                         UNITED STATES, Appellee

                                         v.

                       Samuel LOFTON III, Colonel
                        U.S. Air Force, Appellant

                                  No. 10-0565
                           Crim. App. No. 37317

       United States Court of Appeals for the Armed Forces

                        Argued December 13, 2010

                       Decided February 17, 2011

STUCKY, J., delivered the opinion of the Court, in which BAKER,
ERDMANN, and RYAN, JJ., joined. EFFRON, C.J., filed a separate
dissenting opinion.


                                     Counsel


For Appellant: Captain Nicholas W. McCue (argued); Lieutenant
Colonel Gail E. Crawford (on brief); Colonel Eric N. Eklund and
Major Anthony D. Ortiz.

For Appellee: Major Charles G. Warren (argued); Colonel Don
Christensen, Captain Joseph J. Kubler, and Gerald R. Bruce, Esq.
(on brief).

Military Judge:    William M. Burd


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lofton III, No. 10-0565/AF


     Judge STUCKY delivered the opinion of the Court.

     We granted review to consider (1) whether Appellant’s

conviction for engaging in conduct unbecoming an officer and a

gentleman by making unsolicited comments of a sexual nature is

legally sufficient; and (2) whether the convening authority

abused his discretion in failing to order a post-trial hearing

pursuant to Article 39(a), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 839(a) (2006).   We hold that Appellant’s

conviction is legally sufficient and that Appellant suffered no

prejudice by the convening authority’s failure to order a post-

trial hearing.

                                I.

     At a general court-martial, Appellant pled guilty to eleven

specifications of being absent without authority from his place

of duty, one specification of being derelict in the performance

of his duties, one specification of violating a lawful general

regulation (the Joint Ethics Regulation), and seventeen

specifications of larceny of money, military property of the

United States.   Articles 86, 92, and 121, UCMJ, 10 U.S.C. §§

886, 892, 921 (2006).   Contrary to Appellant’s pleas, court

members convicted him of two specifications of conduct

unbecoming an officer and a gentleman and two specifications of

indecent assault.   Articles 133 and 134, UCMJ, 10 U.S.C. §§ 933,

934 (2006).   The members sentenced Appellant to a dismissal,


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United States v. Lofton III, No. 10-0565/AF


confinement for nine years, forfeiture of all pay and

allowances, a fine of $14,000, and additional confinement for

one year if the fine was not paid.     The convening authority

approved the sentence but ordered suspension for three months of

the execution of the forfeiture of pay and allowances for the

first three months and waived for three months the mandatory

forfeitures resulting from his sentence to a dismissal and

confinement.    The United States Air Force Court of Criminal

Appeals affirmed.   United States v. Lofton, No. ACM 37317, 2010

CCA LEXIS 142, at *17, 2010 WL 2266628, at *5 (A.F. Ct. Crim.

App. Apr. 19, 2010) (unpublished).

                                 II.

     In specification 2 of Charge IV, Appellant was convicted of

“wrongfully and dishonorably mak[ing] unsolicited comments of a

sexual nature to Chief Master Sergeant [RM] . . . which conduct

under the circumstances was unbecoming an officer and

gentleman.”    Appellant asserts that the evidence is legally

insufficient to sustain this conviction.

                                 A.

     “This Court reviews questions of legal sufficiency de

novo . . . .”   United States v. Harman, 68 M.J. 325, 327

(C.A.A.F. 2010) (citation omitted).    We have adopted the Supreme

Court’s test in Jackson v. Virginia, 443 U.S. 307, 319 (1979),

for determining legal sufficiency -- “‘whether, after reviewing


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United States v. Lofton III, No. 10-0565/AF


the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’”    Harman, 68 M.J. at

327 (quoting United States v. Mack, 65 M.J. 108, 114 (C.A.A.F.

2007)).    This test requires that we “draw every reasonable

inference from the evidence of record in favor of the

prosecution.”    United States v. Bright, 66 M.J. 359, 365

(C.A.A.F. 2008) (quotation marks and citation omitted).

        The elements of a violation of Article 133 are that:   (1)

the accused did or omitted to do certain acts; and (2) under the

circumstances, these acts or omissions constituted conduct

unbecoming an officer and a gentleman.    United States v.

Conliffe, 67 M.J. 127, 132 (C.A.A.F. 2009); see Manual for

Courts-Martial, United States (MCM) pt. IV, para. 59.b. (2008

ed.).

        Conduct violative of this article is action or
        behavior in an official capacity which, in dishonoring
        or disgracing the person as an officer, seriously
        compromises the officer’s character as a gentleman, or
        action or behavior in an unofficial or private
        capacity which, in dishonoring or disgracing the
        officer personally, seriously compromises the person’s
        standing as an officer. There are certain moral
        attributes common to the ideal officer and the perfect
        gentleman, a lack of which is indicated by acts of
        dishonesty, unfair dealing, indecency, indecorum,
        lawlessness, injustice, or cruelty. Not everyone is
        or can be expected to meet unrealistically high moral
        standards, but there is a limit of tolerance based on
        customs of the service and military necessity below
        which the personal standards of an officer, cadet, or
        midshipman cannot fall without seriously compromising


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United States v. Lofton III, No. 10-0565/AF


     the person’s standing as an officer, cadet, or
     midshipman or the person’s character as a gentleman.
     This article prohibits conduct by a commissioned
     officer, cadet, or midshipman which, taking all the
     circumstances into consideration, is thus
     compromising. This article includes acts made
     punishable by any other article, provided these acts
     amount to conduct unbecoming an officer and a
     gentleman. Thus, a commissioned officer who steals
     property violates both this article and Article 121.
     Whenever the offense charged is the same as a specific
     offense set forth in this Manual, the elements of
     proof are the same as those set forth in the paragraph
     which treats that specific offense, with the
     additional requirement that the act or omission
     constitutes conduct unbecoming an officer and
     gentleman.

MCM pt. IV, para. 59.c.(2).

          An officer’s conduct need not violate other
     provisions of the UCMJ or even be otherwise criminal
     to violate Article 133, UCMJ. The gravamen of the
     offense is that the officer’s conduct disgraces him
     personally or brings dishonor to the military
     profession such as to affect his fitness to command
     the obedience of his subordinates so as to
     successfully complete the military mission. Clearly,
     then, the appropriate standard for assessing
     criminality under Article 133 is whether the conduct
     or act charged is dishonorable and compromising as
     hereinbefore spelled out -- this notwithstanding
     whether or not the act otherwise amounts to a crime.

United States v. Schweitzer, 68 M.J. 133, 137 (C.A.A.F. 2009)

(quotation marks and citations omitted).

                               B.

     In large measure, Appellant relies on this Court’s opinion

in United States v. Brown, 55 M.J. 375 (C.A.A.F. 2001), to

support this assignment of error.   Brown was a nurse who made

crude and sexist comments to, and inappropriately touched, three


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United States v. Lofton III, No. 10-0565/AF


other nurses.    Id. at 378-82.   The government relied on an Air

Force pamphlet to establish the applicable standard of conduct.

Id. at 385.     In overturning the conviction for the crude and

sexist comments, this Court held:

          The rigorous standard in the pamphlet shows that
     it is not merely a civility code for policing the
     workplace. Only severe conduct with harsh effects
     constitutes sexual harassment under the pamphlet;
     comments or questions that offend one’s sensibilities
     and make one uncomfortable do not create a hostile
     work environment under the standard in the pamphlet.
     Appellant’s breaches of etiquette may well have
     warranted instruction, counseling or other types of
     administrative corrective action, but his comments did
     not violate the standard relied upon by the Government
     at trial to establish the custom of the Air Force for
     purposes of Article 133.

Id. at 387 (quotation marks and citations omitted).

                                  C.

     Chief Master Sergeant (CMSgt) RM, Command Chief for the 82d

Training Wing (82 TRW), testified that Appellant was the

commander of the 82d Training Group.    Shortly after she arrived

at the installation, CMSgt RM thought Appellant was the

“greatest group commander we had.”     She attended an Asian-

Pacific breakfast at which leis were handed out to the

attendees.    The airman who greeted her said “let’s get you

lei’d,” and became embarrassed about it.    CMSgt RM thought it

was funny and recounted the incident before the staff meeting,

which followed the breakfast.     After the staff meeting,

Appellant followed CMSgt RM back to her office and asked if she


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United States v. Lofton III, No. 10-0565/AF


needed help with that -- which she took as a double entendre

reference to the term “lei’d.”   She took it as a joke.   As

Appellant left, he said they should set something up, to which

she replied, “‘I’ll have my assistant call your secretary.’”

Later that week, one evening after 8 p.m., Appellant had the

command post patch a telephone call through to CMSgt RM’s work

cell phone.   He wanted to continue the previous conversation.

CMSgt RM, who was at home, told him that she was working and the

conversation ended soon thereafter.    He later telephoned her on

her personal cell phone, but she noted the number, recognized it

as his, and didn’t answer the call.    She thought the call to her

personal cell phone was “creepy,” because if he had wanted to

discuss work, he could have called her on her work cell phone.

     Appellant also sent CMSgt RM e-mails saying they should try

to get together.   On one occasion, he asked where she lived and

whether she wanted him to visit her at home.   She declined to

give him her address.   At other times, during staff meetings,

when his Group’s performance exceeded that of others in the

Wing, he would remark to her that “they can go all night,” they

are “better than everybody else” and “bigger than everyone

else,” and “I can go all night.”

     CMSgt RM was not personally offended by Appellant’s

comments.   Because she worked for Appellant’s boss, she was not

intimidated by him.   Nevertheless, she didn’t think his comments


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United States v. Lofton III, No. 10-0565/AF


were appropriate and she lost respect for him.   Once other

allegations had been made against Appellant, she notified her

boss of Appellant’s conduct.   Appellant was convicted of

attempting to establish an inappropriate relationship with CMSgt

RM and making unsolicited comments of a sexual nature to her,

both as conduct unbecoming an officer and a gentleman.   We are

concerned here with the latter offense only.

                                D.

     Appellant’s words cannot be analyzed in a vacuum.      Unlike

the appellant in Brown, Colonel Lofton was not dealing with

fellow officers of equal or nearly equal grades who worked

together on a basis of familiarity, and the Government did not

rely on an Air Force pamphlet to try to establish that

Appellant’s conduct was unbecoming.    Here, the Government

established that Appellant, a senior officer, made these

comments as a means to further his attempt to establish a

personal and unprofessional relationship with CMSgt RM, an

enlisted woman.   CMSgt RM lost respect for him as a military

officer as a result of his comments.   We have no doubt that

Appellant’s actions disgraced him personally and as an officer

such that they compromised his fitness to command and to

successfully complete the military mission.    Taking the evidence

in the light most favorable to the Government, any rational

trier of fact could have found beyond a reasonable doubt each of


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United States v. Lofton III, No. 10-0565/AF


the elements of the offense of conduct unbecoming an officer and

a gentleman.1

                                III.

                                 A.

     After trial, Ms. King, a victims’ advocate who assisted

some of the victims in this case, sent an e-mail to other

members of the Air Force Sexual Assault Prevention and Response

Program (AFSAPRP) community, of which she was a member,

describing the trial, the media interest in the trial, and the

results.    Included was the following passage:

     I sat in for the majority of the testimony, and one of
     the victim’s [sic] had family members sitting in on
     the full trial. One of the challenges was the family
     members often relayed testified information in person
     or via text message to the victims, which was very
     upsetting to the victims. We rotated victim advocates
     being with them and sitting in the courtroom to give
     them accurate feedback.

Trial ended on June 26, 2008.   The staff judge advocate (SJA)

came into possession of a copy of this e-mail and forwarded it

to the defense counsel on June 30, 2008.   That same date, the

defense requested post-trial discovery of the actual text

messages.

     The record of trial was authenticated on July 29, 2008.     On

September 15, 2008, two and one-half months after defense



1
  We have no doubt that Appellant had notice that such conduct
was an offense under the UCMJ.

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United States v. Lofton III, No. 10-0565/AF

counsel’s request, the senior trial counsel notified the defense

that “the government is not under any obligation to produce

these messages, or any other potential evidence regarding these

text messages.”   Unless the text messages were in the custody or

control of the Government, the trial counsel did not have an

obligation to produce them.   R.C.M. 701(a)(2).

     On September 19, 2008, four days after the senior trial

counsel denied the discovery request, the defense counsel

submitted a request to the convening authority to order a post-

trial Article 39(a) hearing, asserting that when she had

     asked [Ms. King] to provide the information, she was
     non responsive. Therefore, we are asking you to
     empower a military judge to convene a post-trial
     Article 39(a) session to determine what happened in
     the courtroom. . . . Because Ms. King has chosen to
     be evasive, we must avail ourselves to the court,
     again.

Appellant suggests in his brief that the convening authority

might not have seen the request for the post-trial Article 39(a)

hearing or the e-mail from Ms. King.   The record does not

contain any evidence that the convening authority either saw the

request for the post-trial Article 39(a) session or that he ever

formally denied it.   But the convening authority was aware of

the issue from both the clemency matters Appellant submitted and

from the Addendum to the Staff Judge Advocate’s Recommendation.

By taking action without granting the motion, it is clear the

convening authority decided not to grant Appellant’s request.


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United States v. Lofton III, No. 10-0565/AF

                                 B.

     When asked, a military judge shall exclude witnesses from

the courtroom “so that they cannot hear the testimony of other

witnesses.”   Military Rule of Evidence (M.R.E.) 615.   “The

purpose of the sequestration rule is to prevent witnesses from

shaping their testimony to match another’s and to discourage

fabrication and collusion.”   United States v. Miller, 48 M.J.

49, 58 (C.A.A.F. 1998), quoted in United States v. Langston, 53

M.J. 335, 337 (C.A.A.F. 2000).   Appellant did not request

sequestration of witnesses.

     The Air Force has a stronger rule:     “Prospective witnesses

will not be present in the courtroom during proceedings except

upon agreement by both sides and approval of the military judge,

or as otherwise required by law.”     Uniform Rule of Practice

Before Air Force Courts-Martial 6.4(C) (Oct. 18, 2006).2     There

is no evidence that the parties had agreed to, or the military

judge had approved, lifting the sequestration rule.     The purpose

of the Air Force sequestration rule appears to be the same as

that of M.R.E. 615 -- “to prevent witnesses from shaping their

testimony . . . and to discourage fabrication and collusion.”

Miller, 48 M.J. at 58.   Court-martial spectators should not



2
  TJAG Policy Memorandum: TJAGC Standards -- 3, Air Force
Standards for Criminal Justice, Attachment 2 (May 15, 2005).
The current Rule 6.4(C) (Feb. 1, 2009) remains the same.

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United States v. Lofton III, No. 10-0565/AF

provide summaries of testimony to sequestered witnesses, and the

parties and the military judge should be vigilant in preventing

such incidents.

                                C.

     Post-trial hearings may be convened, for, among other

things, “the purpose of inquiring into, and, when appropriate,

resolving any matter that arises after trial and that

substantially affects the legal sufficiency of any findings of

guilty or the sentence.”   R.C.M. 1102(b)(2).   The military judge

may direct a post-trial session at any time before

authenticating the record.   R.C.M. 1102(d); Denedo v. United

States, 66 M.J. 114, 124 (C.A.A.F. 2008), aff’d, 129 S. Ct. 2213

(2009); see United States v. Williams, 55 M.J. 302, 304

(C.A.A.F. 2001).   The convening authority may direct a post-

trial hearing at any time before taking initial action.   R.C.M.

1102(d); United States v. Ruiz, 49 M.J. 340, 348 (C.A.A.F.

1998).   By the time Appellant asked for a post-trial hearing,

the military judge had already authenticated the record and,

without direction from an authorized reviewing authority, was

without jurisdiction to conduct a post-trial hearing.   R.C.M.

1102(d).

     We review a convening authority’s decision not to grant a

post-trial hearing for an abuse of discretion.   See Ruiz, 49

M.J. at 348.   A convening authority is “not compelled to” grant


                                12
United States v. Lofton III, No. 10-0565/AF

a post-trial hearing “based merely on unsworn, unsubstantiated

assertions.”   Id.   This is not such a case.

                                 D.

     The Government contends that this appeal must fail because

Appellant’s allegation is based on an unsworn and

unsubstantiated e-mail.   Ms. King’s e-mail was somewhat vague;

it does not mention which witnesses or which family members were

involved or if it occurred during findings, sentencing, or both.

The defense counsel’s assertion that she made an attempt to

interview Ms. King is similarly vague.   There is no explanation

of what the defense counsel said or what Ms. King’s response

was, other than to characterize it as “non responsive” and

“evasive,” whatever those terms signify here.   Nor is there any

evidence that the defense counsel asked the SJA or command for

assistance in getting a more definitive statement from Ms. King

to augment the vague e-mail.   Although Ms. King did not work

locally, she was an Air Force employee and, therefore, subject

to direction by Air Force officials to cooperate in any

investigation.

     In Ruiz, the appellant asserted that at least one of the

court members was subject to unlawful command influence.   49

M.J. at 347.   This Court was unwilling to conclude that the

convening authority abused his discretion in denying a request

to order a post-trial hearing when there was nothing but the


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United States v. Lofton III, No. 10-0565/AF

“unsubstantiated,” unsworn statement of the civilian defense

counsel to support this claim.   Id. at 348.

     Appellant’s case is different.     The basis of his claim is

an unsworn e-mail from an Air Force employee, not from one of

the parties or a disgruntled witness.    It was part of an

official communication describing the court-martial to other

members of the AFSAPRP community.     Under all the circumstances,

we conclude that the defense claim is not unsubstantiated, and

the convening authority abused his discretion in not ordering a

post-trial hearing to determine whether there was reason to

inquire into Ms. King’s allegations and its effect, if any, on

Appellant’s court-martial.

                                 E.

     Prejudice under the sequestration rule of “M.R.E. 615 is

determined by considering whether the witness’s testimony was

affected by the trial proceedings that the witness heard.”

United States v. Quintanilla, 63 M.J. 29, 38 (C.A.A.F. 2006).

We see no reason to employ a different rule for sequestration

required by rules of court.

     Three female witnesses testified against Appellant at

trial -- CMSgt RM, DM, and PP, in that order.    DM was also

called to testify for the defense, but this testimony was

limited to attempts to impeach her credibility.    During this

second testimony, the defense attempted to show DM lied during


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United States v. Lofton III, No. 10-0565/AF

her previous testimony concerning whether she had hired an

attorney and had filed an Equal Employment Opportunity (EEO)

complaint.   DM’s testimony remained consistent with her

testimony for the prosecution.

     Each of the three victims testified to her own private

relationship with Appellant.   CMSgt RM was the first to testify

and so could not have shaped her testimony based on the

testimony of DM or PP.   Nor did she accept victim assistance, so

it is unlikely that her friends or family were involved or that

she could have benefited.   Although it is not clear, it appears

Ms. King’s e-mail was referring to the family and friends of DM,

PP, or both.

     As Appellant was acquitted of all charges involving PP, no

prejudice could have occurred with respect to her testimony.

Thus, we are left to evaluate whether DM’s testimony was shaped

by CMSgt RM’s testimony on direct or by PP’s testimony when DM

was recalled to testify by the defense.   It is unlikely that

DM’s testimony was shaped by CMSgt RM’s testimony:   the

incidents were distinct, there is no evidence of any kind of

relationship between the two, and a review of the testimony does

not provide any basis for concluding that shaping of testimony

or collusion occurred.

     The relationship between PP and DM’s testimony is harder to

evaluate, as they shared the same attorney and had discussed


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United States v. Lofton III, No. 10-0565/AF

filing an EEO complaint against Appellant and possibly taking

other civil action.   Nevertheless, DM’s testimony after PP

testified is remarkably similar to her testimony before PP

testified and not very congruent with that of PP.   Contrary to

PP, DM insisted that she had not filed a formal EEO complaint

and that unless and until she did so, she would not be hiring

the attorney she and PP had consulted.   DM’s testimony was not

shaped by PP’s testimony.   Under these circumstances, we hold

that Appellant was not prejudiced.3   Article 59(a), UCMJ, 10

U.S.C. § 859(a) (2006); Quintanilla, 63 M.J. at 38.

                                IV.

     The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




3
  The dissent suggests that we have unduly presumed “that the
messages would have contained nothing more than a description of
the testimony offered in the courtroom” and that without a post-
trial hearing, we are unable to divine whether the messages
contained other evidence of collusion. United States v. Lofton,
__ M.J. __ (4) (C.A.A.F. 2011) (Effron, C.J., dissenting). We
engage in no such presumption. Appellant’s allegation is that
the testimony was affected by the text messaging. We have
determined on the basis of the record that it was not.

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United States v. Lofton, No. 10-0565/AF


     EFFRON, Chief Judge (dissenting):

     At trial, the defense contended that two of Appellant’s

accusers, DLM and PP, collaborated to fabricate allegations of

sexual assault by Appellant.    The defense focused on evidence

that the two regularly conversed about Appellant, shared

information about the allegations in the course of preparing

administrative requests for financial compensation based upon

the alleged incidents, and did not report the alleged incidents

until they became coworkers.    Although the panel returned a

verdict of not guilty on the charges pertaining to PP, Appellant

was convicted of the charges involving DLM.

     Shortly after the conclusion of Appellant’s court-martial,

the Staff Judge Advocate (SJA) forwarded to defense counsel an

e-mail by Barbara King, Chief of the Sheppard Air Force Base

Sexual Assault Prevention and Response Office, containing

observations about the trial.   The e-mail included the following

comment:

     One of the challenges was the family members
     often relayed testified information in person or
     via text message to the victims, which was very
     upsetting to the victims [sic]. We rotated
     victim advocates being with them and sitting in
     the courtroom to give them accurate feedback.

The defense immediately sent a brief reply to the SJA:

     This is obviously a huge deal. We are requesting
     post-trial discovery for those actual text
     messages as well as have the government talk to
     the family members in question to find out what
United States v. Lofton, No. 10-0565/AF


     was said. Having witnesses informed about
     anything that happened in that courtroom before
     they testified certainly could have played a part
     in influencing their testimony and effected [sic]
     our client’s right to a fair trial.

     In a message rejecting the defense request, the senior

trial counsel stated that “the government is not under any

obligation to produce these messages, or any other potential

evidence regarding these text messages.”   The defense then

formally requested the convening authority to convene a post-

trial session so that a military judge could obtain and consider

the pertinent information under Article 39(a), Uniform Code of

Military Justice, 10 U.S.C. 839(a) (2006).   The defense

emphasized the relationship of the request to the defense

position at trial that “the complaining witnesses were

colluding.”    The defense asked the convening authority to assist

“in finding out just who was sending texts and what those texts

were about.”   The defense took the position that it would have

been improper for the witnesses to have remained in the

courtroom during the testimony, and that the receipt of the

testimony by unauthorized means also would have been improper.

     Shortly thereafter, the defense submitted a formal clemency

request to the convening authority that included a discussion of

the defense request for a post-trial hearing.   The defense noted

that the request for a hearing had been based upon “further

evidence of collusion in the courtroom.”   The defense further


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United States v. Lofton, No. 10-0565/AF


stated that the information about the e-mail was “troubling,

because if it happened, it gave the witnesses a chance to change

their testimony in light of the reported happenings in the

courtroom.”   Defense counsel reminded the convening authority

that “the ramifications of this on the trial we aren’t able to

explore without the intervention of the military judge, or you.”

In a concluding comment, defense counsel stated, “If there is

any doubt these women colluded, it can be resolved in this

hearing.”

     The SJA’s post-trial recommendation to the convening

authority stated:   “The defense does not allege any legal

errors.”    The SJA also offered the following brief reference to

the post-trial developments matters:      “The defense also states

they requested evidence after the trial and the request was

denied by the government.”    The SJA did not discuss the

substance of the defense request, the rationale for denying the

request, or the subsequent defense request for a post-trial

hearing before a military judge.       The convening authority, in

taking action on the case, did not address the defense request.

     I agree with the majority that “the convening authority

abused his discretion in not ordering a post-trial hearing to

determine whether there was reason to inquire into” the

allegations in the e-mail and the “effect, if any, on

Appellant’s court-martial.”   United States v. Lofton, ___ M.J.


                                   3
United States v. Lofton, No. 10-0565/AF


___ (14) (C.A.A.F. 2011).   I respectfully disagree with the

majority’s conclusion that the error did not prejudice

Appellant.   The majority grounds its conclusion upon a

determination that the witnesses’ testimony was not affected by

the texting.   Id. at ___ (16 n.3).    The majority’s conclusion

presumes that the messages would have contained nothing more

than a description of the testimony offered in the courtroom.

In the absence of a post-trial hearing, however, we do not know

the content of any such messages.     We do not know whether such

messages conveyed accurate or inaccurate information about the

trial proceedings; nor do we know whether the messages contained

views, recollections, or references to earlier developments that

could have supported and strengthened the defense theory of

improper collusion by Appellant’s accusers.

     The treatment of the defense request by the trial counsel,

the SJA, and the convening authority leaves unresolved the

question of whether the messages were neutral in content or

supportive of the defense theory of the case.    The defense

identified the problematic nature of the messages on June 30,

2008, just four days after trial, providing the Government with

an early opportunity to resolve the factual and legal

consequences in a prompt and effective manner.    See United

States v. Meghdadi, 60 M.J. 438, 444-45 (C.A.A.F. 2005)

(explaining that one of the purposes of a post-trial Article


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United States v. Lofton, No. 10-0565/AF


39(a) session is to discover and preserve “evidence at the

earliest possible time . . . while still relatively fresh in the

witness’ memory”) (quotation marks omitted).

     During the nearly three-month period between the defense

request and the convening authority’s action on September 29,

2008, the Government treated the defense request in a peremptory

fashion, with the result being that the record on appeal does

not even contain a response by the convening authority to the

defense request for a post-trial Article 39(a) session.   Before

acting on this case, the Court of Criminal Appeals should have

returned the record of trial to the convening authority with

direction that a post-trial session be ordered to determine

whether any messages were sent, to ascertain the content of any

such messages, and to assess the impact of any such messages on

Appellant’s court-martial.   At this stage, we should set aside

the decision of the court below and return the case to the

convening authority for a post-trial Article 39(a) session.    I

respectfully dissent from the majority’s decision to affirm the

findings and sentence without ordering such a proceeding.




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