 This opinion is subject to administrative correction before final disposition.




                                  Before
                    CRISFIELD, TANG, and LAWRENCE
                         Appellate Military Judges

                          _________________________

                            UNITED STATES
                                Appellee

                                       v.

                      Matthew P. HOFFMANN
                     Corporal (E-4), U.S. Marine Corps
                                 Appellant

                              No. 201400067

             Argued: 21 February 2018 1—Decided: 10 June 2020

   Appeal from the United States Navy-Marine Corps Trial Judiciary up-
   on further review and following remand from the United States Court
   of Appeals for the Armed Forces.

                               Military Judge:
                               Keith A. Parrella

   Sentence adjudged 18 October 2016 by a general court-martial con-
   vened at Marine Corps Base Camp Lejeune, North Carolina, consist-
   ing of officer members. Sentence approved by the convening authority:
   reduction to E-1, forfeiture of all pay and allowances, confinement for
   7 years, and a dishonorable discharge.




   1 This Court heard oral argument in this case at The George Washington Univer-
sity Law School, Washington, District of Columbia, as part of the Court’s Project
Outreach.
                    United States v. Hoffmann, No. 201400067
                       Reconsidered Opinion of the Court

                             For Appellant:
              Commander Donald R. Ostrom, JAGC, USN (argued)
                      Major Thomas Fricton, USMC

                                  For Appellee:
                     Captain Brian L. Farrell, USMC (argued)
                              Mr. Brian Keller, Esq.
                     Lieutenant Megan Marinos, JAGC, USN
                         Captain Sean M. Monks, USMC
                      Lieutenant Kimberly Rios, JAGC, USN

   Senior Judge TANG delivered the opinion of the Court, in which Chief
   Judge CRISFIELD and Judge LAWRENCE joined.

                             _________________________

           This opinion does not serve as binding precedent, but
                may be cited as persuasive authority under
                 NMCCA Rule of Appellate Procedure 30.2.

                             _________________________

TANG, Senior Judge:
    A panel of officer members sitting as a general court-martial convicted
Appellant, contrary to his pleas, of indecent liberties with a child in violation
of Article 120, Uniform Code Military Justice [UCMJ], 10 U.S.C. § 920 (2007)
and a novel specification alleging attempted child enticement under Article
134, UCMJ, 10 U.S.C. § 934 (2007). 2 Although the members sentenced Appel-
lant to 10 years’ confinement, the convening authority approved only seven
years’ confinement so as not to exceed the sentence awarded in Appellant’s
first trial.
    This case is before us for a third time. On 23 August 2013, in Appellant’s
first trial, he was convicted of offenses involving minor child “Ryan” and
possession of child pornography. 3 This Court issued its opinion on that court-
martial, Hoffmann I, in 2014. 4 On 18 February 2016, in Hoffmann II, our


   2   The members acquitted Appellant of attempted sodomy of a child.
   3 He was acquitted of similar offenses involving “Alex” and “Pete.” All names are
pseudonyms.
   4   United States v. Hoffmann, 74 M.J. 542 (N-M. Ct. Crim. App. 2014).




                                          2
                    United States v. Hoffmann, No. 201400067
                       Reconsidered Opinion of the Court

superior court set aside the findings and sentence, dismissed the child por-
nography charges with prejudice and authorized a rehearing on the three
remaining charges involving Ryan. 5
   Following Appellant’s rehearing—in which he was convicted of two of the
charges involving Ryan—this Court issued an opinion, Hoffmann III, 6 ad-
dressing Appellant’s original six assignments of error [AOEs]: 7
   (1) The military judge abused his discretion by admitting propensity evi-
dence under Military Rule of Evidence [M.R.E.] 414; 8
   (2) The military judge erred when he failed to instruct the members on
the Government’s burden to prove by a preponderance of the evidence that
the uncharged offenses occurred;
    (3) The military judge erred when he did not extend his ruling that Colo-
nel (Col) W was disqualified from providing input as staff judge advocate on
the Article 34, UCMJ, letter to further disqualify him from other areas of
pretrial advice;
   (4) The military judge should have recused himself;
   (5) Appellant’s sentence is inappropriately severe and highly disparate
from a closely related case; 9 and
    (6) There is error requiring corrective action in Appellant’s Report of Re-
sults of Trial due to an incorrect Defense Incident-Based Reporting System
(DIBRS) code relating to the Specification of the Additional Charge. 10



   5   United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016).
   6 United States v. Hoffmann, No. 201400067, 2018 CCA LEXIS 326 (N-M. Ct.
Crim. App. Jul. 9, 2018) (unpub. op.).
   7 The AOEs have been renumbered for ease of discussion. Oral argument was
heard by that earlier panel of this Court on renumbered AOEs 1, 3, and 4. AOE 2 was
a supplemental AOE filed prior to oral argument.
   8   Manual for Courts-Martial, United States [MCM] (2012 ed.).
   9  Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Be-
cause Appellant had already been released from confinement by the time he filed his
original brief with these AOEs, he only sought disapproval of the punitive discharge.
   10 Pursuant to this Court’s decision in United States v. Baratta, 77 M.J. 691, 695
(N-M. Ct. Crim. App. 2018), in which we found we lack jurisdiction to correct DIBRS
codes in the report of results of trial, we summarily reject Appellant’s final AOE as
the Report of Results of Trial in this case accurately reflects the findings and sen-
tence. “[DIBRS codes] are neither findings nor parts of a sentence, thus we do not



                                           3
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

    After this Court issued its opinion, Appellant moved the Court to recon-
sider in light of United States v. Guardado, 11 raising an AOE not previously
briefed. The Court specified briefing on the following issues:
    (7) Whether the Specification of the Additional Charge, alleging a novel
violation of Article 134, was preempted by Article 120(j), UCMJ, 10 U.S.C.
§ 920(j) (2006), or was otherwise impermissible in light of the Presidentially-
defined Article 134 offenses;
    (8) Whether the military judge properly instructed the members on the
Specification of the Additional Charge by failing to allow a defense of mistake
of fact as to age and failing to require the Government to prove Appellant
intended to commit illegal sexual activity with Ryan; and
   (9) Whether the military judge erred by incorporating the maximum pun-
ishment from 18 U.S.C. § 2422(b) for the Specification of the Additional
Charge.
   In his brief answering the Court’s specified issues, Appellant raised a
supplemental AOE:
    (10) Whether the specifications constituted an unreasonable multiplica-
tion of charges.
   This Court then specified two additional issues for briefing:
    (11) Whether the military judge committed materially prejudicial error by
failing to instruct the members that the attempt offense alleged in the Speci-
fication of the Additional Charge requires proof of a substantial step; 12 and
    (12) Whether the Specification of the Additional Charge, as a novel Article
134, UCMJ, offense, contains “words of criminality” sufficient to state an
offense. 13
   After granting reconsideration, the Court of Appeals for the Armed Forces
[CAAF] decided two cases, United States v. Davis 14 and United States v.



have the authority to act upon them.” Id. at 695 (citing Article 66(c), UCMJ); see also
United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
   11   77 M.J. 90 (C.A.A.F. 2017).
   12   See United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013).
   13  See United States v. Vaughan, 58 M.J. 29, 35 (C.A.A.F. 2003) (citing United
States v. Davis, 26 M.J. 445, 447-48 (C.M.A. 1988)); see also United States v. Hender-
son, 32 M.J. 941 (N-M. Ct. Crim. App. 1991).
   14   79 M.J. 329 (C.A.A.F. 2020).




                                            4
                    United States v. Hoffmann, No. 201400067
                       Reconsidered Opinion of the Court

Avery, 15 that are dispositive of many of these issues. We find any claim of
instructional error in relation to the Specification of the Additional Charge
was waived, and we decline to grant relief. We remain convinced—consistent
with this Court’s prior opinion in Hoffmann III—that AOEs 1-6 lack merit,
and we decline to grant relief.

                                 I. BACKGROUND

      In April 2011, a man in a silver sport utility vehicle [SUV] with a yellow
New York license plate drove past Ryan, a 13-year-old boy, several times
while Ryan was walking home from school in Jacksonville, North Carolina,
the city immediately adjacent to Marine Corps Base Camp Lejeune [Camp
Lejeune]. On the third pass, the man pulled up and asked Ryan if he wanted
a “quickie.” 16 Ryan declined, and the man asked if Ryan knew what a “quick-
ie” was. Ryan said “no,” and the man drove around the block again. The man
drove up to Ryan a fourth time and asked, “Are you sure,” and, “You’ll like
it.” 17 Ryan again declined and ran home. He immediately reported the inci-
dent and provided a description of the vehicle to the local Jacksonville Police
Department. Police were unable to locate the SUV driver at that time.
   In September 2011, a man in a light-colored SUV slowly drove past Alex,
a 13-year-old boy, while he was walking home from school aboard Camp
Lejeune. On the first two passes, Alex noticed the man was wearing a desert
camouflage uniform and making a gesture with his hand that Alex took to
indicate fellatio. The third time the man drove by, he made the same gesture
and asked Alex if he wanted to go for a ride. Alex declined, and the man
drove away.
    Also in about September 2011, a man in a silver SUV drove past Pete, a
10-year-old boy, while he was walking home from school aboard Camp Lejeu-
ne. Pete noticed the man drive by making a similar indecent gesture to indi-
cate fellatio. Pete noticed the SUV had a yellow license plate and a spare
wheel on the back, and the male driver was wearing a green military under-
shirt.
   In November 2011, Alex saw the SUV that had approached him in Sep-
tember in the same vicinity of Camp Lejeune while he was walking home



   15   No. 19-0259, 2020 CAAF LEXIS 151 (C.A.A.F. Feb. 27, 2020).
   16   Record at 423-26.
   17   Id.




                                          5
                      United States v. Hoffmann, No. 201400067
                         Reconsidered Opinion of the Court

from school. He took a picture of it and immediately called his mother, who
promptly drove to meet him. While returning home, Alex and his mother
passed the SUV and began following it. A high speed chase ensued, but Alex’s
mother was unable to keep up with the SUV. She noticed the make and mod-
el of the SUV in addition to the hard case on the rear-mounted spare tire and
yellow New York license plate. 18
    Pete’s mother observed the on-base car chase, wrote down the SUV’s li-
cense plate number, and provided it to Alex’s mother. 19 Alex’s mother called
her husband and gave him a description of the car and the license plate num-
ber. He was working on Camp Lejeune, and soon thereafter he located the
SUV, followed it to a work site, and notified base police. Minutes later, secu-
rity personnel arrived, identified the vehicle as belonging to Appellant, en-
tered Appellant’s workplace, and took Appellant into custody.
    While the Naval Criminal Investigative Service [NCIS] was investigating
the September and November on-base incidents involving Alex and Pete, they
notified local police and learned of the April off-base incident involving Ryan.
Now having a suspect, the Jacksonville Police Department conducted a pho-
tographic line-up with Ryan, who identified Appellant with “95 percent cer-
tainty” as the man driving the SUV who enticed him. 20

                                   II. DISCUSSION

A. Legal Challenges to the Specification of the Additional Charge
    In this case, the Government intended to charge Appellant with an of-
fense paralleling the federal child enticement statute under 18 U.S.C.
§ 2422(b). That statute reads, in pertinent part:
         Whoever, using . . . any facility or means of interstate . . . com-
         merce, . . . knowingly persuades, induces, entices, or coerces
         any individual who has not attained the age of 18 years, to en-
         gage in prostitution or any sexual activity for which any person
         can be charged with a criminal offense, or attempts to do so, . . .
         shall be fined under this title and imprisoned not less than 10
         years or for life.



   18   Id. at 318.
    The license plate number recorded by Pete’s mother matched Appellant’s plate
   19

number, with the exception of one letter. Record at 361-62.
   20   Record at 390, 441; Prosecution Exhibit 4, 5.




                                            6
                    United States v. Hoffmann, No. 201400067
                       Reconsidered Opinion of the Court

    The Government incorporated some but not all of the elements of that
statute in a novel Article 134 Clause 1 and 2 offense, which originally read: 21
             In that [Appellant] . . . did . . . knowingly attempt to per-
         suade, induce, and entice [Ryan], an individual who had not at-
         tained the age of 18 years, to engage in sexual activity, which
         conduct was of a nature to bring discredit upon the armed forc-
         es and prejudicial to good order and discipline in the armed
         forces. 22
    During Appellant’s first trial, the members acquitted him of the Clause 1
language alleging his conduct was prejudicial to good order and discipline.
During his rehearing, Appellant faced only a Clause 2, service-discrediting
offense. We analyze the propriety of this offense under Clause 2 only. On its
face, the specification tracks the language of 18 U.S.C. § 2422(b), except it
omits the federal interstate commerce jurisdictional nexus and the require-
ment that Appellant intended to entice the minor (under 18 years) to engage
in prostitution or criminal sexual activity.
    This novel specification, and the way it was instructed upon and treated
at trial, has given rise to many legal challenges.

   1. Preemption
    Several different provisions and doctrines govern the propriety of charg-
ing offenses under Article 134, UCMJ. None operates to preclude the specifi-
cation alleged in this case.
   First, as the Manual for Courts-Martial [Manual] explains under Part IV,
paragraph 60.c.(5)(a):
             The preemption doctrine prohibits application of Article 134
         to conduct covered by Articles 80 through 132. For example,
         larceny is covered in Article 121, and if an element of that of-
         fense is lacking—for example, intent—there can be no larceny
         or larceny-type offense, either under Article 121 or, because of
         preemption, under Article 134. Article 134 cannot be used to
         create a new kind of larceny offense, one without the required




   21 As Appellant’s acts were not committed using a facility of interstate commerce,
the Government could not charge the federal statute as an Article 134, Clause 3
offense.
   22   Charge Sheet (emphasis added).




                                         7
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

         intent, where Congress has already set the minimum require-
         ments for such an offense in Article 121.
    Next, the CAAF has interpreted the Manual to limit use of novel Article
134 offenses to charge offenses that are already Presidentially enumerated.
The Manual states, “If conduct by an accused does not fall under any of the
enumerated Article 134 offenses (paragraphs 61 through 113 of this Part), a
specification not listed in this Manual may be used to allege the offense.” 23 In
United States v. Guardado, 24 the CAAF held that “if an offense is ‘already
listed inside [Article 134’s] framework,’ it may not be charged as a ‘novel’
general disorder offense.” 25 To allege an already listed offense as a novel
offense violates not only the President’s limitation in paragraph 60.c.(6)(c)—
now paragraph 60.c.(c)(a) in the 2019 Manual—but such action may also
raise due process concerns where such a charging action “delet[es] a vital
element” and effectively reduces the Government’s burden of proof. 26
    Although the doctrine of preemption limits the use of novel Article 134,
UCMJ, offenses to charge behavior not already covered by other UCMJ arti-
cles, it is expressly permissible to allege federal statutes as Article 134,
Clause 3 offenses, so long as all elements of the federal statute are met. In
addition, it is permissible to allege what would otherwise constitute federal
offenses under Article 134, Clause 1 or 2, even if the offense does not meet all
of the elements of the federal statute. 27




   23 MCM, Part IV, ¶ 60.c.(6)(c) (2008 ed.). The 2008 Manual applies to Appellant’s
substantive offenses based on the date of the offenses. Appellant was arraigned after
the 2012 Manual was issued; that version of the Manual covered trial procedure.
This provision appears identically in both the 2008 and 2012 Manuals under Part IV,
paragraph 60.c.(6)(c), and it was nearly identically replicated in the 2016 and 2019
Manuals, as part of paragraph 60.c.(6)(a).
   24   77 M.J. 90 (C.A.A.F. 2017).
   25Id. at 95 (emphasis and alteration in original) (quoting United States v. Reese,
76 M.J. 297, 302 (C.A.A.F. 2017)) (both cases analyzing the language in the 2012
MCM, under paragraph 60.c.(6)(c)).
   26   Id. at 96.
   27  United States v. Long, 6 C.M.R. 60, 65 (C.M.A. 1952) (“We are of the opinion
that crimes and offenses not capital, as defined by Federal statutes, may be properly
tried as offenses under clause (3) of Article 134, but that if the facts do not prove
every element of the crime set out in the criminal statutes, yet meet the require-
ments of clause (1) or (2), they may be alleged, prosecuted and established under one
of those.”)




                                         8
                      United States v. Hoffmann, No. 201400067
                         Reconsidered Opinion of the Court

    Whether an offense is preempted is a question of statutory interpretation,
which, as a question of law, we review de novo. 28 An Article 134 offense is
preempted by an offense under Articles 80-132 if “(1) Congress intended to
limit prosecution for . . . a particular area of misconduct to offenses defined in
[those] specific articles of the Code, and (2) the offense charged is composed of
a residuum of elements of a specific offense.” 29 A court may not infer congres-
sional intent unless Congress has made its intention clear “through direct
legislative language or express legislative history that particular actions or
facts are limited to the express language of an enumerated article.” 30
    As an initial matter, we note that the CAAF has explicitly affirmed the
use of the federal child enticement statute under Article 134, UCMJ, Clause
3. In United States v. Wheeler, 31 the CAAF held that Article 120b(c), UCMJ
(2012), 32 did not preempt an Article 134, UCMJ, Clause 3 charge alleging a
violation of 18 U.S.C. § 2422(b) for attempted enticement of a child as a crime
or offense not capital. The court wrote that “enticement is not addressed
expressly under Article 120b, UCMJ,” nor is enticement otherwise covered
under the other enumerated UCMJ Articles (80-132). 33 The court further
wrote that there was no “legislative intent” indicating that Congress intended
to occupy the field of all child sexual offenses when it legislated Article
120b. 34 Charging the federal statute did not serve to lessen the government’s
evidentiary burden by “circumventing [a] mens rea element or removing a
specific vital element from an enumerated UCMJ offense.” 35
   Appellant’s case is distinguishable from Wheeler in that: (1) it alleges an
Article 134, UCMJ, Clause 2, as opposed to Clause 3, offense; and (2) it does




   28   See Avery, 2020 CAAF LEXIS 151 at *3.
   29 Id. at *5 (alteration in original) (quoting United States v. Curry, 35 M.J. 359,
360-61 (C.M.A. 1992)).
   30   Id. (quoting United States v. Anderson, 68 M.J. 378, 387 (C.A.A.F. 2010)).
   31  77 M.J. 289 (C.A.A.F. 2018) (holding the Government was not preempted by
Article 120(b) from charging an 18 U.S.C. § 2422(b) offense under Article 134, Clause
3).
   32   Sexual abuse of a child by commission of a lewd act.
   33   Id. at 292.
   34   Id.
   35   Id. at 293.




                                            9
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

not allege every element of 18 U.S.C. § 2422(b). 36 However, applying the logic
of Wheeler (holding it is permissible to charge the federal child enticement
statute) and Long (holding it is permissible to charge a novel Article 134
offense that omits some elements of a federal statute), we find that it was
permissible to charge an Article 134, UCMJ, Clause 2 offense that was mod-
elled after 18 U.S.C. § 2422(b). 37 We believe Wheeler and Long are dispositive
of this issue. However, because Appellant makes specific preemption chal-
lenges, we assess those below.

         a. Article 120(j), UCMJ
    Appellant argues the specification fails to state an offense because it is
preempted by Article 120(j), UCMJ, 10 U.S.C. § 920(j) (2007), indecent liber-
ties with a child.
   The elements of then-existing Article 120(j) were:
   (1) that the Accused committed a certain act or communication; (2) that
the act or communication was indecent; (3) that the Accused committed the
act or communication in the physical presence of the victim; (4) that the
Accused committed the act or communication with the intent to arouse, ap-
peal to, or gratify the sexual desire of any person; and (5) that at the time,
the alleged victim was under 16 years of age. 38
    Appellant argues this offense, and Article 134 indecent language, both
“occupy the field of misconduct the government alleged.” 39 However, any such
argument relies upon framing the Specification of the Additional Charge as a
communication-type offense. Appellant was convicted of two related offenses
during his rehearing: taking indecent liberties in the presence of Ryan by
communicating indecent language and attempting to persuade, induce, and
entice him to sexual activity. This specification refers to the whole of Appel-



   36 The specification omits the interstate commerce nexus and the element that
Appellant attempted to persuade, induce, entice, or coerce Ryan to “engage in prosti-
tution or any sexual activity for which any person can be charged with a criminal
offense.” 18 U.S.C. § 2422(b).
   37 Whether this offense—alleging some but not all of the elements of 18 U.S.C.
§ 2422(b)—merits the same maximum punishment as that authorized under 18
U.S.C. § 2422(b) is a different question.
   38   MCM, pt. IV, ¶ 45.b.(10) (2008).
   39 Appellant’s Brief on Specified Issues and Supplemental Assignments of Error
of 9 Nov 2018 [Appellant’s Brief on Specified Issues] at 10.




                                           10
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

lant’s actions of driving past Ryan multiple times, getting his attention, and
attempting to convince Ryan to have sex with him. Framing this specification
as an offense merely relating to communication misstates the specification.
Accordingly, we reject the comparison to Article 120(j) and find the logic of
Wheeler controlling. Article 120(j), UCMJ, does not preempt the novel Article
134, UCMJ, offense alleged in the Specification of the Additional Charge.
    The central concern of the preemption doctrine is to prevent the Govern-
ment from “tak[ing] an extant UCMJ offense and remov[ing] a vital element
to create a diluted crime under Article 134, UCMJ.” 40 There is no UCMJ
offense that covers the act of attempted enticement of a child. Therefore, this
offense is not preempted by Article 120(j), which—though it could be drafted
to allege attempted enticement—does not expressly cover attempted entice-
ment. Although the court in Wheeler interpreted a later version of Article
120b, UCMJ, we find the logic in Wheeler controlling. Although Article
120b(c) could be used to allege the offense Wheeler committed, that offense
focused on indecent conduct or communication of indecent language. By
contrast, 18 U.S.C. § 2422(b) was intended “to address those who lure chil-
dren out to actually engage in illegal sexual activity.” 41
    In Avery, the CAAF assessed whether Congress preempted Article 134,
UCMJ, indecent language with a child when it enacted Article 120b, UCMJ
(2012), sexual abuse of a child by committing lewd acts, which can include
communicating indecent language. Although in Avery, CAAF was also inter-
preting a later version of Article 120b, UCMJ, as compared to a Presidential-
ly enumerated Article 134, UCMJ, offense, we find the logic persuasive to
Appellant’s case. And in Avery, the nature of the two offenses being compared
was substantially closer than the two offenses being compared here.
   Appellant can point to no legislative history that suggests Congress in-
tended to occupy the field as it relates to attempted enticement of a child
when it legislated Article 120(j), UCMJ. Therefore, because the first part of
the two-part preemption test is not met, we need not consider whether the
specification alleges a residuum of the elements of Article 120(j), UCMJ.

         b. Enumerated Article 134 offense of indecent language
   Appellant further challenges the specification as impermissible under
paragraph 60.c.(6)(c) of Part IV of the 2008 Manual, citing United States v.



   40   Avery, 2020 CAAF LEXIS 151 at *8.
   41   Wheeler, 77 M.J. at 292 (quoting Schell, 72 M.J. at 343-44).




                                            11
                         United States v. Hoffmann, No. 201400067
                            Reconsidered Opinion of the Court

Guardado. 42 In Guardado, the CAAF held that a novel Article 134 offense
fails to state an offense when the President has already enumerated an Arti-
cle 134 offense in Part IV of the Manual that covers the misconduct. Appel-
lant argues that the Presidentially defined Article 134, UCMJ, 43 offense of
indecent language covers the misconduct. The elements of Article 134, inde-
cent language are: (1) that the accused orally or in writing communicated to
another person certain language; (2) that such language was indecent; and
(3) that, under the circumstances, the conduct of the accused was . . . of a
nature to bring discredit upon the armed forces. 44 A fourth element may
apply: that the person to whom the language was communicated was a child
under the age of 16. 45
    Again, we note that Article 134, indecent language is not an apt compari-
son for the conduct alleged in the Specification of the Additional Charge. That
specification referred not to the language Appellant used, but to the totality
of Appellant’s actions in which he attempted to persuade, induce, and entice
Ryan to sexual activity. Because the specification captures the full nature of
that attempted enticement offense, in line with 18 U.S.C. § 2422(b), we find
that Wheeler controls. This offense was not preempted by Article 134, UCMJ,
indecent language.

   2. Instructional error during findings and sentencing
    In United States v. Schell, 46 the CAAF held that when instructing on an
attempted enticement offense charged under Article 134, UCMJ, the military
judge must incorporate some of the elements that would have been present
had an Article 80, UCMJ, offense been alleged. The court held that the ele-
ments of an Article 134, UCMJ, attempted enticement offense under 18
U.S.C. § 2422(b) include that: (1) the accused specifically intended to commit
the substantive offense; and (2) that the accused “took a substantial step




   42 77 M.J. 90 (C.A.A.F. 2017). As noted above, Guardado interpreted the identical
provision in the 2012 Manual.
   43   MCM, United States, Part IV, ¶ 89, (2008 ed.).
   44   Id. at ¶ 89.b.
   45  Id. This additional element escalates the maximum punishment from a bad-
conduct discharge, forfeiture of all pay and allowances, and six months’ confinement
to a dishonorable discharge, forfeiture of all pay and allowances, and confinement for
two years.
   46   72 M.J. 339 (C.A.A.F. 2013).




                                           12
                       United States v. Hoffmann, No. 201400067
                          Reconsidered Opinion of the Court

toward persuading, inducing, [or] enticing . . . a minor to engage in illegal
sexual activity.” 47
    In this case the military judge merely instructed upon the elements of Ar-
ticle 134, UCMJ: that Appellant committed an act; and that such act was of a
nature to bring discredit upon the armed forces. The parties agree that the
military judge plainly erred by failing to properly instruct the members on
the elements of the offense, though they disagree whether this amounted to
prejudice to Appellant.
    However, since the parties submitted their briefs, the CAAF decided
United States v. Davis, 48 in which the court held Davis affirmatively waived
any error relating to instructions when Davis’ trial defense counsel “affirma-
tively declined to object to the military judge’s instructions and offered no
additional instructions.” 49 The court found affirmative waiver existed because
the trial defense counsel was specifically asked—both before and after in-
structions were read—whether the counsel objected to instructions or desired
additional instructions, and both times, the counsel stated he did not. In this
case, the trial defense counsel was given several opportunities to object to the
instructions or to request additional instructions. Although the trial defense
counsel stated she did not concur with a specific aspect of the reasonable
doubt instruction, the trial defense counsel did not object to the elements
instructions for the Specification of the Additional Charge. Such affirmative
waiver means there is “nothing left for us to correct on appeal.” 50
    Appellant argues that the military judge erred in determining the maxi-
mum punishment for the offense to be 20 years by comparison to 18 U.S.C.
§ 2422(b). However, based on the record, it appears the 20-year figure actual-
ly came from Appellant’s trial defense counsel and was based on the related
offense of attempted sodomy with a child under the UCMJ. 51 In any event,



   47 Id. at 345-46 (citing United States v. Winckelmann, 70 M.J. 403, 407 (C.A.A.F.
2011)).
   48   79 M.J. 329.
   49   Id. at 331.
   50  Id. Pursuant to United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), in order to
conduct our review under Article 66(d)(1), we have discretion to review this issue in
spite of Appellant’s waiver. We decline to do so.
   51 During the first trial, the trial counsel argued the maximum punishment was
confinement for life, the maximum term of confinement permitted under 18 U.S.C.
§ 2422(b), upon which the trial counsel stated the specification was modelled. So as to
avoid a maximum confinement term of life, the civilian defense counsel argued the



                                          13
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

although the Specification of the Additional Charge was not preempted by
Article 120(j), UCMJ, or otherwise impermissible, the specification lacked
several elements of 18 U.S.C. § 2422(b)—beyond the interstate commerce
nexus—which rendered it different in quality from the offense upon which it
was modelled. After Appellant requested this Court reconsider our prior
opinion, our superior court decided Davis, and we find Appellant affirmative-
ly waived any error resulting from the military judge’s computation of the
maximum punishment for this offense and the resulting maximum-
punishment instruction to the members. 52 We find Davis also resolves the
question presented in AOE 8, which itself relates to instructional error that
may have arisen from the parties’ treatment of the Specification of the Addi-
tional Charge.

   3. Failure to state an offense
    Appellant also argues the Specification of the Additional Charge fails to
state an offense, asserting that “the charge does not describe criminal con-
duct because it is not illegal to entice someone between the ages of sixteen
and eighteen to commit a sexual act.”53
    We review de novo whether a specification states an offense. 54 When
raised for the first time on appeal, we review such claims for plain error. 55
Under this standard, Appellant must show “(1) there was error; (2) the error
was plain or obvious; and (3) the error materially prejudiced a substantial
right of the accused.” 56




novel specification was analogous to attempted sodomy with a child under the age of
16 but over the age of 12, carrying a maximum punishment of 20 years. See Original
Record at 674-76. During the rehearing, the parties apparently believed this maxi-
mum punishment was based on 18 U.S.C. § 2422(b). See Record at 660.
   52 Considering United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), we decline to
review this likely error. We note that Appellant was already released from confine-
ment when this Court issued its opinion, and the remaining punishment consists of a
dishonorable discharge, reduction to paygrade E-1, and total forfeitures.
   53   Appellant’s Brief on Specified Issues at 4.
   54 United States v. Gleason, 78 M.J. 473, 475 (C.A.A.F. 2019) (citing United States
v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006)).
   55   Id. (citing United States v. Tunstall, 72 M.J. 191, 196 (C.A.A.F. 2013)).
   56 United States v. Humphries, 71 M.J. 209, 214 (C.A.A.F. 2012) (quoting United
States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)).




                                            14
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

    Under then-existing Article 120, it was an offense to commit sexual acts
or sexual contact upon a child under the age of 16 years. 57 It was an offense to
commit sexual acts or sexual contact with persons over the age of 16 only if
certain additional circumstances were present to meet the elements of rape,
sexual assault, abusive sexual contact, or wrongful sexual contact. 58 Sexual
acts or sexual contact with persons between the ages of 16 and 18 years—
without additional attendant criminal circumstances not present in this
case—were not crimes. Thus, attempting to persuade a person “who had not
attained the age of 18 years” to sexual activity—without additional circum-
stances—was not an act criminalized under the UCMJ. We must therefore
ask whether such an act (as alleged in the specification) is properly punisha-
ble under Article 134, Clause 2 if the Government alleged this act to be of a
nature to bring discredit upon the armed forces.
    The specification only alleged that Ryan was under the age of 18 and did
not allege that Appellant intended to entice him to a criminal sex act. At
trial, it was shown that Ryan was 13 years old, meaning it would be an of-
fense under the UCMJ to have any sexual contact with him. However, as-
sessing the specification on its face and without referencing Ryan’s actual
age, we still find the specification states an offense. This specification was
charged as an Article 134, Clause 2 offense. Could it be an Article 134,
UCMJ, service-discrediting offense for a Service Member to drive around the
local civilian community near a military base, shortly after school had been
dismissed, and repeatedly solicit a minor to get into that Service Member’s
car to perform sex acts? We find that the answer to this question is resound-
ingly yes. 59
   We next consider whether the specification fails to allege an offense be-
cause it lacks words of criminality. In United States v. Vaughan, the CAAF
held, “[a]n Article 134 offense that is not specifically listed in the MCM must
have words of criminality and provide an accused with notice as to the ele-




   57 Article 120(d), 120(f), UCMJ, where “child” is defined under Article 120(t)(9) as
any person under the age of 16 years.
   58   See Article 120(a), 120(c), 120(e), and 120(h).
   59 This offense is of a fundamentally different nature than attempted enticement
under 18 U.S.C. § 2422(b). However, the question whether this offense merited the
same maximum punishment as 18 U.S.C. § 2422(b) was waived, and we do not an-
swer it.




                                             15
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

ments against which he or she must defend.” 60 As such, the hallmarks of a
valid Article 134 Clause 2 offense are words of criminality and notice.
   We first note that “[t]he military is a notice pleading jurisdiction” 61 in
which:
         A charge and specification will be found sufficient if they, “first,
         contain[ ] the elements of the offense charged and fairly in-
         form[ ] a defendant of the charge against which he must de-
         fend, and, second, enable[ ] him to plead an acquittal or convic-
         tion in bar of future prosecutions for the same offense.” 62
For our purposes, “[a] specification is sufficient if it alleges every element . . .
expressly or by necessary implication.” 63 But in this case, there is not a spe-
cific element that has been omitted because this is a novel offense that al-
leged both of the elements under Article 134, UCMJ: an act (attempting to
entice) and the terminal element.
    Here, there is no question that Appellant was on notice of the Govern-
ment’s theory of liability or that he knew it was wrongful to solicit a 13-year-
old boy for sex. Appellant knew through review of the investigative materials
provided that the Government alleged he attempted to entice a 13-year-old
boy we refer to as Ryan. The only question is whether the specification con-
tained sufficient words of criminality.
    In evaluating whether the specification contains words of criminality, we
are not looking for “magic” words. The mere failure to include the word
“wrongfully” does not necessarily render a specification invalid. But inclusion
of the word “wrongfully” can render an otherwise insufficient specification
sufficient. 64 So, too, can an explicit reference to the statute or instruction




   6058 M.J. 29, 35 (C.A.A.F. 2003) (emphasis added) (citing United States v. Davis,
26 M.J. 445, 447 (C.M.A. 1988)).
   61   United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011).
   62 Id. (alterations in original) (quoting Hamling v. United States, 418 U.S. 87, 117
(1974)).
   63   Id. (quoting Rule for Courts-Martial [R.C.M.] 307(c)(3)).
   64 See Crafter, 64 M.J. at 211-12 (discussing United States v. Russell, 47 M.J. 412,
413 (C.A.A.F. 1998), in which the CAAF held the word “wrongfully” implied “guilty
knowledge” and in turn “knowing[ ] possess[ion].”)




                                            16
                        United States v. Hoffmann, No. 201400067
                           Reconsidered Opinion of the Court

alleged to have been violated. 65 The word “wrongfully” was not included; a
statutory reference was not applicable; 66 and the specification failed to identi-
fy Ryan as a child under the age of 16. We must therefore determine whether
the specification nevertheless contains words of criminality and states an
offense.
    The Government argues this specification “alleges every element . . . by
necessary implication” within the meaning of R.C.M. 307(c)(3). 67 It also ar-
gues that “[b]y alleging the Victim by name,” because the victim “had not
attained the age of 18 years,” the specification necessarily implied that Ryan
was under 16 years old. 68 The Government next argues that the presence of a
mens rea element (knowingly attempted to persuade, induce, and entice)
“provides the words of criminality necessary to state an offense.” 69 The Gov-
ernment analogizes from Elonis v. United States 70 and United States v.
Fosler 71 to argue that, because mens rea is an important aspect of criminali-
ty, the allegation of a mens rea in the specification itself constitutes words of
criminality.
   As Appellant did not challenge the specification at trial or during his re-
hearing, he is entitled only to plain error review. Here, we find any error, if
error, is not plain or obvious because at least one other military court of
criminal appeals has held that allegation of a terminal element in an Article
134, UCMJ, offense constitutes words of criminality. The Coast Guard Court



   65  See id. (noting that the specification’s reference to the Joint Ethics Regula-
tion—and its attendant definitions of bribery—sufficiently stated an Article 92 of-
fense for bribery).
   66 Although the Government used 18 U.S.C. § 2422(b) as a guide, it did not allege
two of its elements. Nevertheless, the Government invoked its maximum punish-
ment.
   67Appellee’s Response to Additional Specified Issue of 6 Jan 2020 at 11 (quoting
R.C.M. 307(c)(3)).
   68   Id. at 13-14.
   69   Id. at 16. We note that the mens rea of “knowingly” is subsumed in the offense
of attempt, of which Appellant could not be found guilty unless he had a specific
intention to commit the underlying crime and took a substantial step toward its
completion. Because specific intent is a greater mens rea than knowingly, the pres-
ence of the word knowingly is superfluous. An unknowing attempt is a legal impossi-
bility.
   70   135 S. Ct. 2001 (2015).
   71   70 M.J. 225 (C.A.A.F. 2011).




                                          17
                      United States v. Hoffmann, No. 201400067
                         Reconsidered Opinion of the Court

of Criminal Appeals so held in United States v. Tevelien, 72 explicitly overrul-
ing United States v. Hughey, 73 in which a panel of that court had held the
opposite was true. 74 Whether or not this Court would elect to follow the Coast
Guard court’s rationale in Tevelien, the mere fact that a sister service court
has vacillated on this legal question demonstrates that any error is not clear
or obvious.
    Accordingly, we do not find that Appellant is entitled to relief. We note
that the Government would have avoided these appellate issues—albeit be-
latedly raised—had it elected to draft this specification in any of the several
ways this Court and our superior court have previously affirmed. 75

B. Uncharged Propensity Evidence
   Appellant argues the military judge erred by admitting uncharged mis-
conduct evidence under Military Rule of Evidence [M.R.E.] 414. Specifically,
the military judge permitted the Government to present Alex’s and Pete’s
enticement allegations—conduct of which Appellant was acquitted at his first



    72   75 M.J. 708 (C.G. Ct. Crim. App. 2016).
    73   72 M.J. 809 (C.G. Ct. Crim. App. 2013).
    74 In United States v. Farence, 57 M.J. 674 (C.G. Ct. Crim. App. 2002) a CGCCA
panel had held that the Clause 1 terminal element was sufficient to constitute words
of criminality in a case in which actual prejudice to good order and discipline resulted
when a Service Member shared images depicting pornography and bestiality in the
workplace.
    75 See United States v. Pierce, 70 M.J. 391 (C.A.A.F. 2011) (affirming novel Clause
1 and 2 specification alleging Pierce “wrongfully and knowingly attempt[ed] to per-
suade, induce, entice, or coerce ‘Anastasia,’ someone he thought was a female 13
years of age, . . . to engage in sexual activity in violation of Title 18, United States
Code, Section 2422”); see also Schell, 72 M.J. 339 (reviewing specification alleging
Schell “knowingly attempt[ed] to persuade, induce or entice an individual known to
him by [a] screen name, . . . a person [Schell] believed to be less than 18 years of age,
by means or facility of interstate commerce, to wit: the internet, to engage in sexual
activity which, if undertaken, would constitute a criminal offense under Article 120
of the Uniform Code of Military Justice, in violation of 18 U.S. Code Section 2422(b),”
but reversing Schell’s guilty plea as improvident because the military judge did not
elicit the “substantial step” element of attempt); see also United States v. Hickerson,
71 M.J. 659, 663 (N-M. Ct. Crim. App. 2012) (rejecting challenge to an apparent
Clause 1, Clause 2, and Clause 3 Article 134 offense alleging a violation of 18 U.S.C.
§ 2422(b) because the specification did not expressly allege an underlying state stat-
ute violation that would result from the attempted sex with the purported 13-year-
old child).




                                            18
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

court-martial. Appellant further argues the evidence was not admissible
under M.R.E. 404(b) 76 and that the military judge conducted the M.R.E. 403
balancing test improperly. Appellant focuses his argument on the contention
that, although the Government could prove by a preponderance of the evi-
dence that Alex and Pete were victims of an offense of child molestation, by
some unknown offender, the Government could not prove Appellant commit-
ted those offenses because the identity of the perpetrator was unproven.
    We review such rulings to admit or exclude evidence for an abuse of dis-
cretion. 77 “The abuse of discretion standard is a strict one, calling for more
than a mere difference of opinion. The challenged action must be ‘arbitrary,
fanciful, clearly unreasonable, or clearly erroneous.’ ” 78
    Military Rule of Evidence 414 is an exception to the general rule against
propensity evidence. The rule permits the military judge to admit evidence
that the accused committed “any other offense of child molestation,” and such
evidence “may be considered on any matter to which it is relevant.” 79 Thus,
“inherent in M.R.E. [414] is a general presumption in favor of admission.” 80




   76 Although the Defense moved in limine to preclude admission of the evidence
under M.R.E. 404(b), 413, and 414, the military judge admitted the evidence under
M.R.E. 414. He addressed both Defense motions in the same ruling. AE XLVII. When
instructing the members how they could use the evidence, he also noted the evidence
could be used for some M.R.E. 404(b) purposes, such as identity, motive, common
scheme, or plan. Record at 615.
   77   United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).
   78 United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting United States
v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).
   79   Mil. R. Evid. 414.
   80   United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005). The court in Berry was
specifically dealing with M.R.E. 413, but the court’s analysis applies to both M.R.E.s
413 and 414. See United States v. Tanner, 63 M.J. 445, 448-49 (C.A.A.F. 2006) (not-
ing the similar legislative history with M.R.E. 413, its “companion rule,” and finding
that M.R.E. 414, like M.R.E. 413, establishes a presumption in favor of admissibility
of evidence of prior similar crimes in order to show predisposition to commit the
designated crimes); United States v. Luna, No. 201500423, 2017 CCA LEXIS 314, at
*13-18 (N-M. Ct. Crim. App. May 9, 2017) (unpub. op.) (analyzing propensity evi-
dence admitted under M.R.E. 414 using the same standards applied to M.R.E. 413),
aff'd, 77 M.J. 198 (C.A.A.F. Jan. 10, 2018) (summary disposition).




                                           19
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

   1. Military Rule of Evidence 414 threshold factors
    Before admitting evidence under M.R.E. 414, three threshold factors must
be met: (1) the accused is charged with an offense of child molestation within
the meaning of M.R.E. 414(d); (2) the proffered evidence shows the accused
committed another offense of child molestation within the meaning of M.R.E.
414(d); and (3) the proffered evidence is logically relevant under M.R.E. 401
and 402. 81 To meet the second requirement, the military judge must conclude
that the members “could find by [a] preponderance of the evidence that the
offenses occurred . . . .” 82
    Once the military judge finds the three threshold factors are met, “the
military judge is constitutionally required to also apply a balancing test
under M.R.E. 403” to determine whether the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice. 83 In United
States v. Wright, the CAAF articulated the following balancing test.
         [I]n conducting this balancing test, the military judge should
         consider the following non-exhaustive factors . . . : [1] strength
         of proof of the prior act (i.e., conviction versus gossip); [2] pro-
         bative weight of the evidence; [3] potential for less prejudicial
         evidence; [4] distraction of the factfinder; [5] time needed for
         proof of the prior conduct; [6] temporal proximity; [7] frequency
         of the acts; [8] presence or lack of intervening circumstances;
         and [9] the relationship between the parties. 84
    This analysis of the M.R.E. 403 factors also encompasses the third prong
of the Reynolds M.R.E. 404(b) test.
    If the “balancing test requires exclusion of the evidence, the presumption
of admissibility [that is inherent within M.R.E. 413] is overcome.” 85 “When a
military judge articulates his properly conducted M.R.E. 403 balancing test




   81   United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013).
   82United States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000) (citing Huddleston v.
United States, 485 U.S. 681, 689-90 (1988)).
   83   Solomon, 72 M.J. at 179-80 (citing Berry, 61 M.J. at 95).
   84   Id. at 180 (citing Wright, 53 M.J. at 482) (number bullets added).
   85   Berry, 61 M.J. at 95 (citing Wright, 53 M.J. at 482-83).




                                            20
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

on the record, the decision will not be overturned absent a clear abuse of
discretion.” 86
   Appellant contests the military judge’s treatment of the second and third
threshold factors under M.R.E. 414 and the military judge’s M.R.E. 403 bal-
ancing test applying the Wright factors. We evaluate these arguments in
turn.

         a. Military Rule of Evidence 414 threshold factors two and three.
    Appellant argues the military judge erred when finding the second and
third factors were met because he focused his analysis on whether offenses
occurred rather than whether Appellant committed those offenses. We note
the Defense conceded at trial that the first two factors under M.R.E. 414 were
met. 87 However, since the identity concerns relate to the analyses under
M.R.E.s 401-403, we will discuss them. Appellant argues that “the military
judge’s analysis failed to account for the significant identification issues at
the first trial which resulted in [Appellant’s] acquittal on the charges involv-
ing” Alex and Pete. 88 Appellant cites United States v. Solomon and argues
that, as in Solomon, the military judge “failed to account for . . . weaknesses
in the evidence.” 89 We disagree.
   The military judge issued a written ruling incorporating the defense
counsel and trial counsels’ extensive recitation of the facts. He recited the
proper law. Although he styled his language similar to that used in Wright,
which required him to conclude that members “could find by [a] preponder-
ance of the evidence that the offenses occurred,” 90 the full context of his rul-
ing clearly demonstrates that he evaluated the evidence in light of whether
members could find Appellant committed those offenses.




   86 Solomon, 72 M.J. at 180 (citing United States v. Manns, 54 M.J. 164, 166
(C.A.A.F. 2000)).
   87  Appellate Exhibit (App. Ex.) XLVII at 3 n.4; see also Record at 159-60. The mil-
itary judge went on to note that M.R.E. 414(d)(2)(A) and (G) define “child molesta-
tion” as “any conduct prohibited by Article 120 and committed with a child, or an
attempt to engage in [said conduct] M.R.E. 414.” App. Ex. XLVII at 3 n.5 (internal
quotation marks omitted) (alteration in original).
   88   Appellant’s Brief of 18 Sep 2017 at 16.
   89   Id. at 19.
   90   Wright, 53 M.J. at 483 (citing Huddleston, 485 U.S. at 689-90).




                                            21
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

    To summarize the evidence available to the military judge on this motion,
Pete did not identify Appellant during a photo lineup, specifically denying
that Appellant’s photo depicted the suspect who solicited him. But Pete rec-
ognized Appellant’s car, pointed it out to his mother, and his mother was able
to note the license plate number. Alex picked Appellant’s photograph out of
the lineup, although he stated he remembered the suspect had spiked blond
hair. Alex later recognized the suspect’s vehicle, which—after his mother
spoke to Pete’s mother—was found to be Appellant’s vehicle. And Appellant
sped off—arguably because he realized he was being followed after driving
slowly through the residential neighborhood where Alex and Pete were solic-
ited—driving as fast as 55 miles-per-hour through a 25 mile-per-hour resi-
dential zone. Both Alex’s and Pete’s descriptions of the suspect’s vehicle were
similar to the vehicle Ryan separately described. The three boys reported
similar attempts to entice them, occurring close in time and in the same
geographic region. And Ryan also identified Appellant during a photo lineup,
which was conducted using a double-blind procedure in which the lineup
administrator had no knowledge of the case. When Alex’s and Pete’s allega-
tions are analyzed independently, each witness’s account was similar to
Ryan’s and relayed similar descriptions of Appellant or his vehicle.
    Aside from thoroughly analyzing this second factor, the military judge al-
so identified several relevant bases for admission of the evidence. Based on
these facts and the similarity in behavior between the offenses, we cannot
find that the military judge’s ruling relating to these factors was “arbitrary,
fanciful, clearly unreasonable, or clearly erroneous.” 91
    We reject Appellant’s comparison of this case to Solomon. In Solomon, the
CAAF found that the military judge made “unexplained and unreconciled
leaps from the evidence presented to his findings of fact” when he found
that: 92 (1) Solomon was leaving the base, whereas the undisputed evidence
showed he was entering the base at a crucial time; (2) when he misstated the
time of the attacks, which were irrefutably established to have taken place
between 0230-0300, as having taken place “at night or in the early morning
hours”; and (3) when he failed to discuss the fact that Solomon was known to
have been in police custody from 0230-0300 when the attacks occurred. We
find no similar errors here.




   91   White, 69 M.J. at 239 (citation omitted).
   92   Solomon, 72 M.J. at 181.




                                            22
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

         b. Military Rule of Evidence 403 balancing (Wright factors)
   Appellant argues the military judge improperly conducted the M.R.E. 403
balancing test. Specifically, Appellant argues the military judge “completely
overlooked the time and impact” of the uncharged misconduct evidence. We
disagree. The military judge issued a written ruling that discussed all of the
Wright factors in detail.

              (1) Strength of proof of the prior act (i.e., conviction versus gossip)
    In his written findings addressing the first Wright factor, the military
judge correctly noted that Alex’s and Pete’s allegations were more than mere
gossip. They were documented in sworn statements and described under oath
during a pretrial deposition and during Appellant’s first trial. The military
judge correctly noted that admission of this evidence was not barred by the
prior acquittals. 93 The fact that the members at Appellant’s prior court-
martial were not convinced beyond a reasonable doubt that Appellant com-
mitted the acts against Pete and Alex does not mean that the military judge
and the members at his subsequent court-martial could not be convinced by a
preponderance of the evidence that he did so.

              (2) Probative weight of the evidence
    In addressing the probative weight of the evidence, the military judge
stated that the evidence was probative “not only to the accused’s propensity
to engage in this conduct, but also as to motive, intent, common scheme or
plan, or absence of mistake.” 94 He also noted the evidence could show what
Appellant meant by asking Ryan for “a quickie” and how Appellant came to
the attention of law enforcement. 95 Further, he concluded that the probative
weight was heightened by the similarities to the charged offense. All three
alleging victims were young boys approached by a man driving a silver or
white SUV while they were walking home alone from school. The driver
solicited sexual acts using hand gestures and verbal comments while slowly
driving by them.




   93   App. Ex. XLVII at 4.
   94   Id.
   95   Id.




                                           23
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

           (3) Potential for less prejudicial evidence; distraction of the fact-
finder; time needed for proof of the prior conduct
    The military judge found there was no less prejudicial evidence. He also
noted he intended to “limit . . . distraction to the fact-finder through limiting
instructions and tailored direct and cross-examination.” 96 Our review of the
record indicates the military judge followed through on this commitment at
trial, ensuring a minimum amount of time was focused on the propensity
evidence and providing appropriate limiting instructions during both the
testimony and in his final instructions. The trial counsel followed the military
judge’s limitations and properly focused the Government’s case and closing
argument on the charged offenses involving Ryan.

          (4) Temporal proximity; frequency of the acts; presence or lack of
intervening circumstances; relationship between the parties
    Concerning these Wright factors, the military judge’s written findings
noted that Alex and Pete made allegations days apart and approximately five
months after the charged misconduct. He noted there were no intervening
circumstances that would diminish the probative value of the evidence, and
that the parties were not related, and concluded that these factors weighed in
favor of admission.

              (5) Summary
   Considering the entirety of the military judge’s ruling, we find that the
military judge properly conducted the M.R.E. 403 balancing test. We find
that his ruling was within the “range of choices reasonably arising from the
applicable facts and the law.” 97 We therefore find no abuse of discretion in the
admission of this evidence.

C. Military Judge’s Instructions
   Appellant next claims the military judge erred by failing to instruct the
members that they were required to find the uncharged propensity miscon-
duct occurred by a preponderance of the evidence. We disagree.

   1. The instruction
   After the close of the Government’s case and prior to a weekend recess,
the Defense requested that the military judge provide a limiting instruction



   96   Id. at 5.
   97   United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015).




                                            24
                       United States v. Hoffmann, No. 201400067
                          Reconsidered Opinion of the Court

relating to the M.R.E. 414 evidence. The Defense-offered instruction included
the following admonition, which was contained in the Military Judge’s
Benchbook in effect at the time of trial: “This evidence may have no bearing
on your deliberations unless you first determine by a preponderance of the
evidence, that is more likely than not, these uncharged offenses occurred.” 98
   The parties discussed the proposed instruction with the military judge in
two R.C.M. 802 conferences, which were summarized on the record during
two separate Article 39(a), UCMJ, sessions. During the first Article 39(a)
session, the military judge stated that based on United States v. Williams, 99
he would not instruct the members that they had to find Appellant commit-
ted the uncharged offenses by a preponderance of the evidence before they
could consider those uncharged offenses under M.R.E. 414. 100 During the
second Article 39(a) session, just before providing the limiting instruction to
the members before the weekend recess, the military judge summarized the
parties’ second R.C.M. 802 conference on the proposed instruction. The fol-
lowing exchange took place.
             MJ:       During the recess, I provided the parties with a
                       proposed limiting instruction regarding M.R.E. 414
                       evidence. Defense counsel had proposed a change.
                       The Government objects to that change, and I’m go-
                       ing to go with . . . what I originally drafted, which
                       the Defense concurs with.
                       Defense counsel, do you agree with the instruction
                       that the court provided you during the 802?
             DC:       With the one strike, yes, sir.
             MJ:       No objections to any other aspect of it?
             DC:       No, sir. 101
   The record does not demonstrate whether the “one strike” referred to the
Defense-requested sentence relating to the preponderance of the evidence


   98   Contained in App. Ex. CXI.
   99  75 M.J. 621 (A. Ct. Crim. App. 2016). The case was reversed and remanded in
light of United States v. Hills, 75 M.J. 350 (C.A.A.F 2016), due to charged propensity
misconduct which is not the issue in the present case. United States v. Williams, 75
M.J. 430 (C.A.A.F. 2016).
   100   Record at 490.
   101   Id. at 518.




                                            25
                      United States v. Hoffmann, No. 201400067
                         Reconsidered Opinion of the Court

standard. The military judge provided a limiting instruction, then the court
recessed for the weekend. After both sides rested, the military judge asked
the parties their positions on the proposed findings instructions and whether
they had any objections not already stated. The trial defense counsel noted an
objection to the reasonable doubt instruction but then said the Defense had
no further objections.
    The military judge instructed the members that they could consider the
uncharged sexual misconduct pursuant to M.R.E. 414, as evidence of Appel-
lant’s propensity to commit the charged sexual misconduct, and pursuant to
M.R.E. 404(b), as evidence of Appellant’s identity, motive or common scheme
or plan:
              You heard evidence that the accused may have committed
          other offenses upon [Alex] and [Pete]. The accused is not
          charged with these other offenses and was previously acquitted
          of these offenses at a prior proceeding. You may, however, con-
          sider the evidence of those offenses involving [Alex] or [Pete]
          for its bearing on any matter to which it is relevant in relation
          to the charged offenses. You may consider the evidence related
          to [Alex] and [Pete] for its tendency, if any, to show the ac-
          cused’s propensity or predisposition to engage in similar of-
          fenses, as well as its tendency, if any, to establish among other
          possible things, identity, motive, or common scheme or plan.
          You may not, however, convict the accused solely because you
          believe he committed these other offenses, or solely because
          you believe the accused has a propensity or predisposition to
          engage in similar acts. In other words, you cannot use this evi-
          dence to overcome a failure of proof in the government’s case, if
          you perceive any to exist. 102

    2. The law
    “Whether a panel was properly instructed is a question of law reviewed de
novo.” 103 Whether an appellant has waived an issue is a question of law we
also review de novo. 104



    102Id. at 615 (emphasis added). This instruction is substantially similar to the in-
struction the military judge read before the weekend recess.
    103   United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008).
    104   United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017).




                                            26
                      United States v. Hoffmann, No. 201400067
                         Reconsidered Opinion of the Court

    “Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the ‘intentional relinquishment or abandonment of a known
right.’ ” 105 When an appellant has “intentionally waive[d] a known right at
trial, it is extinguished and may not be raised on appeal.” 106 Forfeited objec-
tions to evidence are reviewed for plain error, which exists where: (1) an error
was committed; (2) the error was plain, clear, or obvious; and (3) the error
resulted in material prejudice to substantial rights. 107
    In his brief, Appellant does not argue that the Defense preserved an ob-
jection to the instruction. Appellant does not explicitly state whether he
believes the trial defense counsel’s statements amounted to waiver. 108 How-
ever, he cites United States v. Davis, a 2017 CAAF case applying the plain
error standard, and urges us to apply the plain error standard. 109 Assuming
without deciding that Appellant forfeited, rather than waived, his right to
object to the military judge’s instructions, we find no error.

   3. Plain error analysis
    Appellant contends that the military judge’s instructions should have con-
tained the following language: “This evidence may have no bearing on your
deliberations unless you first determine by a preponderance of the evidence,
that is more likely than not, these uncharged offenses occurred.” 110
     The military judge discussed the Defense’s request to give this instruc-
tion. However, he believed procedurally the initial requirement had been
fulfilled once he made the admissibility analysis under M.R.E. 414 and ex-
plained to the members that Appellant had been acquitted of those offens-
es. 111 Although he partially relied on Williams, he also compared the request-



   105 United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting United
States v. Olano, 507 U.S. 725 (1993).
   106   Id.; see also Davis, 79 M.J. 329.
   107  United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007) (citing United
States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998)).
   108  See Appellant’s Motion for Leave to File Supplemental Assignment of Error
and Supplemental Assignment of Error of 16 February 2018 at 4. This Motion was
filed before the CAAF decided United States v. Davis, 79 M.J. 329.
   109   See id.; Davis, 76 M.J. at 229.
   110 Appellant’s Supplemental Brief of 16 Feb 2018 at 3 (emphasis added) (citing
Dept. of the Army Pamphlet 27-9 at ¶ 7-13-1 (20 Mar 2015)).
   111   Record at 490, 522, 615.




                                             27
                   United States v. Hoffmann, No. 201400067
                      Reconsidered Opinion of the Court

ed instruction to more traditional uncharged misconduct instructions under
M.R.E. 404(b). He noted the members are generally permitted to give their
own assignment of weight to uncharged M.R.E. 404(b) evidence once the
judge has properly determined admissibility.
    Appellant offers no authority to show that the military judge erred in his
refusal to instruct the members using the preponderance standard. 112 The
military judge twice instructed the members that they could determine the
tendency of the evidence, if any, to show that the Appellant engaged in the
charged misconduct. And he emphasized that the members could not convict
Appellant solely based on propensity.
    Accordingly, we find that the military judge did not commit error, and
certainly not plain or obvious error, when instructing the members how to
use the uncharged misconduct evidence, which is in line with the use of such
evidence in Article III federal courts. 113 The military judge repeatedly in-
structed the members: (1) that Appellant was acquitted of the misconduct
alleged by Alex and Pete; (2) that the members must presume Appellant
innocent of the charged offenses; (3) that Appellant could not be convicted
based on propensity alone; and (4) that the burden remained with the Gov-
ernment to prove guilt beyond a reasonable doubt. We find the military
judge’s instructions were proper.

D. Improper Referral
    In his third AOE, Appellant argues the military judge erred by denying
Appellant’s motion to withdraw charges from the court-martial due to the
involvement of Col W as staff judge advocate [SJA] to the convening authori-
ty. Prior to Appellant’s first trial in 2012, Col W served as the Regional Trial
Counsel (RTC), in which role he exercised a supervisory role over the prose-
cution of all cases at Camp Lejeune. In this role, he detailed a complex trial-
qualified trial counsel to assist the assigned trial counsel with this case.


   112 United States v. Schroder, 65 M.J. 49, 54, 56 (C.A.A.F. 2007) (finding the mili-
tary judge is not “required to disaggregate the [414] instruction” and that a M.R.E.
414 instruction must state “the introduction of such propensity evidence does not
relieve the government of its burden of proving every element of every offense
charged. Moreover, the factfinder may not convict on the basis of propensity evidence
alone”). We note both of these requirements were contained in the military judge’s
instructions here.
   113 Huddleston, 485 U.S. at 690 (finding that the trial court “simply examines all
the evidence in the case and decides whether the jury could reasonably find the
conditional fact . . . by a preponderance of the evidence”).




                                          28
                     United States v. Hoffmann, No. 201400067
                        Reconsidered Opinion of the Court

Colonel W completed his eight-month RTC tour shortly thereafter, months
before Appellant’s first trial began. 114
    Several years later, after the CAAF reversed Appellant’s conviction and
authorized a rehearing on the charges involving Ryan, Col W was serving as
the convening authority’s SJA. In this role, Col W prepared the Article 34,
UCMJ, pretrial advice letter recommending referral of Appellant’s charges to
general court-martial for a rehearing. Consistent with Col W’s recommenda-
tion, the convening authority referred the charges. Appellant moved to dis-
miss the charges, arguing that Col W was disqualified because, by previously
detailing a trial counsel to the case, he had himself served as trial counsel for
the first trial within the meaning of Article 6(c), UCMJ, which prohibits
anyone who has acted as trial counsel from serving as an SJA in the same
case.
    The military judge found as fact that “[n]either Col [W] nor any other
member of the prosecution recall the extent that [he] personally participated
in the prosecution of [Appellant’s] case (if at all).” 115 The military judge ruled
“in the exercise of an abundance of caution,” that Col W was disqualified from
advising the convening authority in this case. 116 However, he did not grant
the Defense-requested remedy that charges be withdrawn. Instead, he re-
quired another uninvolved, qualified SJA to provide new Article 34 advice,
after which the convening authority was to indicate in writing whether he
still desired to “adhere to his previous decision to refer the charges.” 117
    The deputy SJA provided Article 34 advice to the convening authority,
while charges remained referred. The new letter explained the military
judge’s ruling, the reason for Col W’s disqualification, and advised the con-
vening authority, “[Y]ou may affirm your desire to adhere to your previous”
referral decision. 118 After receiving this advice, the convening authority
signed a memorandum indicating that he reviewed the new Article 34,




   114  App. Ex. XXXIII at 2 (“[H]e ceased being the RTC on 14 March 2013” and the
first court-martial “was conducted in August 2013”).
   115   App. Ex. XLII at 1.
   116   Id. at 2.
   117   Id. at 3.
   118Pretrial Advice in the Case of United States v. Corporal Matthew P. Hoffmann,
USMC, dated 27 Sep 2016, signed by the Deputy Staff Judge Advocate (emphasis
added).




                                        29
                      United States v. Hoffmann, No. 201400067
                         Reconsidered Opinion of the Court

UCMJ, advice and that his prior decision to refer the remaining charges to
general court-martial remained “unchanged.” 119
   Appellant argues the military judge’s “ruling fell short” because the rem-
edy did not take into account the fact that Col W, Appellant speculates, must
have been involved in the decisions the convening authority made after the
CAAF remanded his case. 120 Specifically, he alleges it is “very likely” that
Col W advised the convening authority on the threshold issues of whether to
keep Appellant in confinement pending a rehearing and whether to hold a
rehearing at all. 121 As such, he argues “the charges should have been with-
drawn and a new [SJA] appointed.” 122 Notably, Appellant does not state that
he suffered any prejudice from this alleged error, nor does he state the relief
he now desires from this Court. We find the military judge did not err and
that Appellant suffered no prejudice. Accordingly, we grant no relief.
    Whether an individual is disqualified from acting as an SJA is a legal
question reviewed de novo. 123 Assuming, without deciding, that the military
judge properly disqualified Col W, we do not find Appellant was prejudiced by
the military judge’s refusal to order charges withdrawn. Appellant is entitled
to relief only if he can show “material prejudice” to his “substantial rights.” 124
In this case, the deputy SJA independently re-advised the convening authori-
ty who, fully aware he could reach a different decision, reaffirmed his deci-
sion to conduct a rehearing at general court-martial. Even if Col W did, as
Appellant claims, advise the convening authority to maintain Appellant in
pretrial confinement, Appellant’s counsel requested and received de novo
review of Appellant’s pretrial confinement status by the military judge. Thus
every decision that was or may have been subject to Col W’s advice was either
revalidated or independently reviewed. Finding no “colorable showing of
prejudice,” we reject Appellant’s claim. 125




   119   Commanding General, II Marine Expeditionary Force, memorandum of 29 Sep
2016.
   120   Appellant’s Brief of 18 Sep 2017 at 31.
   121   Id. at 32.
   122   Id. at 33.
   123   United States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010).
   124   Id. at 259 (citing Art. 59(a), UCMJ).
   125   Id.




                                            30
                      United States v. Hoffmann, No. 201400067
                         Reconsidered Opinion of the Court

E. Military Judge Recusal
    Appellant’s fourth AOE arises from the fact that the military judge who
presided over Appellant’s 2016 rehearing had previously served as the officer-
in-charge [OIC] of the Legal Services Support Section [LSSS] that prosecuted
Appellant’s case. The military judge detached from the LSSS shortly before
charges were preferred in May 2012. During the investigation stage, howev-
er, the military judge supervised the prosecution office and exercised admin-
istrative control over the defense offices for Camp Lejeune. 126
   As LSSS OIC, the military judge was in the fitness report rating chain for
the supervisory prosecutor. The OIC delegated authority to the supervisory
prosecutor to detail trial counsel to cases, and the supervisory prosecutor
“generally oversaw the prosecutorial function,” meaning the OIC did nei-
ther. 127 However, the supervisory prosecutor would “periodically brief [the
OIC] on important cases.” 128 On a day-to-day basis, the OIC “predominantly”
dealt with “administration and personnel with an emphasis on personnel
because of . . . ongoing deployments.” 129
    At trial, the Defense argued that during his time as LSSS OIC the mili-
tary judge must have been aware of the facts of Appellant’s case because
NCIS reports contained a distribution block that included the LSSS OIC as a
listed recipient. However, the military judge informed the parties he had no
recollection of ever having received a report of investigation relating to Appel-
lant. He had no recollection of receiving a brief on Appellant’s case and stated
that he would not speculate as to what happened “four years ago” because it
“would be pure conjecture.” 130 After permitting thorough voir dire by the
defense counsel, the military judge stated on the record that he had “thought
hard” and determined he had “absolutely no recollection of participating in
any aspect of the investigation, pre-preferral process, or preferral of charges”
against Appellant, even after having presided over two motions sessions, read
“several hundred documents,” and read both the Hoffmann I and Hoffmann




   126 This office was later reorganized to remove the defense function from falling
under the same chain of command as the prosecutors.
   127   Record at 99.
   128   Id.
   129   Id. at 96.
   130   Id. at 99.




                                        31
                         United States v. Hoffmann, No. 201400067
                            Reconsidered Opinion of the Court

II opinions. 131 Accordingly he found he could remain impartial and he denied
the motion to recuse himself, also issuing a written ruling. 132
   Appellant argues recusal would have “avoided any appearance of conflict,”
an error which he argues “requires reversal.” 133 Appellant also juxtaposes the
military judge’s refusal to recuse himself against the military judge’s ruling
disqualifying Col W as the SJA. According to Appellant, had the military
judge applied the same standard that he applied to Col W, the military judge
would have had to recuse himself. Appellant does not allege any of the mili-
tary judge’s findings of fact were clearly erroneous, nor does he allege the
military judge applied the wrong legal principles.
    We review a military judge’s decision not to recuse himself for an abuse of
discretion—meaning that the military judge’s decision was “arbitrary, fanci-
ful, clearly unreasonable or clearly erroneous . . . .” 134 “An accused has a
constitutional right to an impartial judge.” 135 “There is a strong presumption
that a judge is impartial.” 136 The party seeking recusal “has the burden of
establishing a reasonable factual basis for disqualification,” which requires
more than “mere surmise or conjecture.” 137
    Disqualification is required when “that military judge’s impartiality
might reasonably be questioned.” 138 The test under R.C.M. 902(a) is an objec-
tive one, asking whether there exists “[a]ny conduct that would lead a rea-
sonable man knowing all the circumstances to the conclusion that the judge’s
impartiality might reasonably be questioned.” 139 Because this objective test
assumes the reasonable person knows all of the pertinent facts, the “judge’s




   131   Id. at 15-16.
   132   App. Ex. XLIV.
   133   Appellant’s Brief at 39.
   134   United States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015) (citation omitted).
   135 United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (quoting United States
v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999)).
   136   United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001).
   137  Wilson v. Ouellette, 34 M.J. 798, 799 (N.M.C.M.R. 1991) (citing Untied States
v. Allen, 31 M.J. 572, 601, 605 (N.M.C.M.R. 1990)).
   138   R.C.M. 902(a).
   139 Butcher, 56 M.J. at 91 (internal quotation marks omitted) (quoting United
States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982)).




                                            32
                       United States v. Hoffmann, No. 201400067
                          Reconsidered Opinion of the Court

statements concerning his intentions and the matters upon which he will rely
are not irrelevant to the inquiry.” 140
    Appellant does not argue that the military judge exhibited actual bias; he
merely challenges the military judge based on the appearance of bias. “The
appearance standard is designed to enhance public confidence in the integrity
of the judicial system” and to “reassure the parties” themselves that the
proceedings are fair. 141
   We find that the military judge did not abuse his discretion by denying
the recusal motion. Appellant did not meet his burden to overcome the pre-
sumption of the military judge’s impartiality. Appellant presented no evi-
dence that the military judge ever had actual knowledge of the facts of Appel-
lant’s case in 2012 as it was being investigated. Nor did he present evidence
the military judge had acted as trial counsel.
    Appellant presented no evidence to suggest the military judge ever knew
of Appellant’s case, or if he had, that he still remembered any related facts
four years later. The military judge stated on the record that he had no recol-
lection of the case whatsoever and that he would have no difficulty remaining
impartial.
    In United States v. Sullivan, the CAAF reviewed the decision of the Coast
Guard’s sole general-court-martial-qualified military judge not to recuse
himself in a case in which he had “a personal or professional relationship
with nearly everyone involved in the court-martial.” 142 Additionally, the judge
reported directly to the Coast Guard Judge Advocate General [JAG], and
when the defense indicated it might request the JAG as a witness, the mili-
tary judge took the unusual step of informing the Deputy JAG of this devel-
opment as a “courtesy.” 143 The CAAF held that the military judge did not
abuse his discretion by denying the joint defense-government motion to recu-
se himself for two reasons. First, the court noted “the military judge specifi-
cally stated on the record that none of his associations . . . would influence
any of his decisions.” 144 Second, the appellant “ha[d] not identified any con-


   140   Wright, 52 M.J. at 141.
   141Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 860 (1988)).
   142 United States v. Sullivan, 74 M.J. 448, 456 (C.A.A.F. 2015) (Erdmann, C.J.,
concurring in part, dissenting in part).
   143   Id. at 452 (majority opinion).
   144   Id. at 454.




                                          33
                      United States v. Hoffmann, No. 201400067
                         Reconsidered Opinion of the Court

duct by the military judge which tend[ed] to demonstrate that he inappropri-
ately influenced the panel,” and he “ha[d] not pointed to any rulings that
raise[d] appearance concerns.” 145
    We reach the same result here. Any appearance of bias that resulted from
the military judge’s former role as LSSS OIC was of far less concern than was
at play in Sullivan. Additionally, we find the facts in Appellant’s case are a
far cry from those at issue in United States v. Hayes, in which this Court held
the military judge erred by failing to sua sponte recuse himself from the trial
of a homosexual Marine because of the judge’s anti-homosexual senti-
ments. 146 These sentiments were not discovered until the military judge
participated in a post-trial debrief with counsel and told them, “Marines
should not be required to live in the barracks with people like Seaman
Hayes,” and also said that “homosexuality has no place in our Armed Forc-
es.” 147
    We note the unique structure of the military justice system. As LSSS
OIC, the military judge was not in the role of authorizing prosecution of
cases—unlike in the case the Defense cited at trial, Williams v. Pennsylva-
nia. 148 The convening authority made the decision to refer this case for trial
by general court-martial. The military justice officer and his trial counsel
provided prosecution advice, and the SJA independently advised the conven-
ing authority. As LSSS OIC, the military judge was not involved in the de-
tails of prosecuting specific cases, he also provided administrative supervision
over the defense counsel, and at trial, he did not recall a single detail about
Appellant’s case.
   We find that no reasonable observer, fully informed of the pertinent facts,
could reasonably question the military judge’s impartiality. We therefore hold
that the military judge did not abuse his discretion in not recusing himself.




   145   Id.
   146 No. 200600910, 2010 CCA LEXIS 364 at *8 (N-M. Ct. Crim. App. Oct. 28,
2010) (unpub. op.).
   147   Id. at *9.
   148 See Record at 98, referring to Williams v. Pennsylvania, 136 S. Ct. 1899 (2016)
(holding an appellate judge who, in his former role as a district attorney approved his
prosecutors’ request to seek the death penalty in a case, erred by refusing to recuse
himself from appellate consideration of that same case decades later when reviewing
a court that granted Williams post-conviction relief because the original prosecutors
committed Brady v. Maryland, 373 U.S. 83 (1963), discovery violations).




                                          34
                       United States v. Hoffmann, No. 201400067
                          Reconsidered Opinion of the Court

F. Sentence Disparity
    Appellant argues that his sentence is highly disparate from a closely re-
lated case. To prevail on this claim, Appellant must prove: (1) “that any cited
cases are closely related to his” case; and (2) that the sentences are “highly
disparate.” 149 Only if Appellant succeeds on both prongs will the burden shift
to the Government to “show that there is a rational basis for the disparity.” 150
   Examples of closely-related cases include “coactors involved in a common
crime, servicemembers involved in a common or parallel scheme,” or those
cases which have a “direct nexus” between Appellant and the persons to
whom he seeks to have his sentence compared. 151 When assessing disparity
among sentences, we look only to adjudged sentences. 152
    Here, Appellant requests we compare his sentence to that awarded in
United States v. Rodriquez. 153 In Rodriquez, an Army specialist “followed
minor girls walking on post in his car, and then approached them and talked
to them.” 154 He received a sentence of a bad-conduct discharge, confinement
for two years, and reduction to pay grade E-1 for his offenses, which included
one specification of sexual abuse of a child by committing a lewd act. 155
    We find that Appellant has failed to carry his preliminary burden to show
this cited case is closely related to his own. The two offenders were not co-
actors, and there is no direct nexus between them. Rodriguez is in a different
service, and he committed his offense in a different state at a different time.
Even if the two cases could be argued to be closely related, there is a rational
basis for the disparity. Rodriquez negotiated a pretrial agreement, entered


    149   United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999).
    150   Id.
    151   Id.
    152   See United States v. Roach, 69 M.J. 17, 21 (C.A.A.F. 2010).
    153   No. 20130577, 2015 CCA LEXIS 551 (A. Ct. Crim. App. Dec. 1, 2015) (unpub.
op.).
    154   Id. at *3.
    155The appellant in Rodriquez was convicted of “one specification of failing to
obey a lawful order, one specification of sexual abuse of a child by committing a lewd
act, and six specifications of wrongfully annoying and molesting a minor in violation
of California Penal Code § 647.6(a)(1), in violation of Articles 92, 120b, and 134,”
UCMJ, 10 U.S.C. §§ 892, 920b, and 934 (2012). Id. at *1-2. The Army Court of Crimi-
nal Appeals set aside the specifications charged under the California Penal Code as
preempted by Article 120(b), UCMJ, and reassessed the sentence. Id. at *7-8.




                                             35
                       United States v. Hoffmann, No. 201400067
                          Reconsidered Opinion of the Court

pleas of guilty, and was sentenced by a military judge. We reject any compar-
ison between Appellant’s case and that of Rodriguez.

G. Unreasonable Multiplication of Charges

    1. The legal standard
    In United States v. Campbell, 156 the CAAF clarified the doctrines of mul-
tiplicity and unreasonable multiplication of charges. The CAAF reaffirmed
the test outlined in United States v. Quiroz 157 for evaluating an unreasonable
multiplication of charges. The Quiroz factors are:
           (1) Did the accused object at trial that there was an unreasona-
           ble multiplication of charges and/or specifications?
           (2) Is each charge and specification aimed at distinctly separate
           criminal acts?
           (3) Does the number of charges and specifications misrepresent
           or exaggerate the appellant’s criminality?
           (4) Does the number of charges and specifications unreasonably
           increase the appellant’s punitive exposure?
           (5) Is there any evidence of prosecutorial overreaching or abuse
           in the drafting of the charges? 158

    2. Application of Quiroz factors
   In Appellant’s first trial, he challenged several specifications on the basis
of an unreasonable multiplication of charges. The military judge granted
some of the requested relief. That prior ruling did not result in any relief
during Appellant’s rehearing based on the two specifications of which Appel-
lant was convicted in his rehearing. 159 During his rehearing, his trial defense
counsel re-raised the issue and asked for merger of the two specifications of
which he had been convicted for sentencing. 160 However, he explicitly stated




    156   71 M.J. 19 (C.A.A.F. 2012).
    157   55 M.J. 334 (C.A.A.F. 2001).
    158 Campbell, 71 M.J. at 24 (citing Quiroz, 55 M.J. at 338) (listing Quiroz
factor 1 in footnote 10).
    159   See Record at 660.
    160   See id. at 661.




                                          36
                       United States v. Hoffmann, No. 201400067
                          Reconsidered Opinion of the Court

that “we aren’t challenging it for purposes of findings.” 161 Accordingly, we
find that Appellant waived—or “intentional[ly] relinquish[ed] or aban-
don[ed]” 162 his known right—to contest the issue of unreasonable multiplica-
tion of charges for the purpose of findings, but that he preserved an argument
as it relates to the maximum punishment available during sentencing.
   We review a military judge’s ruling on a motion denying relief for unrea-
sonable multiplication of charges for an abuse of discretion. 163 We find the
military judge did not abuse his discretion. He found the two specifications
were “aimed at distinctly separate acts,” “one being primarily focused on the
language the accused uttered, the other on his actions to induce or entice”
Ryan. 164 We agree. As noted above, the Specification of Charge II alleged
indecent liberties by Appellant’s use of indecent language in Ryan’s presence
when he asked if Ryan wanted a “quickie.” By contrast, the Specification of
the Additional Charge related to the totality of Appellant’s actions in at-
tempting to entice Ryan to engage in sexual acts with him. The military
judge then briefly assessed the remaining Quiroz factors, reciting each factor
and merely stating that the factors were not met. We find this conclusion did
not constitute an abuse of discretion.
    The two different specifications for Appellant’s course of conduct do not
exaggerate his criminality. As noted above, we question the propriety of
applying a 20-year maximum punishment to the novel Article 134, Clause 2
offense as drafted, although the 20-year figure appears to have originated
with the Defense. 165 However, we decline to grant relief—if this were error—
because Appellant affirmatively waived this instructional error. In light of
the maximum punishment of 15 years’ confinement and a dishonorable dis-
charge to which Appellant was already exposed as a result of his conviction of
Charge II, we do not find that this second offense substantially increased
Appellant’s punitive exposure. Although the Specification of the Additional


   161   Id. at 662.
   162   United States v. Olano, 507 U.S. 725, 733 (1993) (citation omitted).
   163   See Campbell, 71 M.J. at 22.
   164   Record at 664.
   165  During the rehearing, there was confusion on this point, and the parties be-
lieved this punishment was based on 18 U.S.C. § 2422(b). During the first trial, the
trial counsel argued the maximum sentence was life, but in order to avoid this maxi-
mum confinement term, the civilian defense counsel argued the novel specification
was analogous to attempted sodomy with a child under the age of 16 but over the age
of 12, carrying a maximum punishment of 20 years. Original Record at 674-76.




                                            37
                    United States v. Hoffmann, No. 201400067
                       Reconsidered Opinion of the Court

Charge was inartfully charged, we find no prosecutorial overreach in the
drafting of the charges. Our analysis comports with that of the military
judge. We do not find that he abused his discretion.

                               III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and the sentence are correct
in law and fact and that there is no error materially prejudicial to Appellant’s
substantial rights. 166 Accordingly, the findings and the sentence as approved
by the convening authority are AFFIRMED.
   Chief Judge CRISFIELD and Judge LAWRENCE concur.


                                 FOR THE COURT:




                                 RODGER A. DREW, JR.
                                 Clerk of Court




   166   Arts. 59, 66, UCMJ.




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