          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                               Technical Sergeant JAMES P. SAUK
                                     United States Air Force

                                               ACM 38398

                                            20 January 2015

         Sentence adjudged 23 March 2013 by GCM convened at Joint Base
         Andrews, Maryland. Military Judge: Mark L. Allred.

         Approved Sentence: Bad-conduct discharge, confinement for 5 years, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Captain Michael A. Schrama.

         Appellate Counsel for the United States: Major Daniel J. Breen;
         Captain Collin F. Delaney; and Gerald R. Bruce, Esquire.

                                                  Before

                             HECKER, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



HECKER, Senior Judge:

       A general court-martial composed of officer and enlisted members convicted the
appellant, contrary to his pleas, of involuntary manslaughter, aggravated assault, assault,
and negligent homicide, in violation of Articles 119, 128 and 134, UCMJ, 10 U.S.C. §§
919, 928, 934. The court sentenced the appellant to a bad-conduct discharge,
confinement for five years, and reduction to E-1. The convening authority approved the
sentence as adjudged.
       On appeal, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the
appellant contends (1) the evidence is factually and legally insufficient to sustain his
convictions, (2) his trial defense counsel were ineffective, (3) unlawful command
influence made it impossible for him to receive a fair trial and clemency consideration,
(4) he is entitled to relief pursuant to Article 13, UCMJ, 10 U.S.C. § 813, and (5) the
sentence is inappropriately severe. He also contends three of the specifications should be
dismissed as an unreasonable multiplication of charges.

                                                  Background

       The charges in this case stemmed from the death of the appellant’s two month old
son. The infant had been rushed to a local emergency room by paramedics after his
parents called 911 early on the morning of 10 January 2011. When the infant arrived at
the emergency room, he was not breathing, had no pulse, and was not responsive. A
pediatrician was eventually able to restore the infant’s heartbeat, but she observed
indications the child had suffered what she believed to be non-accidental head trauma
(lack of pupil response to light, eye hemorrhages, low body temperature, and seizures).
The infant was transferred to Johns Hopkins Hospital where he could be treated at a
pediatric intensive care unit. His brain began to swell, causing irreversible brain damage.
On 11 January 2011, his parents agreed to take him off life support.

       The appellant was charged with six offenses involving the death of his son:
unpremeditated murder, involuntary manslaughter by culpable negligence, aggravated
assault by force likely to cause death or grievous bodily harm, negligent homicide,
assault, and child endangerment. He was acquitted of the murder charge and child
endangerment charges.

                                              Multiple Offenses

       As noted above, the Government charged the appellant with six separate offenses
for the death of his child, with each offense listing a different level of culpability as to the
death.1 After the panel convicted the appellant of four of these charges, the military
judge merged them for sentencing and instructed the members that they must consider
them as one offense. The appellant now contends the military judge erred when he failed
to sua sponte dismiss the aggravated assault, assault, and negligent homicide offenses.

       We agree these three offenses must be dismissed. The government is authorized
to charge multiple offenses in the alternative based on exigencies of proof.
See United States v. Morton, 69 M.J. 12, 16 (C.A.A.F. 2010). When a panel returns
guilty verdicts as to those alternative charges, however, “‘it [is] incumbent’ either to

1
   Except for the child endangerment specification, the offenses each alleged a single (non-divers) action occurring
between 13 November 2010 (the day the child was born) and 11 January 2011 (the day the child died).


                                                         2                                          ACM 38398
consolidate or dismiss a specification.” United States v. Elespuru, 73 M.J. 326, 329
(C.A.A.F. 2014) (quoting United States v. Mayberry, 72 M.J. 467, 467–68 (C.A.A.F.
2013)) (alteration in original).

       Although we set aside these specifications, the appellant remains convicted of
involuntary manslaughter by culpable negligence. Because the military judge instructed
the panel that they were multiplicious for sentencing and calculated the maximum
confinement as 15 years (based on involuntary manslaughter of a child), we find the
approved and adjudged sentence would have been the same even if these specifications
were dismissed at the trial level.2 See United States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F.
2006) (stating that an appellate court can reassess the sentence if it “can determine to its
satisfaction that, absent any error, the sentence adjudged would have been of at least a
certain severity” as a “sentence of that severity or less will be free of the prejudicial
effects of error”); see also United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013).

                                      Factual and Legal Sufficiency

      The appellant argues that the evidence is legally and factually insufficient to
support his conviction for involuntary manslaughter. We disagree.

       Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of legal and
factual sufficiency de novo. See United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). “The test for legal sufficiency of the evidence is ‘whether, considering
the evidence in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.’” United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner,
25 M.J. 324 (C.M.A. 1987)). The test for factual sufficiency is “whether, after weighing
the evidence in the record of trial and making allowances for not having personally
observed the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325.

       The appellant was convicted of involuntary manslaughter which, as charged here,
required the prosecution to prove beyond a reasonable doubt that (1) the appellant’s son
is dead; (2) his death resulted from the act of the accused in striking him on the head, or

2
    Although not raised as an issue by the appellant, we note the staff judge advocate recommendation (SJAR)
erroneously advised the convening authority that the maximum sentence included twenty-five years confinement.
The defense asked that the findings be set aside or, in the alternative, that his sentence be reduced by ten months.
He did not object to the SJAR or mention the incorrect maximum in the clemency submission. Failure to raise this
issue in a timely manner waives it unless it is plain error. Rule for Courts-Martial 1106(f); United States v. Scalo,
60 M.J. 435, 436 (C.A.A.F. 2005). Although the staff judge advocate was clearly mistaken when he misinformed
the convening authority about the maximum confinement time, the appellant has not made a colorable showing of
possible prejudice. See United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). Under the circumstances of this case,
we do not believe correct advice on the maximum punishment would have foreseeably led the convening authority
to take any action other than the one he did, i.e., approving the sentence as adjudged.


                                                         3                                           ACM 38398
by asserting some other excessive force against his head between on or about
13 November 2010 and on or about 11 January 2011; (3) this act amounted to culpable
negligence; (4) the killing of the child by the appellant was unlawful; and (5) the child
was under the age of 16 years. “Culpable negligence” is defined as a degree of
carelessness, greater than simple negligence, and is a negligent act or omission
accompanied by a culpable disregard for the foreseeable consequences to others of that
act or omission. Manual for Courts-Martial, United States, Part IV, ¶ 44.c.(2)(a)(i).
(2008 ed.). The basis for this charge “may be a negligent act or omission which, when
viewed in the light of human experience, might foreseeably result in the death of another,
even though death would not necessarily be a natural and probable consequence of the act
or omission.” Id.

        It was undisputed that the appellant was alone with his son when the child became
critically ill and stopped breathing. The appellant argues, however, that the evidence is
insufficient to prove he was the person who caused the injuries that resulted in his son’s
death. He notes that the Government and defense experts disagreed about when the fatal
injury was inflicted and that the evidence therefore cannot prove he was the perpetrator.
The appellant further notes that his wife had anger management issues, had acted out
violently towards him, and was under stress due to post-partum depression. He also
points to the testimony of his expert who indicated the appellant’s routine handling of his
son that night could have triggered a re-bleed from a preexisting hemorrhage caused by
someone else.

       We have reviewed all the evidence, including the extensive expert testimony, and
taken into account the arguments raised by the appellant. The medical evidence
convincingly revealed that the infant suffered non-accidental injuries, including
significant damage to his brain from blunt force trauma. Despite significant efforts by
the defense to portray the appellant’s wife as the cause of the infant’s death, the members
were convinced beyond a reasonable doubt that the appellant caused the infant’s death
though his own culpable negligence. Viewing the evidence in the light most favorable to
the Government, we are convinced a rational factfinder could find beyond a reasonable
doubt the appellant was guilty of this offense. Upon our own review of the evidence in
the record of trial, we are personally convinced of the appellant’s guilt beyond a
reasonable doubt.

                            Ineffective Assistance of Counsel

       The appellant contends his three trial defense counsel were ineffective because
they failed to properly handle voir dire and member challenges and failed to present a
good military character defense. We disagree.

      This court reviews claims of ineffective assistance of counsel de novo.
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009). When reviewing such claims,


                                             4                                ACM 38398
we follow the two-part test outlined by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F.
2007). Our superior court has applied this standard to military courts-martial, noting that
“[i]n order to prevail on a claim of ineffective assistance of counsel, an appellant must
demonstrate both (1) that his counsel’s performance was deficient, and (2) that this
deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F.
2010) (citing Strickland, 466 U.S. at 687; Mazza, 67 M.J. at 474).

        The appellant bears the burden of establishing his trial defense counsel were
ineffective. See United States v. McConnell, 55 M.J. 479, 484 (C.A.A.F. 2001). The law
presumes counsel actions to be appropriate, and we will not second-guess a trial defense
counsel’s reasonable strategic or tactical decisions. See United States v. Morgan, 37 M.J.
407, 410 (C.M.A. 1993); United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009). To
prevail on a claim of ineffective assistance of counsel, the appellant “must rebut this
presumption by pointing out specific errors made by his defense counsel which were
unreasonable under prevailing professional norms. The reasonableness of counsel’s
performance is to be evaluated from counsel’s perspective at the time of the alleged error
and in light of all the circumstances.” United States v. Scott, 24 M.J. 186, 188 (C.M.A.
1987) (citation omitted). We need not decide if defense counsel was deficient during
post-trial representation if the second prong of Strickland regarding prejudice is not met.
See United States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005).

1. Voir dire and member challenges

       The appellant argues his trial defense counsel were ineffective for not specifically
asking the potential panel members about a December 2012 Air Force Times article that
referred to his case and for leaving certain panel members on the case.

        In response to a question from the military judge, all prospective panel members
said they had no knowledge of the facts or events of the case. The appellant’s senior
defense counsel conducted a limited follow-up by asking if any of them thought they had
heard about the case or “read about it in the Air Force Times or anywhere else.” All the
potential members answered negatively. In their court-ordered declarations, two of the
appellant’s defense counsel state the defense deliberately made the strategic decision to
not specifically draw the members’ attention to the actual article. The defense team
believed the members would answer truthfully if they knew about the case from that
article and the defense did not want to refresh their memory if they could not recall
reading it. The counsel’s declarations provide sound and reasonable explanations for the
approach taken during voir dire which we will not second-guess. Morgan, 37 M.J. at
410; United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (“Defense counsel do not
perform deficiently when they make a strategic decision to accept a risk or forego a
potential benefit, where it is objectively reasonable to do so.”)



                                             5                                ACM 38398
        In his declaration, the appellant also indicates that several panel members had
identified professional and personal experience in “investigative, abuse, and medical
issues” which could have given them a bias which rendered them incapable of impartially
weighing the evidence in the case. We disagree that his counsel were ineffective for not
challenging these members for cause or exercising the defense’s sole peremptory
challenge on one of them. First, defense counsel did successfully challenge one
prospective member based on his friend’s previous exposure to child abuse. The defense
also concurred in two challenges involving prospective members’ experience in law
enforcement and another member’s indication of bias. As to the panel members who
remained, these members did not possess an actual or implied bias that would require
their excusal from the case. See Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) (“A
member shall be excused for cause whenever it appears that the member . . . [s]hould not
sit as a member in the interest of having the court-martial free from substantial doubt as
to legality, fairness, and impartiality.”); United States v. Napoleon, 46 M.J. 279, 283
(C.A.A.F. 1997) (stating that actual bias exists where any bias will not yield to the
evidence presented and the judge’s instructions); United States v. Bagstad, 68 M.J. 460,
462 (C.A.A.F. 2010) (stating that even if a panel member disclaims bias, implied bias
exists when most people in the same position would be prejudiced). All the members
affirmed their impartiality and ability to decide the case solely on the evidence before
them. The defense thoroughly explored any issues of possible bias in individual voir
dire, including one member who had previously served in security forces. As there was
no evidence of actual or implied bias on the part of these panel members, the defense
counsel’s decision to not challenge these panel members falls within the bounds of
reasonable performance. Additionally, all three defense counsel stated that the appellant
was actively involved in the defense team’s discussion about the results of the voir dire
process and who they should challenge. By failing to challenge these members at trial,
the appellant waived this issue. See R.C.M. 912(f)(2)(B) and (f)(4) (failing to raise a
challenge to a panel member in a timely manner waives the issue); United States v. Stone,
26 M.J. 401, 403 (C.M.A. 1988).

       Lastly, the appellant contends MSgt K should have been challenged as a panel
member during the court-martial because the panel member had a professional
relationship with the appellant. While the panel was reviewing the appellant’s
performance reports during the sentencing phase, MSgt K sent a note to the military
judge indicating he had just realized he was stationed at Scott Air Force Base at the same
time as the appellant and the two worked in the same building for a short period of time.
The parties agreed MSgt K did not need to be questioned about this note. In his
declaration, the appellant says the note triggered his own memory and he recalled having
weekly contact with MSgt K over a two-year period. He contends MSgt K could have
had a preconceived bias against the appellant based on this work history. In his
declaration, one of the appellant’s trial defense counsel states he had no concerns about
MSgt K being biased against the appellant because MSgt K did not recall knowing the
appellant and the appellant had not had any disciplinary or other problems at that base.


                                            6                                ACM 38398
Trial defense counsel’s affidavit also notes the defense considered MSgt K to be a
favorable member based on his answers to questions in voir dire. These are sound and
reasonable explanations for the decision which we will not second-guess. See Morgan,
37 M.J. at 410; Datavs, 71 M.J. at 424. Likewise, we see nothing about MSgt K’s
previous contact with the appellant that causes any concern that MSgt K might be biased
against him in actuality or in appearance.

2. Good character defense

       The appellant’s declaration simply states his counsel were ineffective for not
pursuing a good military character defense. He has not provided any specificity as to
what any such witnesses would have said if they had been called to testify at trial. In that
posture, the appellant has not demonstrated prejudice under the second prong of
Strickland. See United States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006).

       Additionally, the declarations from his trial defense counsel explain the process
they undertook in an effort to procure the evidence necessary to raise this defense. After
considerable effort, the defense team had not found any witnesses willing to give this
type of testimony in a persuasive manner. The declarations further discuss the defense’s
concern about what the appellant’s wife may say in response to this defense, especially
because she refused to meet with the defense counsel prior to her testimony in court. The
decision to forgo putting on this evidence on the merits had a reasonable, tactical basis.
While the appellant may disagree with the decision in retrospect, it did not fall below
Strickland’s objective standard of reasonableness. See United States v. McConnell,
55 M.J. 479, 485 (C.A.A.F. 2001).

                           Unlawful Command Influence (UCI)

        We review allegations of UCI de novo. United States v. Wallace, 39 M.J. 284,
286 (C.M.A. 1994). Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in part: “No person
subject to this chapter may attempt to coerce or, by any unauthorized means, influence
the action of a court-martial or any other military tribunal or any member thereof, in
reaching the findings or sentence in any case . . . .” The appellant has the initial burden
of raising UCI. United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). Once the
issue of command influence is properly placed at issue, “no reviewing court may properly
affirm findings and sentence unless [the court] is persuaded beyond a reasonable doubt
that the findings and sentence have not been affected by the command influence.”
United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986). At the appellate level, we
evaluate UCI in the context of a completed trial using the following factors: “[T]he
defense must (1) show facts which, if true, constitute [UCI]; (2) show that the
proceedings were unfair; and (3) show that [UCI] was the cause of the unfairness.”
United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 2003) (citing Stombaugh, 40 M.J. at
213); see also United States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003); United States


                                             7                                 ACM 38398
v. Reynolds, 40 M.J. 198, 202 (C.M.A. 1994).

       The appellant contends the publishing of the Air Force Times article and its
distribution on base and amongst members of his unit made it impossible for him to
receive a fair trial and fair consideration from the convening authority during the
clemency stage of his case. The appellant elected not to raise this issue at trial; the sole
evidence of his claims comes from his affidavit submitted on appeal. We find the
appellant has not met his burden of establishing facts that would constitute unlawful
command influence. To the extent he is arguing that pretrial publicity adversely affected
his court-martial, we also find he has failed to meet his burden in that regard.
United States v. Simpson, 58 M.J. 368, 372 (C.A.A.F. 2003) (stating that the defense may
raise the issue of unfair pretrial publicity by demonstrating either presumed or actual
prejudice). As noted above, the members of the court-martial panel had no knowledge of
this article. Furthermore, even assuming the convening authority was exposed to the
purported article, there is no reason to believe that the convening authority would be
adversely affected by a newspaper article when deciding whether to grant clemency to
the appellant.
                                   Pretrial Punishment

        Article 13, UCMJ, prohibits pretrial punishment:

                          No person, while being held for trial, may be subjected
                  to punishment or penalty other than arrest or confinement
                  upon the charges pending against him, nor shall the arrest or
                  confinement imposed upon him be any more rigorous than the
                  circumstances required to insure his presence, but he may be
                  subjected to minor punishment during that period for
                  infractions of discipline.

       At trial, the appellant and his defense counsel told the military judge that the
appellant had not been subjected to illegal pretrial punishment under Article 13, UCMJ.
Through two declarations submitted on appeal, the appellant now argues he is entitled to
sentence credit because he was illegally punished prior to trial. He also argues his
counsel were ineffective for not raising this issue.

      The appellant contends he was subjected to punishment when, after law
enforcement became aware that his infant daughter had been injured,3 he was

3
    After the death of their infant son, the appellant and his wife had a second baby in late April 2012. On 24
September 2012, after noticing that the infant’s arm was limp, the appellant’s wife took her to a pediatrician. Full
skeletal surveys found seventeen arm and leg fractures of a type that are caused by pulling, yanking, or twisting the
extremities and were highly specific for child abuse. The appellant was acquitted of aggravated assault and child
endangerment regarding his daughter.



                                                         8                                           ACM 38398
(1) restricted to a dormitory room for 72 hours and then required to stay on base for
30 days, (2) required to live on base until his trial, and (3) issued a protection order that
prohibited him from seeing and calling his children. The defense counsel’s detailed
declarations describe their investigation of these events, what they found during that
investigation, and the reasons they believed the commander’s actions in requiring the
appellant to live on base and have restricted access to his children were undertaken to
protect the appellant and his children, and not as punishment, and could actually benefit
the appellant.

        Our superior court has held that an appellant’s failure to raise the issue of illegal
pretrial confinement at trial “waives that issue for purposes of appellate review absent
plain error.” United States v. Inong, 58 M.J. 460, 465 (C.A.A.F. 2003). In subsequent
case law, however, that court clarified that it is forfeiture that is tested for plain error;
waiver is not. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (stating
that military courts had failed to “consistently distinguish between the terms ‘waiver’ and
‘forfeiture.’”). Waiver is the “intentional relinquishment or abandonment of a known
right,” which precludes appellate review of an issue. Id. (quoting United States v. Olano,
507 U.S. 725, 733 (1993)) (internal quotation marks omitted). Forfeiture is “the failure to
make the timely assertion of a right” leading to plain error review on appeal. Id.

       Here, the appellant and his three defense counsel did not raise any issue associated
with any aspects of the appellant’s pretrial treatment. When specifically asked by the
military judge regarding illegal pretrial punishment, the appellant and his defense counsel
specifically disavowed any Article 13, UCMJ, issue. Under these circumstances, we find
the appellant waived this issue. Furthermore, while the appellant’s waiver of this issue
prevented a full development of his claims on the record, based on the information that is
available, we find defense counsel’s conclusions to be rational and their decision not to
raise an Article 13, UCMJ, issue to be reasonable. Accordingly, defense counsel were
not ineffective for not raising this issue at trial.

       The appellant also argues he should be given confinement credit for 22 March
2013 (the day findings were announced) as he was restricted to his room overnight while
awaiting the sentencing proceeding the following day. We agree and order this relief in
our decretal paragraph. See United States v. Mason, 19 M.J. 274 (C.M.A. 1985).

                                     Sentence Severity

       This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offense[s], the appellant’s record of service,


                                              9                                 ACM 38398
and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009). Although we are accorded great discretion in
determining whether a particular sentence is appropriate, we are not authorized to engage
in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

       The appellant next avers his sentence is inappropriately severe. We disagree. We
consider whether the appellant’s sentence was appropriate “judged by ‘individualized
consideration’ of [the appellant] ‘on the basis of the nature and seriousness of the offense
and the character of the offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A. 1959)). We
have given individualized consideration to this particular appellant, the nature and
seriousness of his offense, the appellant’s record of service, and all other matters
contained in the record of trial. We find the approved sentence was clearly within the
discretion of the convening authority, was appropriate in this case, and was not
inappropriately severe.

                                        Conclusion

       The appellant will be credited with one day against his sentence to confinement.
The findings of guilty as to Charge III (Specifications 1 and 2) and Charge IV
(Specification 1) are set aside, and those Charges and Specifications are dismissed.
Accordingly, the remaining findings (Charge II and its Specification) and the approved
sentence are correct in law and fact, and no error materially prejudicial to the substantial
rights of the appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a),
866(c).     Accordingly, the modified findings and the approved sentence are
AFFIRMED.


              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




                                             10                                ACM 38398
