
We are not persuaded. AFPC correctly interpreted and applied governing reg-
ulations in Appellant’s case as it would in any other; any dialog between the
341 MW SJA and AFPC en route to this result did not transform the regulatory
provisions into a punishment.
    Next, Appellant contends his case is unlike Fischer in that he does not have
the option of pursuing the matter of his pay in the United States Court of Fed-
eral Claims (USCFC). See Fischer, 61 M.J. at 421. Appellant cites several cases
for the proposition that, although in general servicemembers separated prior
to ETS may sue in the USCFC for reinstatement and back pay, servicemem-
bers past their ETS are not entitled to reinstatement or to back pay for periods
after their ETS. See Dodson v. United States Gov’t, Dep’t of Army, 988 F.2d
1199, 1208 (Fed. Cir. 1993); Thomas v. United States, 42 Fed. Cl. 449, 452–53
(1998), aff’d, 217 F.3d 854 (Fed. Cir. 1999); Dougharty v. United States, 27 Fed.
Cl. 436, 439 (1993), aff’d, 11 F.3d 1073 (Fed. Cir. 1993). Taken together, these


7 The issue as recited in Appellant’s assignment of error also alleges violation of his
right to due process, but Appellant’s analysis of the issue is limited to Article 13,
UCMJ.


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                    United States v. Jimenez, No. ACM 39200


cases stand for the sensible proposition that the USCFC cannot direct a mili-
tary service to reenlist a member, nor will it assume the military service would
have reenlisted a member where such a decision is not automatic but is within
the discretion of the service. This does not distinguish Appellant’s case from
Fischer; like Appellant, Lance Corporal Fischer ceased receiving pay upon the
expiration of his enlistment while he was in pretrial confinement. Fischer, 61
M.J. at 416. In fact, Appellant is similarly situated to Lance Corporal Fischer
in that, as the CAAF put it, if he “takes issue with the propriety of the under-
lying decisions as a matter of fiscal law, he must pursue that issue before the
[USCFC].” Id. at 421.
    Finally, Appellant argues Fischer may no longer be valid precedent in light
of the United States Supreme Court’s decision in Nelson v. Colorado, 137 S. Ct.
1249 (2017). We are not persuaded. In Nelson, the Court found a Colorado stat-
ute requiring an exonerated criminal defendant to file suit and prove actual
innocence by clear and convincing evidence in order to recover fees, costs, and
restitution previously exacted in connection with the overturned convictions
violated the Fourteenth Amendment 8 guarantee of due process. Id. at 1257–
58. Unlike Nelson, Appellant and Lance Corporal Fischer were not required to
forfeit property as a result of an invalidated determination of guilt, unless and
until they bore the burden of proving their actual innocence. Rather, Appellant
simply did not receive pay to which he was not entitled. As the CAAF explained
in Fischer, his entitlement to pay terminated at ETS, and “[t]he Government’s
policy of retroactively paying persons held past their [ETS] when a charge has
not been sustained at trial does not signify an intent to punish the other
group.” 61 M.J. at 419.
    Fischer controls, and like the military judge we are not at liberty to substi-
tute our judgment for that of our superior court, even if we were inclined to do
so. We hold the termination of Appellant’s pay upon his ETS was not an illegal
pretrial punishment in violation of Article 13, UCMJ.
C. Testimony on Pattern of Intimate Partner Violence
      1. Additional Background
    During sentencing proceedings, the Government called Dr. KF as an expert
in clinical and forensic psychology. Dr. KF testified generally about the char-
acteristics and effects of intimate partner violence.
   The Defense called Dr. MC, its own expert in clinical and forensic psychol-
ogy. Dr. MC somewhat undermined Dr. KF’s testimony by providing further




8   U.S. CONST. amend. XIV.


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                   United States v. Jimenez, No. ACM 39200


details and analysis of studies and authorities Dr. KF had cited. On cross-ex-
amination, trial counsel elicited, inter alia, Dr. MC’s agreement that all 11
specifications of assault of which Appellant was convicted were instances of
intimate partner violence.
    After the cross-examination, the military judge permitted the court mem-
bers to submit in writing their own questions for Dr. MC. One court member
submitted the following question: “Do you believe [Appellant] shows a pattern
of interpartner [sic] violence, and what are some of the risks if he is not
treated?” Trial defense counsel requested an Article 39(a), UCMJ, hearing out-
side the presence of the members to discuss the proposed question. Counsel for
both parties opposed asking the second part of the question regarding “risks,”
and the military judge agreed not to ask that portion. Trial counsel contended
the first part of the question regarding a “pattern” should be asked. Trial de-
fense counsel objected, initially on the grounds that it was “outside the scope”
of Dr. MC’s testimony. The military judge then asked Dr. MC, outside the pres-
ence of the members, whether he believed Appellant “shows a pattern of inti-
mate-partner violence.” Dr. MC responded:
       Well, we certainly see a pattern across victims. So, we do see
       repeated episodes of this. And we’ve seen at least more than one
       incident of strangulation in particular. So I think it would be
       hard to say that there isn’t some sort of a pattern here that you
       see across victims and situations.
The military judge stated he intended to ask the member’s question because it
was “fairly enough within the expertise of the doctor” and “in regards to [Mil.
R. Evid.] 403, nor do I find that its probative value would be outweighed by the
risk of unfair prejudice.”
    Trial defense counsel then objected because Dr. MC’s expertise was not re-
quired to answer the question; it was already “abundantly clear” that “there’s
a pattern here and we all got that.” He further contended there was a risk of
unfair prejudice in that the testimony would create the impression that Appel-
lant was a “repeat offender.” The military judge opined that the proposed ques-
tion was distinct from the question of whether Appellant was a repeat offender
and that there was “no real risk of unfair prejudice.” Finally, trial defense coun-
sel suggested that in light of training regarding sexual assault in particular,
the term “pattern of violence” carried “certain stigmas and inclinations” in the
minds of Air Force members that militated against permitting such testimony.
The military judge disagreed and overruled the objection.
    When the court members returned, the military judge asked, “do you be-
lieve that [Appellant] shows a pattern of intimate partner violence?” Dr. MC
answered:


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                   United States v. Jimenez, No. ACM 39200


       If we define pattern as behaviors that are repeated over various
       different situations, then I think we would have to say, “Yes.”
       Because we certainly do see certain kinds of behaviors or gener-
       ally behaviors that are defined – that have been defined as IPV
       [intimate partner violence] occurring repeatedly, both within re-
       lationships and across relationships. So I think that the general
       answer to that would be yes.
   2. Law
    A military judge’s decision to admit or exclude expert testimony is re-
viewed for an abuse of discretion. United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010). “A military judge abuses his discretion when: (1) the findings
of fact upon which he predicates his ruling are not supported by the record; (2)
if incorrect legal principles were used; or (3) if his application of the correct
legal principles to the facts was clearly unreasonable.” Id. (citing United States
v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)).
     Mil. R. Evid. 403 provides a “military judge may exclude relevant evidence
if its probative value is substantially outweighed by a danger of . . . unfair prej-
udice . . . .” Where a military judge conducts a proper balancing test under Mil.
R. Evid. 403, an appellate court will not overturn the ruling absent a clear
abuse of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010)
(quoting United States v. Ruppel, 49 M.J. 247, 251 (C.A.A.F. 1998)). If the mil-
itary judge conducts the Mil. R. Evid. 403 balancing test but “does not suffi-
ciently articulate his balancing on the record, his evidentiary ruling will re-
ceive less deference.” United States v. Berry, 61 M.J. 91, 96 (C.A.A.F. 2005).
   3. Analysis
    Appellant contends Dr. MC’s testimony that Appellant demonstrated a pat-
tern of intimate partner violence was lent additional weight by Dr. MC’s status
as an expert and implied Appellant was likely to reoffend in the future. Appel-
lant argues the military judge abused his discretion by permitting this testi-
mony and asks this court to reassess his sentence to confinement and grant
meaningful relief. We decline to do so.
    We acknowledge the probative value of Dr. MC’s answer to the question
was modest. In trial defense counsel’s words, it was already “abundantly clear”
in light of trial counsel’s cross-examination of Dr. MC and all other evidence in
the case regarding the charged assaults that Appellant demonstrated a pattern
of violence toward his intimate partners. However, by the same token, as the
military judge recognized, the danger of unfair prejudice, if any, was slight.
Trial defense counsel himself agreed the evidence demonstrated a pattern of
intimate partner violence. Dr. MC did not testify regarding Appellant’s likeli-



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                  United States v. Jimenez, No. ACM 39200


hood to reoffend. Dr. MC defined “pattern” for purposes of his answer in a com-
mon sense, easily understood way that focused on past events and not as a
prediction of future behavior. We are not persuaded his acknowledgement of a
past pattern of intimate partner violence amounted to a prediction or sugges-
tion regarding potential recidivism.
    Accordingly, we are not persuaded the military judge abused his discretion
by concluding the probative value of the court member’s question was not sub-
stantially outweighed by the danger of unfair prejudice.
D. Sentence Appropriateness
   1. Law
    We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ. “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fense[s], the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App. 2015)
(citing United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)).
Although we have great discretion to determine whether a sentence is appro-
priate, we have no authority to grant mercy. United States v. Nerad, 69 M.J.
138, 146 (C.A.A.F. 2010).
   2. Analysis
    Appellant personally asserts his sentence “is disproportionate to the facts
of his case and the victim impact as shown during his court-martial.” He refers
us to his trial defense counsel’s clemency memorandum on his behalf to the
convening authority. Therein, among other arguments, trial defense counsel
notes that although Appellant faced a maximum term of 38 years in confine-
ment, his convictions for violating no contact orders, using marijuana, distrib-
uting marijuana, and committing larceny of “a little over $300” contribute 27.5
years towards that maximum. Trial defense counsel asserted “practical expe-
rience” indicated these offenses individually would have “at best” merited non-
judicial punishment and an administrative discharge, and even combined it is
a “near certainty” they would not result in a general court-martial. In contrast,
he argued, the real focus of the case—the assaults—accounted for less than a
third of the maximum available term of confinement. He further contended the
assaults themselves, which did not result in lasting injuries, were not “ex-
treme” when considered in the full spectrum of assaults that may be charged
under Article 128, UCMJ. For these and other reasons, trial defense counsel
requested the convening authority reduce Appellant’s term of confinement by


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                   United States v. Jimenez, No. ACM 39200


two years or, failing that, approve a bad-conduct discharge in lieu of the ad-
judged dishonorable discharge. We are not persuaded.
   “The military operates under the theory of ‘unitary sentencing’ which has
been part of military law even before the enactment of the Uniform Code of
Military Justice.” United States v. Bellacosa, No. ACM 32266, 1997 CCA
LEXIS 92, at *3 (A.F. Ct. Crim. App. 6 Mar. 1997) (unpub. op.) (citing United
States v. Keith, 4 C.M.R. 34 (1952)). Appellant does not now challenge this gen-
eral principle. Yet, at trial, the military judge permitted the Defense to attach
a document to Appellant’s written unsworn statement that set forth the indi-
vidual maximum punishments corresponding to the offenses of which Appel-
lant had been convicted. Thus, notwithstanding the principle of unitary sen-
tencing, the court members were made aware of how much each individual
specification contributed to the 38-year maximum possible term of confine-
ment. Knowing this, the members decided a 10-year term of confinement was
appropriate. We cannot say such a sentence is inappropriately severe.
    Notwithstanding trial defense counsel’s minimizations, we do not lightly
dismiss the seriousness of Appellant’s offenses. Appellant’s criminal miscon-
duct was longstanding and multifaceted. Over a period of years, he engaged in
a pattern of physical violence against multiple intimate partners, including
choking two of them to the point they feared they would die. He repeatedly
distributed marijuana to multiple other Airmen in his home, and he repeatedly
used it with them and with a civilian. Moreover, Appellant’s misconduct con-
tinued and diversified well after he became aware he was under criminal in-
vestigation in January 2015. On multiple occasions he stole from his part-time
employer, Walmart. He brazenly and continuously violated no contact orders
designed, in part, to protect one of his victims, until he was placed in pretrial
confinement. These violations directly led to one of the aggravated assaults
during which he choked and battered AH. Having given individualized consid-
eration to Appellant, the nature and seriousness of the offenses, Appellant’s
record of service, and all other matters contained in the record of trial, we find
his sentence is not inappropriately severe. See Sauk, 74 M.J. at 606.
E. Additional Pretrial Confinement Credit
    1. Additional Background
   The Defense filed a pretrial motion seeking relief for alleged illegal pretrial
punishment in violation of Article 13, UCMJ, based in part on the conditions
of Appellant’s military pretrial confinement. 9 The Government opposed the


9The motion also alleged the termination of Appellant’s pay upon the expiration of his
term of service while in pretrial confinement violated Article 13, UCMJ; that issue is
addressed separately above.


                                         14
                   United States v. Jimenez, No. ACM 39200


motion. At trial, the military judge received evidence and heard argument on
the motion. The military judge’s written ruling included findings of fact we find
to be supported by the record, pertinent portions of which are summarized be-
low.
    In accordance with Air Force regulations, upon entering military pretrial
confinement at Malmstrom AFB, Appellant was classified as a maximum cus-
tody detainee. Unlike post-trial detainees, pretrial detainees did not receive an
initial individualized assessment or opportunity for periodic reassessment of
their security classification; all pretrial detainees were placed in maximum
custody status. Had Appellant received an individual assessment, he would
have been categorized as a “medium in” confinee, the least restrictive classifi-
cation available at the Malmstrom AFB confinement facility.
     As a maximum custody confinee, Appellant faced greater restrictions than
did medium custody confinees. Whenever he left the confinement facility, in-
cluding to meet his defense counsel, attend court sessions, or go to the barber-
shop, he was required to be handcuffed, shackled, and accompanied by escorts
and an armed guard. When Appellant received visitors at the confinement fa-
cility, he was required to be handcuffed and shackled and was permitted no
physical contact; medium confinees were not so restrained and were permitted
a brief hug or handshake with visitors. Appellant was required to eat his meals
in his cell. Appellant was not permitted to leave his cell to use the facility’s day
room or outdoor courtyard because he was not allowed to mingle with the me-
dium confinees held in the facility. As a result, Appellant spent essentially all
day in his cell, unless required to leave for appointments, for hygiene needs, or
to receive visitors. If Appellant had been able to use the day room and court-
yard, unlike medium confinees he would have been shackled, handcuffed, and
monitored by at least one guard.
   The military judge found:
       [W]hile there is a readily obvious legitimate government ra-
       tionale for initially placing a pre-trial confinee in maximum con-
       finement status, the same cannot be said of arbitrarily requiring
       that all pretrial confinees must perpetually remain in maximum
       confinement status, regardless of their behavior or the duration
       of confinement, without even the possibility of having their sta-
       tus reassessed. It is strange, indeed, that a convict will enjoy the
       opportunity to be individually reassessed and to earn less re-
       strictive conditions while a pre-trial confinee, who enjoys the
       presumption of innocence, is denied even the opportunity to be
       reassessed. Likewise, it is strange, indeed, that, in order to avoid
       the evils of co-mingling pre-trial confinees with convicts, the gov-
       ernment should resolve the issue of things such as access to the

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                   United States v. Jimenez, No. ACM 39200


       dayroom by allowing convicts the privilege, while keeping the
       accused essentially locked up 24 hours a day.
(Emphasis added). The military judge found Appellant’s confinement under
maximum security conditions during the first 14 days of his military pretrial
confinement was reasonably related to a legitimate government purpose. How-
ever, his continued maximum confinement in perpetuity without the oppor-
tunity for reassessment for the remaining 200 days was “purposeless, arbi-
trary, and not reasonably related to a legitimate government purpose.” Accord-
ingly, the military judge awarded Appellant an additional day-for-day credit
against his sentence to confinement for each of those 200 days.
   2. Law
    Whether an Appellant is entitled to additional confinement credit for al-
leged violations of Article 13, UCMJ, is a mixed question of fact and law. United
States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997). We defer to a military
judge’s findings of fact unless they are clearly erroneous, whereas we consider
de novo whether the facts entitle Appellant to additional credit against his
sentence. United States v. Williams, 68 M.J. 252, 256 (C.A.A.F. 2010). “Article
13, UCMJ, prohibits two things: (1) the imposition of punishment prior to trial,
and (2) conditions of arrest or pretrial confinement that are more rigorous than
necessary to ensure the accused’s presence for trial.” King, 61 M.J. at 227. The
first prohibition involves an intent or purpose to punish determined by exam-
ining the intent of confinement officials and the purposes of the restrictions or
conditions in question. Id. (citations omitted). The second prohibition concerns
conditions “sufficiently egregious [to] give rise to a permissive inference that
an accused is being punished, or conditions . . . so excessive as to constitute
punishment.” Id. (citations omitted).
   3. Analysis
    Appellant personally asserts the 200 days of additional confinement credit
awarded by the military judge was inadequate for the pretrial confinement
conditions he endured. He refers us to “his trial defense counsel[’s] argument
regarding this issue as presented in his clemency submissions.” However, alt-
hough trial defense counsel’s clemency submission sought relief for allegedly
illegal post-trial confinement, he did not claim Appellant was entitled to addi-
tional relief for the conditions of his pretrial confinement. Nevertheless, we
have evaluated Appellant’s claim.
    We do not agree Appellant is entitled to additional credit for illegal pretrial
punishment. Although the military judge’s ruling is not a model of clarity as to
his specific rationale, his description of the pretrial confinement security clas-
sification policy as “purposeless, arbitrary, and not reasonably related to a le-
gitimate government purpose” and his reference to McCarthy suggest he found


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                     United States v. Jimenez, No. ACM 39200


a “permissible inference of punishment.” See McCarthy, 47 M.J. at 167 (cita-
tions omitted). Whether or not we agree, we find the military judge’s award of
200 days of additional confinement credit was adequate to remedy any viola-
tion of Article 13, UCMJ. The military judge did not find a specific intent to
punish Appellant. The Malmstrom AFB confinement personnel applied the ex-
isting Air Force policies regarding confinement and treated Appellant as they
would have treated any other pretrial confinee under the circumstances—spe-
cifically, where medium security post-trial confinees were also present in the
facility. There is no evidence Appellant’s maximum security status negatively
affected his health or opportunity to participate in his defense. The military
judge simply found those regulations struck an unreasonable balance between
the competing interests of pretrial and post-trial confinees, which prejudiced
Appellant’s interests in liberty and, to a certain extent, dignity. The award of
200 days of additional confinement credit was sufficient to redress that preju-
dice.
F. Conditions of Post-Trial Confinement
      1. Law
    We review de novo whether an appellant has been subjected to impermis-
sible conditions of post-trial confinement in violation of Article 55, UCMJ, 10
U.S.C. § 855, or the Eighth Amendment. 10 United States v. Wise, 64 M.J. 468,
473 (C.A.A.F. 2007). “‘[A] prisoner must seek administrative relief prior to in-
voking judicial intervention’ to redress concerns regarding post-trial confine-
ment conditions.” Id. at 471 (quoting United States v. White, 54 M.J. 469, 472
(C.A.A.F. 2001)). Absent some unusual or egregious circumstance, an appellant
must demonstrate he has exhausted the prisoner grievance system and his
right to petition his command for relief under Article 138, UCMJ. Id.
    “Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and
unusual punishment. In general, we apply the Supreme Court’s interpretation
of the Eighth Amendment to claims raised under Article 55, UCMJ, except
where legislative intent to provide greater protections under Article 55 . . . is
apparent.” Gay, 74 M.J. at 740. To demonstrate a violation of the Eighth
Amendment, an appellant must show:
          (1) an objectively, sufficiently serious act or omission resulting
          in the denial of necessities; (2) a culpable state of mind on the
          part of prison officials amounting to deliberate indifference to




10   U.S. CONST. amend. VIII.


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                  United States v. Jimenez, No. ACM 39200


       [his] health and safety; and (3) that [he] has exhausted the pris-
       oner-grievance system . . . and that he has petitioned for relief
       under Article 138, UCMJ.
United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006). Under our broad au-
thority and mandate under Article 66(c), UCMJ, to approve only so much of
the sentence as we find appropriate in law and fact, we may grant sentence
relief due to an appellant’s post-trial treatment even in the absence of an
Eighth Amendment or Article 55, UCMJ, violation. Gay, 74 M.J. at 742–43; see
Tardif, 57 M.J. at 223.
   2. Analysis
    Appellant argues he is entitled to additional confinement credit because he
remained in maximum security confinement conditions for 17 days following
the conclusion of his trial. Appellant provides no sworn declaration, affidavit,
or other supplement to the record in support of this claim, but once again refers
us to his trial defense counsel’s clemency submission to the convening author-
ity. Therein, trial defense counsel asserted Appellant remained in maximum
confinement status from 10 May 2016 until 27 May 2016 due to an error by
confinement authorities in classifying his confinement status. Trial defense
counsel asserted that had the error not occurred, Appellant would have been
classified as medium custody status. As a result, Appellant improperly en-
dured 17 additional days of maximum custody under the restrictive conditions
described above in relation to the issue of his pretrial confinement in the same
facility. Therefore, trial defense counsel argued, Appellant should be awarded
an additional 51 days of confinement credit.
    Appellant’s argument fails for multiple reasons. First, Appellant offers no
evidence that he was in fact misclassified into post-trial maximum custody sta-
tus. Trial defense counsel’s bare assertions in the unsworn clemency memo-
randum do not carry the weight of evidence.
    Second, in response to Appellant’s assignment of error, the Government
provided a sworn declaration dated 25 April 2018 from SSgt RM, the assistant
noncommissioned officer in charge of the confinement facility. SSgt RM does
not admit or deny there may have been an error with respect to the type of
aggravated assault under Article 128, UCMJ, used to calculate Appellant’s cus-
tody status. However, SSgt RM clarifies that, regardless of the asserted error,
Appellant would have been classified as a maximum security confinee from 10
May 2016 until 27 May 2016 based on his 10-year term of confinement, his
conviction for distributing marijuana, and a disciplinary offense while in con-
finement. Therefore, the asserted error, even if it were proven, was harmless
with respect to Appellant’s custody status. No evidence in the record contra-
dicts SSgt RM’s statement.


                                       18
                  United States v. Jimenez, No. ACM 39200


    Third, even if we accepted arguendo that an error had resulted in Appel-
lant’s custody grade misclassification for 17 days, such an error does not ap-
proach the level of cruel or unusual punishment violative of Article 55, UCMJ,
or the Eighth Amendment. There is no evidence Appellant was subjected to
worse conditions than any other maximum confinee would have been, much
less of “denial of necessities” or “deliberate indifference to [his] health and
safety.” Lovett, 63 M.J. at 215. Finally, given the lack of a factual foundation
for Appellant’s claim, we need not address whether relief even in the absence
of an Eighth Amendment or Article 55, UCMJ, violation is appropriate. See
Gay, 74 M.J. at 742–43; Tardif, 57 M.J. at 223.

                               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). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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