United States v. Crawford ( 2015 )


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  •           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
    UNITED STATES
    v.
    Master Sergeant JAMEY L. CRAWFORD
    United States Air Force
    ACM 38408
    9 April 2015
    Sentence adjudged 20 March 2013 by GCM convened at Joint Base San
    Antonio-Lackland, Texas. Military Judge: Matthew D. Van Dalen (sitting
    alone).
    Approved Sentence: Bad-conduct discharge, confinement for 7 months,
    hard labor without confinement for 2 months, and reduction to E-4.
    Appellate Counsel for the Appellant: Captain Michael A. Schrama.
    Appellate Counsel for the United States:               Major Roberto Ramirez and
    Gerald R. Bruce, Esquire.
    Before
    MITCHELL, TELLER, SARAGOSA
    Appellate Military Judges
    OPINION OF THE COURT
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
    under AFCCA Rule of Practice and Procedure 18.4.
    MITCHELL, Senior Judge:
    The appellant was convicted, pursuant to mixed pleas, by a military judge sitting
    alone, of failing to obey a lawful general regulation, making a false official statement,
    committing consensual sodomy, and committing adultery, in violation of Articles 92,
    107, 125, and 134, UCMJ; 
    10 U.S.C. §§ 892
    , 907, 925, 934. The court sentenced him to
    a bad-conduct discharge, confinement for 7 months, hard labor without confinement for
    2 months, and reduction to E-4. The convening authority approved the sentence as
    adjudged and waived $1,500 of the pay per month from the automatic forfeitures to the
    accused’s wife and dependent children.
    The appellant alleges that the time taken to prepare his record of trial was an
    unreasonable delay that deprived him of his due process rights, that his sentence is
    inappropriately severe, that apparent unlawful command influence (UCI) so permeated
    the Air Force that he was unable to receive a fair trial and clemency consideration, and
    that criminalizing consensual sodomy violated his constitutional rights.             In a
    supplemental assignment of errors, the appellant argues his plea of guilty to Charge I and
    its four specifications was improvident because the regulatory provision in question was
    not punitive. We disagree with all of the alleged errors. However, as a derivative
    argument on the constitutional challenge to the consensual sodomy charge, we separately
    conclude that there is an unreasonable multiplication of charges and set aside Charge III
    and its specification. We affirm the remaining charges and specifications. We reassess
    the sentence and determine that the approved sentence is appropriate.
    Background
    The appellant was a married military training instructor (MTI) stationed at Joint
    Base San Antonio-Lackland, Texas. In the spring of 2011, A1C AD attended basic
    military training (BMT). The appellant was not her MTI; however, he was responsible
    for all flights of trainees when they were in parades and ceremonies. Toward the end of
    her BMT, the appellant and A1C AD exchanged personal text messages. The day after
    she graduated from BMT and before she left for technical training, A1C AD and the
    appellant engaged in consensual sexual intercourse.
    In the fall of 2011, A1C SG attended BMT. The appellant was not her flight
    leader but was in a supervisory role. After she graduated from BMT, A1C SG attended
    technical training in the local area. The appellant saw her on base and gave her his phone
    number. They spent time with each other on four or five occasions and twice engaged in
    consensual sexual activity.
    Charges Brought Under AETCI 36-2909
    The appellant pled guilty to four specifications of violating a lawful general order,
    Air Education and Training Command Instruction (AETCI) 36-2909, Professional and
    Unprofessional Relationships (2 March 2007) (certified current 26 September 2011).
    The order prohibited MTIs from developing or conducting a personal, intimate, or sexual
    relationship with a trainee. The appellant now challenges his pleas as improvident
    alleging that AETCI 36-2909 was not a lawful general order because it was not properly
    published pursuant to Air Force instructions. This court recently determined that AETCI
    36-2909 is sufficient to be a lawful general order. See United States v. Leblanc,
    2                                   ACM 38408
    __ M.J. __, ACM 38396 (A.F. Ct. Crim. App. 26 March 2015). We follow this binding
    precedent and reject the appellant’s argument.
    Unlawful Command Influence
    As he did at trial, the appellant argues that UCI so permeated his trial that he was
    denied a fair trial and clemency consideration. The military judge considered the
    appellant’s argument and evidence and denied the defense motion. The military judge
    based his ruling on the following findings of fact:
    Lieutenant Colonel JC, the 331st Training Squadron Commander, preferred the
    charges and specifications on 24 October 2012 and Brigadier General TC, the 502d Air
    Base Wing Commander, referred them on 13 January 2013. There was media attention
    directed toward allegations of misconduct by military training instructors at Joint Base
    San Antonio-Lackland prior to the appellant’s trial. However, “this coverage had
    subsided somewhat in recent months” and that only a few of the articles referenced the
    appellant. The previous 737th Training Group Commander, Col GP, made statements in
    April 2012 that there was a “cancer” in basic military training created by some MTIs who
    were “sullying the name” and he needed “to get them out.” Col GP was removed from
    his position in August 2012. Sometime during the investigation, the appellant was
    relieved of his MTI duties, his photograph was removed from the array of current MTIs,
    and he was no longer authorized to wear the distinctive MTI hat. The Air Force Times
    also reported on statements made by the Air Force Chief of Staff (CSAF) in January 2013
    regarding MTI misconduct.
    We review allegations of UCI de novo.              United States v. Wallace,
    
    39 M.J. 284
    , 286 (C.M.A. 1994). Article 37(a), UCMJ, 
    10 U.S.C. § 837
    (a), states in part:
    “No person subject to this chapter may attempt to coerce or, by any unauthorized means,
    influence the action of a court-martial or any other military tribunal or any member
    thereof, in reaching the findings or sentence in any case . . . .” The appellant has the
    initial burden of raising UCI. United States v. Stombaugh, 
    40 M.J. 208
    , 213
    (C.M.A. 1994). Once the issue of command influence is properly placed at issue, “no
    reviewing court may properly affirm findings and sentence unless [the court] is persuaded
    beyond a reasonable doubt that the findings and sentence have not been affected by the
    command influence.” United States v. Thomas, 
    22 M.J. 388
    , 394 (C.M.A. 1986). At the
    appellate level, we evaluate UCI in the context of a completed trial using the following
    factors: “[T]he defense must (1) show facts which, if true, constitute [UCI]; (2) show
    that the proceedings were unfair; and (3) show that [UCI] was the cause of the
    unfairness.” United States v. Biagase, 
    50 M.J. 143
    , 150 (C.A.A.F. 1999) (citing
    Stombaugh, 40 M.J. at 213); see also United States v. Simpson, 
    58 M.J. 368
    , 374
    (C.A.A.F. 2003); United States v. Reynolds, 
    40 M.J. 198
    , 202 (C.M.A. 1994).
    3                                  ACM 38408
    We reach the same conclusion as the military trial judge and deny the appellant
    any relief on this issue. We find the appellant has not met his burden of establishing facts
    that would constitute UCI. We do not see how the earlier statements of a prior
    commander who was no longer in that position can result in the UCI of a superior officer
    who made the decision to refer the charges. The CSAF’s statements were made after the
    decision to prefer and refer the charges and we do not see any nexus between those
    statements and the commander’s earlier decisions. When the military judge denied the
    motion, he also specifically held open reconsideration based on the member’s responses
    during voir dire to questions about pretrial publicity. 1 To the extent the appellant is
    arguing that pretrial publicity adversely affected his court-martial, we also find he has
    failed to meet his burden in that regard. See United States v. Simpson, 
    58 M.J. 368
    , 372
    (C.A.A.F. 2003) (stating that the defense may raise the issue of unfair pretrial publicity
    by demonstrating either presumed or actual prejudice). Furthermore, the appellant chose
    to proceed without members. There is no evidence that any of the pretrial publicity or
    statements by the CSAF had any influence on the military judge. The military judge as
    the trier of fact is presumed to know the law and follow it. United States v. Phillips,
    
    70 M.J. 161
    , 168 (C.A.A.F. 2011). We find no evidence in the record to rebut this
    presumption.
    Constitutionality of Article 125 for Consensual Sodomy
    The appellant challenges the constitutionality of his conviction for a violation of
    Article 125, UCMJ, Sodomy. Constitutional challenges to Article 125 are addressed on
    an as applied, case-by-case basis using a tripartite framework within the military context.
    United States v. Stirewalt, 
    60 M.J. 297
    , 304 (C.A.A.F. 2004).
    First, was the conduct that the accused was found guilty of
    committing of a nature to bring it within the liberty interest
    identified by the Supreme Court? Second, did the conduct
    encompass any behavior or factors identified by the Supreme
    Court as outside the analysis in Lawrence? Third, are there
    additional factors relevant solely in the military environment
    that affect the nature and reach of the Lawrence liberty
    interest?
    United States v. Marcum, 
    60 M.J. 198
    , 206-07 (C.A.A.F. 2004) (citing to Lawrence v.
    Texas, 
    539 U.S. 558
     (2003)) (citation omitted).
    We conclude that the Article 125, UCMJ, as applied to the appellant is
    constitutional based on the factors unique to the military environment evident in this case.
    1
    Within two weeks of referral, the military judge issued an order to all the prospective members prohibiting them
    from reading or listening to stories about the appellant or cases with similar allegations. The order also required the
    members to report any knowledge of articles.
    4                                             ACM 38408
    A1C SG attended BMT from September to November 2011. The appellant was not her
    MTI but she knew that he was an MTI. She interacted twice with him during BMT and
    both times the appellant acted professionally. Approximately two to three weeks after
    she graduated BMT, A1C SG and a friend saw the appellant and after some conversation
    she asked for his phone number which he provided. Sometime later, the appellant picked
    up A1C SG and her friend from the bowling alley and drove them to a hotel. While her
    friend stayed at the front of the room with another MTI, A1C SG and the appellant
    retreated to the bedroom. When asked what happened next, A1C SG explained, “We
    were talking and we had sex.” This included the appellant using his tongue and his penis
    to penetrate her vagina. A1C SG agreed that the sexual activity was consensual and the
    appellant did not force her.
    The evidence is that the appellant and A1C SG were competent adults who
    engaged in private consensual sexual activity. The nature of the activity brings it within
    the sphere of the liberty interests identified by the Supreme Court and does not include
    any behavior or factors outside that Lawrence analysis. In short, this case is strikingly
    similar to Lawrence in that it involves “two adults who, with full and mutual consent
    from each other, engaged in sexual practices” that included sodomy. Lawrence, 
    539 U.S. at 578
    . However, “servicemembers . . . do not share the same autonomy as civilians.”
    Marcum, 
    60 M.J. at 206
    . “We consider [the appellant’s] zone of autonomy and liberty
    interest in light of the established [service] regulations and the clear military interests of
    discipline and order that they reflect.” United States v. Stirewalt, 
    60 M.J. 297
    , 304
    (C.A.A.F. 2004). Here the appellant’s actions were in violation of AETCI 36-2909.
    There is no evidence in the record that the appellant had an authority or responsibility
    over A1C SG other than that inherent in the difference between their ranks. The AETCI
    prohibits the appellant as an MTI from engaging in certain relationships with trainees
    who have completed training but have not yet reported to their permanent duty station. It
    specifically prohibits a “personal, intimate or sexual relationship” between MTIs and
    trainees. Based solely on this third Marcum factor, we conclude the appellant’s
    consensual sexual relationship with A1C SG is outside the bounds of constitutionally
    protected activity because it was explicitly prohibited by the AETC instruction.
    Unreasonable Multiplication of Charges
    When reviewing issues of unreasonable multiplication, we apply a five-part test
    that considers: (1) whether an objection was made at trial, (2) whether the specifications
    are aimed at distinct criminal acts, (3) whether the number of charges and specifications
    misrepresent or exaggerate the charged criminality, (4) whether the number of charges
    and specifications unreasonably increase the punitive exposure, and (5) whether the
    evidence shows prosecutorial overreaching or abuse in drafting the charges.
    United States v. Pauling, 
    60 M.J. 91
    , 95 (C.A.A.F. 2004) (citing United States v. Quiroz,
    
    55 M.J. 334
    , 338 (C.A.A.F. 2001)). The factors are to be balanced, with no single factor
    5                                   ACM 38408
    dictating the result. 
    Id.
     We review a military judge’s determination that charges were
    not unreasonably multiplied for an abuse of discretion. 
    Id.
    Based on his interactions with A1C SG, the appellant was convicted of four
    offenses2: Specification 3 of Charge I for violating the lawful general regulation AETCI
    36-2909 by establishing or carrying on a personal social relationship with her,
    Specification 4 of Charge I for violating the lawful general regulation AETCI 36-2909 by
    wrongfully conducting a sexual relationship with her, Charge III and its specification for
    committing sodomy with her, and Specification 2 of Charge IV for committing adultery
    (wrongful sexual intercourse with a woman who was not his wife). The appellant
    objected at trial and the military judge denied the motion to dismiss based on multiplicity
    and we concur. However, the military judge found evidence of overreaching and
    unreasonableness. For the offenses involving A1C SG, the military judge merged the
    specifications of Charge I for violating the lawful general order and the adultery
    specification. The military judge denied any relief regarding the sodomy charge.
    We conclude that the military judge erred by not granting any relief regarding the
    sodomy charge. As addressed above, the sodomy charge only survives the constitutional
    challenge because it violates unique military concerns in prohibiting personal and sexual
    relationships between MTIs and those individuals who have completed BMT but remain
    in a training status; in short he was convicted of engaging in sexual activity (sodomy)
    with her that was only unlawful because it violated the AETCI. The appellant was also
    convicted for violating the AETCI for having a sexual relationship with A1C SG. We
    find this to be an unreasonable multiplication of charges and set aside Charge III and its
    specification.3
    In United States v. Campbell, 
    71 M.J. 19
     (C.A.A.F. 2012), our superior court held
    that in the context of unreasonable multiplication of charges, a military judge has broad
    discretion to dismiss offenses, merge offenses, or merge offenses only for purposes of
    sentencing.
    The military judge denied the motion to dismiss the adultery specifications. The
    military judge merged the adultery specification with the specifications regarding
    violations of the AETCI for the appellant’s interactions with A1C SG. The military
    judge also merged the adultery specification with the specifications alleging a violation of
    the AETCI for the appellant’s interactions with A1C AD. After the military judge denied
    the motion to dismiss and merged the specifications for sentencing purposes, the
    2
    After arraignment and the plea inquiry, the trial counsel withdrew Specification 5 of Charge I alleging another
    violation of the lawful general regulation for conducting a sexual relationship with A1C SG after 3 January 2012.
    3
    Our set aside of Charge III and its specification is a conditional set aside dependent upon affirming Specification 4
    of Charge I or a lesser included offense. See United States v. Stanley, 
    60 M.J. 622
    , 630 (A.F. Ct. Crim. App. 2004)
    (conditionally dismissing one of two charges stemming from the same underlying conduct and reassessing the
    sentence accordingly).
    6                                             ACM 38408
    appellant pled guilty to these specifications. We find the following portion of the plea
    inquiry regarding the adultery with A1C AD to be informative:
    MJ: As, before I’m going to ask some follow-up questions.
    This appears to be the same conduct which underlies
    Specification 2 of Charge I [(violation of AETCI 36-2909 by
    having vaginal intercourse with A1C AD)] that you discussed
    earlier. Is that accurate?
    ACC: Yes, sir.
    MJ: So all those facts that you gave me previously also
    apply to this specification?
    ACC: Yes, sir
    We do not find an abuse of discretion in the military judge’s merging, instead of
    dismissing, the adultery specifications.            Cf. United States v. Elespuru,
    
    73 M.J. 326
    , 329–30 (C.A.A.F. 2014) (recognizing that dismissal of one specification
    charged in the alternative of another is appropriate where the factfinder returns findings
    of guilt on both specifications, even where the issue has been waived at trial). The trial
    counsel specifically stated that these offenses were not charged in the alternative but
    instead were aimed at specifically different criminal aspects of the appellant’s same
    behavior. However, the evidence at trial focused on the adultery being criminal because
    it violated the AETCI which limited MTI and trainee relationships. See United States v.
    Gutierrez, 
    74 M.J. 61
     (C.A.A.F. 2015) (holding that the appellant’s adultery was
    wrongful because it violated his commander’s order and therefore fell outside of
    constitutional liberty interests). Not only do we conclude that the military judge did not
    abuse his broad discretion in fashioning an appropriate remedy, but we note that charging
    both offenses for the exact same behavior is direct evidence of overreach under Quiroz.
    The military judge could have dismissed or conditionally dismissed the adultery
    specifications; however, his decision to merge them for sentencing purposes was not an
    abuse of his broad discretion.
    Post-Trial Processing
    a. Completion of the Record of Trial and Convening Authority’s Action
    We review de novo whether an appellant has been denied the due process right to
    speedy post-trial review and whether any constitutional error is harmless beyond a
    reasonable doubt. United States v. Allison, 
    63 M.J. 365
    , 370 (C.A.A.F. 2006). The
    appellant’s court-martial concluded on 20 March 2013 and the convening authority
    issued the action 120 days later on 18 July 2013. The appellant concedes that this does
    7                                  ACM 38408
    not trigger the presumption of unreasonable established in United States v. Moreno,
    
    63 M.J. 129
    , 142 (C.A.A.F. 2006). However, the appellant argues the unique facts of his
    case render the post-trial processing prejudicially unreasonable. The appellant notified
    the legal office that he intended to apply to the return to duty program (RTDP), he needed
    a completed record of trial as a prerequisite and that all applications to the program were
    due by 31 May 2013 as the program was being eliminated. A lieutenant colonel, three
    master sergeants, and the military judge all wrote letters supporting the appellant’s RTDP
    admission. On 18 May 2013, the chief of military justice explained that there were 18
    courts-martial and administrative discharge boards in post-trial processing, that the base
    had requested additional assistance, and that they were prioritizing the caseload based on
    Moreno requirements as well as expiration of term of service dates. We conduct a
    case-specific analysis to determine if any given delay is facially unreasonable and if the
    delay is not, then the full due process analysis is not triggered. Toohey v. United States,
    
    60 M.J. 100
    , 103 (C.A.A.F. 2004). We conclude that the length of time to complete the
    record of trial was reasonable. Additionally, to the extent that “malicious delay” may
    require additional analysis, we conclude that any delay was not malicious.
    See United States v. Mackie, 
    72 M.J. 135
    , 136 (C.A.A.F. 2013) (holding that malicious
    delay as factor is a question for another day). Therefore, the full analysis is not required
    and the appellant is not entitled to any relief.
    b. Appellate Review
    This case was docketed with us on 12 August 2013 and the decision was issued
    20 months later. When appellate review is not completed and a decision is not rendered
    within 18 months after docketing with the court, there is a presumption of unreasonable
    delay. Moreno, 63 M.J. at 142. Because the time from docketing to the initial decision
    violates the Moreno standard, this presumptively unreasonable delay triggers an analysis
    of the four factors elucidated in Barker v. Wingo, 
    407 U.S. 514
    , 530 (1972), adopted in
    Moreno, 63 M.J. at 135. Those factors are “(1) the length of the delay; (2) the reasons for
    the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice
    to the appellant.” United States v. Mizgala, 
    61 M.J. 122
    , 129 (C.A.A.F. 2005) (citing
    Barker, 
    407 U.S. at 530
    ).
    The delay is presumptively unreasonable, so it weighs in favor of the appellant and
    we turn to the other factors. Moreno, 63 M.J. at 136. The appellant has not specifically
    made a demand for speedy appellate review. However, because his initial assignment of
    error raised a complaint about the “unreasonable” delay in post-trial processing, we find
    this factor weighs, minimally, in favor of the appellant.
    As for the reasons for the delay, the appellant submitted an original assignment of
    errors on 12 May 2014. Over government opposition, the appellant submitted an
    additional assignment of error on 17 October 2014. This additional assignment of error
    alleged that the appellant’s pleas were not provident as the underlying instruction was not
    8                                   ACM 38408
    punitive. We have addressed the merits of this argument. See supra pp. 2–3. The same
    challenge to AETCI 36-2909 was also raised in Leblanc, ACM 38396. This court
    decided to consider that case en banc and issued a written decision. This opinion was
    issued shortly afterwards. Regarding the time for our consideration of the merits of
    appellant’s case, our superior court applies “a more flexible review of this period,
    recognizing that it involves the exercise of the Court of Criminal Appeals’ judicial
    decision-making authority.” Moreno, 63 M.J. at 137. In Moreno, our superior court held
    that “a period of slightly over 6 months is not an unreasonable time for review by the
    Court of Criminal Appeals.” Id. at 137–38. It would be inconsistent to allow the
    appellant to file a supplemental pleading raising new errors unrelated to post-trial
    processing delay and then to hold the additional time to consider these new matters
    against the government. We conclude this factor weighs against the appellant.
    When assessing prejudice for a due process post-trial delay analysis, we examine
    “three similar interests for prompt appeals: (1) prevention of oppressive incarceration
    pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the
    outcome of their appeals; and (3) limitation of the possibility that a convicted person’s
    grounds for appeal, and his or her defenses in case of reversal and retrial, might be
    impaired.” Moreno, 63 M.J. at 138–39. The second factor requires “an appellant to show
    particularized anxiety or concern that is distinguishable from the normal anxiety
    experienced by prisoners awaiting an appellate decision.” Id. at 140. Regardless of any
    minimal release date, the appellant had served his complete sentence to confinement prior
    to filing his first assignment of error. The appellant has also not identified any
    particularized anxiety.
    When there is no showing of prejudice under the fourth Barker factor, “we will
    find a due process violation only when, in balancing the other three factors, the delay is
    so egregious that tolerating it would adversely affect the public’s perception of the
    fairness and integrity of the military justice system.” Toohey, 63 M.J. at 362. Having
    considered the totality of the circumstances and the entire record, when we balance all the
    factors, we find the post-trial delay in this case to not be so egregious as to adversely
    affect the public’s perception of the fairness and integrity of the military justice system.
    We are convinced the error is harmless beyond a reasonable doubt.
    Tardif Relief
    Additionally, Article 66(c), UCMJ, 
    10 U.S.C. § 866
    (c), empowers appellate courts
    to grant sentence relief for excessive post-trial delay without the showing of actual
    prejudice required by Article 59(a), UCMJ, 
    10 U.S.C. § 859
    (a). United States v. Tardif,
    
    57 M.J. 219
    , 224 (C.A.A.F. 2002); see also United States v. Harvey, 
    64 M.J. 13
    , 24
    (C.A.A.F. 2006).         In United States v. Brown, 
    62 M.J. 602
    , 606–07
    (N.M. Ct. Crim. App. 2005), our Navy-Marine Corps Court colleagues identified a
    “non-exhaustive” list of factors to consider in evaluating whether Article 66(c), UCMJ,
    9                                   ACM 38408
    relief should be granted for post-trial delay. Among the non-prejudicial factors are the
    length and reasons for the delay, the length and complexity of the record, the offenses
    involved, and the evidence of bad faith or gross negligence in the post-trial process.
    
    Id. at 607
    . Many of these factors are addressed above. We conclude that sentence relief
    under Article 66, UCMJ, is not warranted
    Sentence Reassessment
    This Court has “broad discretion” when reassessing sentences. United States v.
    Winckelmann, 
    73 M.J. 11
    , 12 (C.A.A.F. 2013). Our superior court has repeatedly held
    that if we “can determine to [our] satisfaction that, absent any error, the sentence
    adjudged would have been of at least a certain severity, then a sentence of that severity or
    less will be free of the prejudicial effects of error.” United States v. Sales,
    
    22 M.J. 305
    , 308 (C.M.A. 1986). This analysis is based on a totality of the circumstances
    with the following as illustrative factors: dramatic changes in the penalty landscape and
    exposure, the forum, whether the remaining offenses capture the gravamen of the
    criminal conduct, whether significant or aggravating circumstances remain admissible
    and relevant, and whether the remaining offenses are the type that we as appellate judges
    have experience and familiarity with to reliably determine what sentence would have
    been imposed at trial. Winckelmann, 73 M.J. at 15–16.
    The remaining offenses capture the gravamen of the criminal conduct. The
    appellant, as an MTI, was prohibited from having personal and sexual relationships with
    A1C AD and A1C SG as they were still considered trainees even though they had
    completed BMT. Our grant of relief to the appellant is based precisely on the concept
    that the remaining specifications fully encompass the criminal conduct expressed in the
    charge and specification we dismissed. All the significant and aggravating circumstances
    remain admissible and relevant. Because the military judge had merged most of the
    charges and specifications, we find that there is no dramatic change in the penalty
    landscape. The forum was military judge alone and we are “more likely to be certain of
    what a military judge would have done.” Winckelmann, 73 M.J. at 16. We reassess to
    the same sentence the military judge originally adjudged. We are confident that
    correction of the errors addressed above would not have reduced the adjudged sentence.
    10                                  ACM 38408
    Conclusion
    We, conditionally, set aside Charge III and its specification. We affirm the
    remaining findings. The findings, as conditionally modified, and the sentence are correct
    in law and fact, and no error materially prejudicial to the substantial rights of the
    appellant occurred. Articles 59(a) and 66(c), UCMJ.
    Accordingly, the approved findings, as modified, and the sentence are
    AFFIRMED.
    FOR THE COURT
    LEAH M. CALAHAN
    Deputy Clerk of the Court
    11                               ACM 38408