United States v. McCall ( 2020 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39548
________________________
UNITED STATES
Appellee
v.
Charles M. MCCALL
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 26 March 2020
________________________
Military Judge: Jefferson B. Brown.
Approved sentence: Dishonorable discharge, confinement for 15 months,
and reduction to E-1. Sentence adjudged 18 April 2018 by GCM con-
vened at Joint Base San Antonio-Lackland, Texas.
For Appellant: Captain M. Dedra Campbell, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mi-
chael T. Bunnell, USAF; Major Mary Ellen Payne, USAF; Justin A. Mil-
ler (civilian intern). 1
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Judge POSCH and Judge KEY joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
1Mr. Miller was a legal intern with the Air Force Legal Operations Agency and was at
all times supervised by attorneys admitted to practice before this court.
United States v. McCall, No. ACM 39548
J. JOHNSON, Chief Judge:
A general court-martial composed of a military judge alone convicted Ap-
pellant, contrary to his pleas, of one specification of attempted sexual abuse of
a child in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 880. 2 The military judge sentenced Appellant to a dishonorable dis-
charge, confinement for 15 months, and reduction to the grade of E-1. The con-
vening authority approved the adjudged sentence, but pursuant to Article
58b(b), 10 U.S.C. § 858b(b), waived $258.00 per month of mandatory forfeitures
of pay for the benefit of Appellant’s dependent child.
Appellant raises seven issues on appeal: (1) whether the military judge
abused his discretion by failing to limit the scope of evidence admitted pursu-
ant to Mil. R. Evid. 414 and by admitting irrelevant evidence pursuant to Mil.
R. Evid. 404(b); (2) whether trial counsel made improper arguments; (3)
whether civilian trial defense counsel was ineffective with respect to his sen-
tencing argument, the defense sentencing evidence, and failure to object to cer-
tain prosecution exhibits and arguments; (4) whether the addendum to the
staff judge advocate’s recommendation (SJAR) failed to address a legal error
the Defense raised to the convening authority; (5) whether Appellant is enti-
tled to relief for post-trial delay; (6) whether the military judge abused his dis-
cretion by denying the Defense’s request for access to devices used by law en-
forcement to investigate the charged offense; and (7) whether trial defense
counsel were ineffective in failing to timely request and compel certain discov-
ery and in failing to speak to sentencing witnesses before trial. 3 With respect
to issues (4), (6), and (7), we have carefully considered Appellant’s contentions
and find they do not require further discussion or warrant relief. See United
States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). With respect to the remaining
issues, we do not find error that materially prejudiced Appellant’s substantial
rights, and we affirm the findings and sentence.
2 All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States
(2016 ed.).
3Appellant raises Issues (6) and (7) pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1992).
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United States v. McCall, No. ACM 39548
I. BACKGROUND
Appellant joined the Air Force in December 2015 when he was 25 years old.
In late March 2016, Appellant was living on Joint Base San Antonio (JBSA)-
Lackland, Texas, where he had been undergoing training.
On 28 March 2016, Appellant responded to a post on “Whisper,” an Internet
application that permits users to post photos and messages and to send re-
sponses anonymously. The post Appellant responded to featured a photo of a
14-year-old girl with the caption, “Anyone on lackland base? Hmu” [sic]. In an
exchange of messages over several days, Appellant identified himself as a 25-
year-old Airman temporarily assigned to JBSA-Lackland for training. The
anonymous poster identified themselves as “Helen,” the 14-year-old daughter
of an active duty Air Force member stationed at JBSA-Lackland. 4 In reality,
“Helen” was a fictitious persona created by Special Agent (SA) JH, an agent of
the Air Force Office of Special Investigations (AFOSI).
From 28 March 2016 until 5 April 2016, Appellant and “Helen” exchanged
a series of messages, first on Whisper and later by cell phone text message. In
the course of their correspondence, Appellant provided several photographs of
himself, and “Helen” provided two additional photographs of herself, none of
them featuring nudity or sexually explicit conduct. 5 However, Appellant did
make a number of sexually explicit comments to “Helen” on such topics as mas-
turbation, having an erection, oral sex, desiring to meet to engage in sexual
activity, and fantasizing about digitally penetrating “Helen’s” vagina in a
movie theater. “Helen” did not initiate any of the sexual comments.
SA JH was able to identify Appellant based on Appellant’s reported age,
his presence as a trainee on JBSA-Lackland, and photographs of servicemem-
bers in the Defense Enrollment Eligibility Reporting System database. The
message exchange ended when on 6 April 2016 the AFOSI brought Appellant
to their office for an interview, on the pretense that “Helen’s” father had dis-
covered the messages and contacted their office. Appellant agreed to speak to
the agents after they advised him of his rights. Appellant made a number of
incriminating admissions during the videorecorded interview, including that
he had in fact written the messages to “Helen.”
Ultimately, Appellant was tried and convicted for a single specification of
attempted sexual abuse of a minor by “intentionally communicating indecent
4“Helen” stated her age on three separate occasions over the course of her correspond-
ence with Appellant.
5The photographs of “Helen” were pictures of a female AFOSI agent taken when she
was 13 and 14 years old.
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United States v. McCall, No. ACM 39548
language by sending sexually explicit language to ‘Helen’ and describing po-
tential sexual encounters . . . ,” in violation of Article 80, UCMJ.
II. DISCUSSION
A. Mil. R. Evid. 414 and Mil. R. Evid. 404(b)
1. Additional Background
At the conclusion of the AFOSI interview, Appellant consented to have the
AFOSI agents review his cell phone. The agents sent Appellant’s phone to the
Cyber Forensics Laboratory (CFL) at the Defense Cyber Crime Center for fur-
ther analysis. The CFL produced an extraction report that reproduced not only
Appellant’s Whisper and text communications with “Helen,” but also numer-
ous other exchanges Appellant engaged in on Whisper. Among these exchanges
were several with individuals who purported to be under the age of 16 years.
Other than Appellant himself, the AFOSI did not ascertain the identity of any
individual involved in these additional communications.
Before trial, the Government identified 11 of these additional communica-
tions on Whisper—each a series of messages between Appellant and another
individual occurring between 28 March 2016 and 2 April 2016—that it in-
tended to introduce at trial. Two of the communications, with individuals iden-
tified as “queen [H]” and “k,” involved sexual comments or references by Ap-
pellant; the remaining nine did not have explicit sexual content. The Govern-
ment contended that these communications were admissible under Mil. R.
Evid. 4146 as evidence of crimes of child molestation similar to the charged
offense, and also were relevant and admissible under Mil. R. Evid. 404(b) to
show Appellant’s absence of mistake, intent, plan, and motive, as well as to
rebut a possible defense of entrapment. The Defense moved in limine to ex-
clude such evidence. The military judge conducted a hearing on the Defense’s
motion at which he received evidence and argument from counsel.
In a written ruling, the military judge granted the defense motion in limine
in part and denied it in part. The military judge found Appellant’s communi-
cations with “queen [H]” and “k” were admissible under Mil. R. Evid. 414. How-
ever, he found the nine communications that did not include sexual references
were not admissible under Mil. R. Evid. 414, because court members could not
find by a preponderance of evidence that these messages were instances of
“child molestation.” The military judge further found these nine non-explicit
6The Government initially provided notice it intended to offer this evidence under Mil.
R. Evid. 413 rather than Mil. R. Evid. 414, but corrected its position at the motion
hearing. The military judge found the Government’s notice under Mil. R. Evid. 414 to
be timely.
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United States v. McCall, No. ACM 39548
communications were nevertheless relevant under Mil. R. Evid. 404(b) to
demonstrate “intent, absence of mistake or accident, modus operandi, and to
rebut—if raised—the defense of entrapment.” However, the military judge fur-
ther found the volume of these other messages presented some danger of unfair
prejudice; therefore, he held the Government could “choose two sample conver-
sations in addition to the [Mil. R. Evid.] 414 evidenc[e], and may generally
summarize the remaining seven conversations.”
At trial, the Government introduced Appellant’s communications with
“queen [H]” and “k,” as well as two other communications (with “BleachBud-
die14” and “[J]”), in accordance with the military judge’s ruling.
2. Law
a. Standard of Review
“The standard of review for a military judge’s decision to admit evidence is
abuse of discretion.” United States v. Fetrow, 76 M.J. 181, 185 (C.A.A.F. 2017)
(citing United States v. Yammine, 69 M.J. 70, 73 (C.A.A.F. 2010)). “A military
judge abuses his discretion when: (1) the findings of fact upon which he predi-
cates his ruling are not supported by the evidence of record; (2) if incorrect legal
principles were used; or (3) if his application of the correct legal principles to
the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010) (citation omitted). “The question of whether the admitted tes-
timony constitutes evidence that the accused committed another offense of
child molestation under M.R.E. 414 is one of law, reviewed de novo.” Fetrow,
76 M.J. at 185 (citing Yammine, 69 M.J. at 73).
b. Mil. R. Evid. 404(b)
Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is generally not admissible as evidence of the person’s character in
order to show the person acted in conformity with that character on a particu-
lar occasion. However, such evidence may be admissible for another purpose,
including, inter alia, proving intent, knowledge, or absence of mistake. Mil. R.
Evid. 404(b)(2). The list of potential purposes in Mil. R. Evid. 404(b)(2) “is il-
lustrative, not exhaustive.” United States v. Ferguson, 28 M.J. 104, 108 (C.M.A.
1989). We apply a three-part test to review the admissibility of evidence under
Mil. R. Evid. 404(b):
1. Does the evidence reasonably support a finding by the court
members that [the] appellant committed prior crimes, wrongs or
acts?
2. What “fact . . . of consequence” is made “more” or “less proba-
ble” by the existence of this evidence?
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United States v. McCall, No. ACM 39548
3. Is the “probative value . . . substantially outweighed by the
danger of unfair prejudice”?
United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 2010) (alterations in origi-
nal) (quoting United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)).
c. Mil. R. Evid. 414
Mil. R. Evid. 414 provides an exception to Mil. R. Evid. 404(b)’s general
prohibition on propensity evidence in cases in which the accused is charged
with a qualifying “act of child molestation.” Mil. R. Evid. 414(a). Mil. R. Evid.
414(d) defines “child molestation” to include, inter alia, any conduct prohibited
by Article 120b, UCMJ, or any attempt to engage in such conduct. If evidence
is admitted under Mil. R. Evid. 414, it “may be considered on any matter to
which it is relevant,” including propensity. Mil. R. Evid. 414(a); United States
v. James, 63 M.J. 217, 220 (C.A.A.F. 2006).
Admission of evidence under Mil. R. Evid. 414 requires a two-step process.
In the first step,
[T]he military judge must make three threshold findings: (1)
whether the accused is charged with an act of child molestation
as defined by [Mil. R. Evid.] 414(a); (2) whether the proffered
evidence is evidence of his commission of another offense of child
molestation as defined by the rule; and (3) whether the evidence
is relevant under [Mil. R. Evid.] 401 and [Mil. R. Evid.] 402.
United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010) (citing United States
v. Bare, 65 M.J. 35, 36 (C.A.A.F. 2007)).
Second, if the three threshold factors are met, the military judge must then
apply a balancing test under Mil. R. Evid. 403 to determine whether the pro-
bative value of the evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the members, undue delay, wast-
ing time, or needlessly presenting cumulative evidence. Id.; see United States
v. Wright, 53 M.J. 476, 482–83 (C.A.A.F. 2000). Although not exhaustive or
exclusive, our superior court has identified a list of factors to consider under
this balancing test: “Strength of proof of prior act—conviction versus gossip;
probative weight of evidence; potential for less prejudicial evidence; distraction
of factfinder; . . . time needed for proof of prior conduct[;] . . . temporal proxim-
ity; frequency of the acts; presence or lack of intervening circumstances; and
relationship between the parties.” Wright, 53 M.J. at 482 (citations omitted);
see United States v. Dewrell, 55 M.J. 131, 138 (C.A.A.F. 2001).
“Inherent in [Mil. R. Evid.] 414 is a general presumption in favor of ad-
mission.” Yammine, 69 M.J. at 74 n.4 (citing Ediger, 68 M.J. at 248).
3. Analysis
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United States v. McCall, No. ACM 39548
On appeal, Appellant contends the military judge abused his discretion
with respect to admitting evidence under both Mil. R. Evid. 414 and Mil. R.
Evid. 404(b). We address each type of evidence in turn.
a. Mil. R. Evid. 414 Evidence
We find the military judge did not abuse his discretion when he admitted
Appellant’s communications with “queen [H]” and “k” pursuant to Mil. R. Evid.
414. He clearly explained his reasoning as he applied the correct legal frame-
work, beginning with the three threshold criteria set forth in Ediger, 68 M.J.
at 248. First, he correctly found Appellant was charged with an offense of child
molestation, specifically an attempt to commit the offense of sexual abuse of a
minor, a violation of Article 120b, UCMJ. See Mil. R. Evid. 414(d)(2)(G).
Second, the military judge reasonably concluded court members could find
by a preponderance of evidence that the record of Appellant’s communications
with “queen [H]” and “k” constituted other offenses of child molestation. See
Mil. R. Evid. 414(a). Indeed, these other communications were very similar to
the charged offense, in that they also involved communicating sexually explicit
language on Whisper to recipients who purported to be under 16 years old.
Third, the military judge properly concluded these “other” communications
were relevant to the charged offense. He explained, “[t]hese two discussions
provide some evidence of [Appellant’s] intent to gratify his sexual desire when
he used similar language in the charged specification and is relevant to
whether there was an absence of mistake as to whether ‘Helen’ was a minor.”
In addition, the military judge noted Mil. R. Evid. 414 “recognize[s] that . . .
similar incidents of child molestation are relevant to whether an accused has
a propensity to engage in incident[s] of child molestation.” See United States v.
Dewrell, 52 M.J. 601, 608 (A.F. Ct. Crim. App. 1999) (“[I]n view of the language
Congress used in [Mil. R. Evid.] 413 and 414, relevancy is all but mandated.”)
(citations omitted).
Having properly found these communications met the three threshold cri-
teria, the military judge also reasonably applied the Mil. R. Evid. 403 balanc-
ing test and found the probative value of the Mil. R. Evid. 414 evidence was
not substantially outweighed by the danger of unfair prejudice or other coun-
tervailing factors. He individually assessed each of the Wright factors in his
written ruling, and concluded that most of them favored admission, none fa-
vored exclusion, and two (potential for less prejudicial evidence and frequency
of the acts) were essentially neutral. Where a military judge conducts a proper
Mil. R. Evid. 403 balancing test and articulates his analysis on the record, “the
ruling will not be overturned unless there is a ‘clear abuse of discretion.’”
United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (quoting United
States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998)). We agree with the military
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United States v. McCall, No. ACM 39548
judge that the balancing in this case favored admission, and we find no clear
abuse of discretion.
On appeal, Appellant does not contend that his communications with
“queen [H]” and “k” failed to meet the threshold test for Mil. R. Evid. 414 evi-
dence. Instead, he faults the military judge for failing to “properly limit the
scope of the admissible propensity evidence to protect against the danger of
unfair prejudice.” Appellant notes the military judge admitted 51 pages of Mil.
R. Evid. 414 text conversations, permitted trial counsel to have the Govern-
ment’s expert read through substantial portions of Appellant’s explicit conver-
sation with “k” line by line, and permitted the Government to refer in argu-
ment to “queen [H]” and “k” as if they were actual minors despite the fact their
identities had never been established. Appellant contends this “unfettered” use
of the evidence was unfairly prejudicial, and implies the military judge either
should have intervened to limit the Government’s use of the evidence, or ex-
cluded it under Mil. R. Evid. 403.
We are not persuaded. Essentially, Appellant does not fault the military
judge’s preliminary ruling allowing the evidence under Mil. R. Evid. 414 which,
as discussed above, was appropriate. To the extent Appellant complains the
Government exaggerated or misused this evidence, “[m]ilitary judges are pre-
sumed to know the law and follow it absent clear evidence to the contrary.”
United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United
States v. Mason, 45 M.J. 483, 485 (C.A.A.F. 1997)). In light of the military
judge’s proper and clearly-articulated analysis of the admissibility and rele-
vance of this evidence, we are confident he considered it appropriately in its
proper context.
b. Mil. R. Evid. 404(b) Evidence
We further find no material prejudice to Appellant’s substantial rights with
regard to Mil. R. Evid. 404(b). Although the military judge’s written analysis
of this rule is less explicit and more abbreviated than his application of Mil. R.
Evid. 414, he did explain his reasoning in his ruling, and therefore we review
for a clear abuse of discretion. See Manns, 54 M.J. at 166 (citation omitted).
We consider the military judge’s ruling in light of the three-part Reynolds test
for admissibility of Mil. R. Evid. 404(b) evidence. See Ediger, 68 M.J. at 248.
First, the communications in question with “BleachBuddie14” and “[J]”
were of a similar nature to the evidence of Appellant’s communications with
“Helen”—the subject of the charged offense—as well as those with “queen [H]”
and “k,” and would support a finding by a preponderance of the evidence that
Appellant in fact engaged in such communications.
Second, the military judge found this evidence was relevant for multiple
purposes—specifically to demonstrate intent, absence of mistake or accident,
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United States v. McCall, No. ACM 39548
and modus operandi, and to rebut a possible defense of entrapment. We find
no abuse of discretion in the military judge’s ruling with respect to intent, mis-
take or accident, and entrapment; and to the extent the evidence was not rele-
vant to modus operandi, we find the military judge’s ruling harmless.
With regard to entrapment, Appellant notes the Defense did not ultimately
raise that defense. However, it was not error for the military judge to rule the
evidence would be admissible for this purpose.
With regard to intent, Appellant contends this evidence of non-criminal
communication with purported minors had no tendency to demonstrate an in-
tent to engage in acts of child sexual abuse through indecent language with
“Helen.” However, relevance is a “low threshold.” United States v. Roberts, 69
M.J. 23, 27 (C.A.A.F. 2010). The Government was required to prove Appellant
attempted—that is, acted with specific intent—to commit the offense of sexual
abuse of a child by intentionally communicating indecent language to “Helen.”
See Article 80, UCMJ; Article 120b, UCMJ, 10 U.S.C. § 920b. We agree with
the military judge that Appellant’s willingness to engage on Whisper with mul-
tiple individuals who held themselves out to be under the age of 16 years in
non-sexually explicit conversations, in the same time frame that he engaged in
three other communications that were sexually explicit, has some tendency to
demonstrate his indecent communications to “Helen” were intentional. See
Mil. R. Evid. 401(a). For example, Appellant’s awareness of multiple other in-
dividuals purporting to be children while communicating on Whisper has some
tendency to increase the likelihood he believed “Helen” was also actually under
16 years old.
With regard to absence of mistake, Appellant contends the non-explicit
communications with “BleachBuddie14” and “[J]” were cumulative with other
evidence that Appellant was aware that individuals under 16 years of age used
Whisper, and in any event admitting the entirety of the conversations was un-
necessary. However, these arguments do not impugn the relevance of these
communications, i.e., that they have some tendency to indicate Appellant did
not overlook or make a mistake as to “Helen’s” age.
With regard to modus operandi, Appellant properly cites prior decisions of
this court for the proposition that, where identity of the perpetrator is not in
issue, the Mil. R. Evid. 404(b) evidence is not relevant to demonstrate modus
operandi. See United States v. Rollins, 23 M.J. 729, 735 (A.F.C.M.R. 1986) (“If
identity is not in doubt and the only issue is whether the criminal act was
committed, modus operandi is not relevant.”); United States v. McIntyre, Misc.
Dkt. No. 2013-24, 2014 CCA LEXIS 19, at *17–18 (A.F. Ct. Crim. App. 16 Jan.
2014) (relying on Rollins). In this case, the identity of the perpetrator was not
in issue. However, as the Government observes, the military judge properly
found the evidence relevant for other purposes and did not improperly consider
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United States v. McCall, No. ACM 39548
it for propensity. We note again Appellant was tried by a military judge; thus,
notwithstanding that the Mil. R. Evid. 404(b) material may not have been rel-
evant to Appellant’s identity, we are confident the military judge considered
the evidence for relevant purposes, and not as evidence of propensity or for any
other improper purpose. See Erickson, 65 M.J. at 225.
Third, for similar reasons, and as with the Mil. R. Evid. 414 evidence, we
find the probative value of these communications was not substantially out-
weighed by the danger of unfair prejudice. The military judge is presumed to
know the law, and his rulings and rationale indicate he did not intend to use
this evidence for an improper purpose. See id. Moreover, we find the other dan-
gers that Mil. R. Evid. 403 guards against, such as confusion, delay, and cu-
mulativeness, to be of minimal concern—particularly in light of the military
judge’s decision to admit the text of only two of the nine non-explicit conversa-
tions.
B. Improper Argument
1. Law
Improper argument is a question of law that we review de novo. United
States v. Frey, 76 M.J. 245, 248 (C.A.A.F. 2014) (citation omitted). If there is
no objection at trial, on appeal the appellant bears the burden to demonstrate
plain error. United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citations
omitted). When reviewing an allegedly improper argument for plain error, the
appellate court “must determine: (1) whether trial counsel’s arguments
amounted to clear, obvious error; and (2) if so, whether there was ‘a reasonable
probability that, but for the error, the outcome of the proceeding would have
been different.’” Id. (quoting United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F.
2017)) (additional citations omitted).
“Trial prosecutorial misconduct is behavior by the prosecuting attorney
that ‘oversteps the bounds of that propriety and fairness which should charac-
terize the conduct of such an officer in the prosecution of a criminal offense.’”
United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v.
United States, 295 U.S. 78, 84 (1935)). “Prosecutorial misconduct can be gen-
erally defined as action or inaction by a prosecutor in violation of some legal
norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or
an applicable professional ethics canon.” United States v. Meek, 44 M.J. 1, 5
(C.A.A.F. 1996) (citing Berger, 295 U.S. at 88) (additional citation omitted).
“A prosecutorial comment must be examined in light of its context within
the entire court-martial.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F.
2005) (citation omitted). “[P]rosecutorial misconduct by a trial counsel will re-
quire reversal when the trial counsel’s comments, taken as a whole, were so
damaging that we cannot be confident” that the appellant was convicted and
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United States v. McCall, No. ACM 39548
sentenced on the basis of the evidence alone. Fletcher, 62 M.J. at 184; see
United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013) (regarding sentenc-
ing arguments). In assessing prejudice from improper argument, we balance
three factors: (1) the severity of the misconduct; (2) the measures, if any,
adopted to cure the misconduct; and (3) the weight of the evidence supporting
the conviction or sentence. See Halpin, 71 M.J. at 480; Fletcher, 62 M.J. at 184.
2. Analysis
Appellant argues that the trial counsels’ arguments were improper in three
respects. Specifically, Appellant contends senior trial counsel and assistant
trial counsel misused the evidence admitted pursuant to Mil. R. Evid. 404(b)
during their findings and sentencing arguments, respectively; senior trial
counsel improperly commented on Appellant’s constitutional right to remain
silent; and senior trial counsel improperly referred to victim impact during her
rebuttal findings argument.
However, trial defense counsel did not object to any of these arguments,
and in order to obtain relief on appeal the Defense bears the burden to demon-
strate a reasonable probability of a different result had the asserted error not
occurred. See Voorhees, 79 M.J. at 9 (citation omitted). In this regard, it is sig-
nificant that Appellant was tried by a military judge alone. As the United
States Court of Appeals for the Armed Forces (CAAF) has explained:
When the issue of plain error involves a judge-alone trial, an ap-
pellant faces a particularly high hurdle. A military judge is pre-
sumed to know the law and apply it correctly, is presumed capa-
ble of filtering out inadmissible evidence, and is presumed not to
have relied on such evidence on the question of guilt or inno-
cence. . . . As a result, “plain error before a military judge sitting
alone is rare indeed.”
United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000) (citations omitted).
Similarly, we presume the military judge is able to filter out improper argu-
ment in the absence of evidence to the contrary. With this in mind, we turn to
the specifics of Appellant’s case.
As an initial matter, we note the Government’s case for findings was very
strong. See Fletcher, 62 M.J. at 164. The Government introduced the record of
Appellant’s sexually explicit communications with “Helen,” which extended
over several days and in the course of which “Helen” repeatedly informed him
she was 14 years old. The Government also introduced Appellant’s recorded
AFOSI interview in which he admitted writing the messages. Any suggestion
that Appellant might have overlooked “Helen’s” age was undercut by the evi-
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United States v. McCall, No. ACM 39548
dence that during the same time frame he willingly engaged in other conver-
sations on Whisper with individuals purporting to be girls under the age of 16
years, two of which were also sexually explicit.
a. Use of Mil. R. Evid. 404(b) Evidence
Turning to Appellant’s assertions of improper argument, Appellant’s non-
explicit communications with “BleachBuddie14” and “[J]” were admitted pur-
suant to Mil. R. Evid. 404(b) as evidence of, inter alia, intent and absence of
mistake. During argument on findings, senior trial counsel referred to Appel-
lant’s apparent interest in pictures of these two individuals, and Appellant’s
questioning “BleachBuddie14’s” assertion that he was too old for her. We find
senior trial counsel’s remarks were fair comments consistent with purposes for
which this evidence was admitted, and Appellant has not demonstrated “clear,
obvious error.” Voorhees, 79 M.J. at 9 (citation omitted).
Assistant trial counsel’s use of the “BleachBuddie14” and “[J]” evidence
during sentencing argument, which the Government does not squarely ad-
dress, was potentially more problematic. After describing Appellant’s explicit
comments to “queen [H]” and “k,” admitted as prior acts of child molestation
pursuant to Mil. R. Evid. 414, assistant trial counsel then stated:
And, finally, we know [Appellant] talked to [“[J]”] who indicated
she was 11 [years old], and he did turn the conversation, right.
He asked for pictures. And all the evidence in this case shows
you that he had only one purpose for asking for pictures. And so
when he asked Beach Bunny [sic] “what’s your upper limit of
guys you go out with?” We certainly can tell from [“[J]”] that,
well, [Appellant’s] limit is something as low as 11.
The military judge admitted evidence of Appellant’s communications with
“BleachBuddie14” and “[J]” specifically as evidence of intent, absence of mis-
take or accident, modus operandi, and to rebut entrapment relevant to proving
the charged offense, none of which were at issue at this stage of the proceed-
ings. Mil. R. Evid. 404(b) “does not provide a basis for admission of evidence
during sentencing that is not otherwise admissible under R.C.M. 1001(b)(4).”
United States v. Tanner, 63 M.J. 445, 448 (C.A.A.F. 2006) (citing United States
v. Wingart, 27 M.J. 128, 135–36 (C.M.A. 1988)). R.C.M. 1001(b)(4) permits the
Government to present in sentencing “aggravating circumstances directly re-
lating to or resulting from the offenses of which the accused has been found
guilty.”
However, we need not definitively decide whether assistant trial counsel’s
use of this evidence in sentencing was clear error, or whether there was a
proper use for such evidence in aggravation or as rebuttal to the Defense’s ev-
idence of rehabilitation potential. Because the Defense did not object to this
12
United States v. McCall, No. ACM 39548
argument at trial, Appellant bears the burden to demonstrate a reasonable
probability of a different result. In light of our presumption that the military
judge knows the law and filters out impermissible evidence and argument, Ap-
pellant cannot meet that burden here.
b. Comment on Appellant Not Making a Written Statement
During her rebuttal argument on findings, senior trial counsel stated with
regard to Appellant’s AFOSI interview:
And finally at the end of the video they offer him the opportunity
to write a statement; perfect opportunity to explain yourself if
OSI has shut you down and there is valid information that you
want to put forward that they need to know about and you want
to explain the why. But what does he say when they offer him
that chance? He says “I can’t make sense of what I would say
right now.” There’s no explanation, sir, other than that he’s
guilty.
To be perfectly clear, this was a blatant and inappropriate invitation for the
finder of fact to hold against Appellant his constitutional right to decline to
make a statement. Before a panel of members, this argument might have in-
flicted irreparable harm to the fairness of the proceedings. However, the mili-
tary judge recognized the impropriety of the argument. At the conclusion of
senior trial counsel’s rebuttal, the military judge stated he “will not consider
[Appellant’s] decision to refrain from providing a written statement,” which he
deemed as Appellant “invoking his right to remain silent, and as such the court
will not consider that as any substantive evidence in this case or consider it
[sic] any inferences as argued by the trial counsel regarding that election.” The
military judge could and arguably should have condemned senior trial coun-
sel’s argument more strongly. See Voorhees, 79 M.J. at 14–15. However, we are
left in no doubt that this improper argument did not play a role in the military
judge’s findings.
c. Comment on Victim Impact in Argument on Findings
Finally, Appellant cites another portion of the rebuttal findings argument
as improper. Senior trial counsel argued:
[T]his operation that OSI was undertaking is highly valuable to
the Air Force and society as a whole. Talking like this to minors
thrusts them way too early into an adult world. It makes them
sexualize prematurely, and the negative consequences of that
not only to the child but to society as a whole, the ripple effect,
it’s huge.
13
United States v. McCall, No. ACM 39548
At this point, the military judge interrupted to ask, “[i]s that a sentencing
argument rather than a findings argument?” The senior trial counsel re-
sponded that she was “just coming to a conclusion,” and she quickly concluded
without returning to the subject of victim impact. Although the military judge
did not expressly state that he would not consider this quoted portion of the
argument, his interruption and question indicated he recognized this argu-
ment about the impact of the charged offense was essentially irrelevant. Cou-
pled with the general presumption that the military judge knows and properly
applies the law, we are very confident this asserted error did not influence the
findings.
C. Ineffective Assistance of Counsel
1. Law
The Sixth Amendment guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).
See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000)). Accordingly, we “will not second-guess the strategic or tacti-
cal decisions made at trial by defense counsel.” United States v. Mazza, 67 M.J.
470, 475 (C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001)). We review allegations of ineffective assistance de novo.
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing Mazza, 67 M.J.
at 474).
We utilize the following three-part test to determine whether the presump-
tion of competence has been overcome:
1. Are appellant’s allegations true; if so, “is there a reasonable
explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s level of advo-
cacy “fall measurably below the performance . . . [ordinarily ex-
pected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable prob-
ability that, absent the errors,” there would have been a differ-
ent result?
Gooch, 69 M.J. at 362 (alteration in original) (quoting United States v. Polk, 32
M.J. 150, 153 (C.M.A. 1991)). The burden is on the appellant to demonstrate
both deficient performance and prejudice. United States v. Datavs, 71 M.J. 420,
424 (C.A.A.F. 2012) (citation omitted).
2. Analysis
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United States v. McCall, No. ACM 39548
Appellant contends his trial defense counsel, Mr. DC and Maj SH, were
ineffective in multiple respects. At the Government’s request, this court or-
dered and received from Mr. DC and Maj SH declarations responsive to Appel-
lant’s claims of ineffective assistance. Because their declarations do not raise
any substantive factual disputes, we find no post-trial evidentiary hearing is
required to resolve this assignment of error. See United States v. Ginn, 47 M.J.
236, 248 (C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A.
1967). We consider Appellant’s arguments in turn and conclude the alleged
errors warrant no relief.
a. Sentencing Argument
During Mr. DC’s sentencing argument, he paused and stated: “I meant to
ask this before I stood up, but maybe I’m confused. The DD [dishonorable dis-
charge] is statutorily required, is that correct?” The military judge took a mo-
ment to consult his materials before informing Mr. DC that the offense of at-
tempted sexual abuse of a child did not carry a mandatory minimum sentence.
Trial counsel concurred. Mr. DC then continued with his argument. Although
Mr. DC conceded reduction in rank and some period of confinement was appro-
priate, he did not concede that a punitive discharge was appropriate. Rather,
Mr. DC asked the military judge to “spare” Appellant a punitive discharge, and
opined that “a punitive discharge is not what we see in this case.”
Appellant now contends Mr. DC’s question to the military judge indicated
he was unprepared, and that there is no reasonable explanation for Mr. DC not
to have familiarized himself with the applicable minimum and maximum sen-
tences. Appellant further argues Mr. DC’s apparent assumption that a mini-
mum dishonorable discharge applied effectively conceded such a punishment
was appropriate, and left him “unable to present a competent or persuasive
sentencing argument, especially in regards to a punitive discharge.”
In response, Mr. DC explains that during the assistant trial counsel’s sen-
tencing argument he realized the parties had not discussed the applicable max-
imum and minimum punishments with the military judge. Mr. DC states:
I understood there was not a mandatory punitive discharge and
based on trial counsel’s sentence recommendation I wanted to
clarify on the record the court’s understanding of both the max-
imum and minimum punishment. I recognize that both the tim-
ing of the question and the manner in which I phrased my ques-
tion to the military judge may have been confusing and inartful.
Although an inopportune moment, my intent was to gain clarity
for myself and the record.
15
United States v. McCall, No. ACM 39548
We agree with Mr. DC that his question was inartful at best, posed in such
a way as to suggest he incorrectly believed a dishonorable discharge was man-
datory. However, Appellant bears the burden to demonstrate prejudice as well
as deficient performance. If Appellant cannot demonstrate prejudice, we need
not determine whether Mr. DC’s performance was constitutionally deficient
under Strickland. See United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007)
(quoting United States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005)). In this
case, Appellant cannot demonstrate prejudice. The military judge was clearly
aware a dishonorable discharge was not mandatory. Mr. DC did not concede a
punitive discharge, and argued against such a punishment. We are not per-
suaded a reasonable probability exists that, absent Mr. DC’s question, the mil-
itary judge would have imposed a more favorable sentence for Appellant.
b. Failure to Present Character Letters at Sentencing
Appellant asserts that a few days before trial, his defense team lost approx-
imately six character letters prepared for sentencing proceedings. Mr. DC and
Maj SH do not deny that certain character letters were lost due to what Mr.
DC describes as a “computer failure” at the Area Defense Counsel’s office. As
a result, the Defense worked to rebuild its sentencing evidence. According to
Mr. DC, he explained to Appellant that the Defense could request a delay in
order to obtain any letters he felt were missing. However, Appellant stated he
was satisfied with the sentencing evidence and did not want a delay. Ulti-
mately, in sentencing the Defense introduced favorable live testimony from
Appellant’s spouse and three military witnesses, three character letters, a let-
ter of appreciation, two civilian awards, and a number of photos in addition to
Appellant’s oral and written unsworn statements.
The details and causes of the loss of the original character letters is unclear.
However, once again we need not determine whether trial defense counsel’s
performance was deficient because Appellant cannot demonstrate prejudice.
See Tippit, 65 M.J. at 76 (citation omitted). Appellant has made no showing of
the content of the missing character letters; therefore, he cannot show how
they would have differed from or materially enhanced the Defense’s sentencing
case. Cf. United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (“[A]ppel-
lant has not even established a foundation for his claim [of ineffective assis-
tance of counsel] by demonstrating that specific individuals would have pro-
vided the court with specific testimony.”) Accordingly, he has failed to demon-
strate a reasonable probability of a more favorable result.
c. Failure to Object to Prosecution Exhibits
Appellant next contends trial defense counsel were ineffective by failing to
object to Prosecution Exhibits 10 through 13, which were printed records of his
communications with “queen [H],” “k,” “BleachBuddie14,” and “[J],” admitted
16
United States v. McCall, No. ACM 39548
as Mil. R. Evid. 414 and Mil. R. Evid. 404(b) evidence as described above. We
are not persuaded. It is true that trial defense counsel declined to object when
the Government offered these exhibits without laying a foundation or authen-
ticating the exhibits. However, as Mr. DC indicates, there is no reason to be-
lieve the Government could not have laid such a foundation if required, and
the military judge had already ruled the substance of the Mil. R. Evid. 414 and
Mil. R. Evid. 404(b) evidence was admissible.
Appellant contends the Defense could have also objected to the statements
these unknown individuals made to Appellant on hearsay grounds. Again, we
disagree. The significance of these statements was not the truth of the matter
asserted; it was the effect on the recipient, Appellant. See Mil. R. Evid. 801(c)
(“hearsay” is an out-of-court statement “a party offers in evidence to prove the
truth of the matter asserted”). We find Appellant has failed to demonstrate
either deficient performance or prejudice with respect to Prosecution Exhibits
10 through 13.
d. Failure to Object to Improper Argument
Finally, Appellant argues trial defense counsel were deficient in failing to
object to the various allegedly improper trial counsel arguments, as described
above. Mr. DC responds that based on the draft instructions the military judge
prepared, he “believed the judge understood how the evidence was to be con-
sidered and therefore did not require additional objections from defense coun-
sel.” As we have explained above, the military judge is presumed to know the
law and to filter out improper evidence and arguments. See Robbins, 52 M.J.
at 457. Because we have already determined Appellant was not prejudiced by
these arguments in this judge-alone trial, it follows that he was also not prej-
udiced by trial defense counsel’s failure to object.
D. Post-Trial Delay
“We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” Id. (citing United States v.
Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J.
54, 58 (C.A.A.F. 2003)).
Appellant’s court-martial concluded on 18 April 2018. However, the con-
vening authority did not take action until 11 September 2018. This 146-day
period exceeded by 26 days the 120-day threshold for a presumptively unrea-
sonable post-trial delay that the CAAF established in United States v. Moreno,
63 M.J. 129, 142 (C.A.A.F. 2006). Accordingly, we have considered the four fac-
tors the CAAF identified in Moreno to assess whether Appellant’s due process
right to timely post-trial and appellate review has been violated: “(1) the length
of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the
right to timely review and appeal; and (4) prejudice.” Id. at 135 (citing United
17
United States v. McCall, No. ACM 39548
States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005), United States v. Toohey, 60 M.J.
100, 102 (C.A.A.F. 2004)). However, where there is no qualifying prejudice from
the delay, there is no due process violation unless the delay is so egregious as
to “adversely affect the public’s perception of the fairness and integrity of the
military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.
2006).
Appellant does not claim he suffered any particular prejudice from the de-
lay. Based on the court reporter’s chronology, it appears the primary reason
for the delay was the court reporter’s workload. Appellant’s record of trial was
substantial, but not unusually large, amounting to six total volumes including
492 pages of transcript. After recording Appellant’s trial, the court reporter
transcribed and recorded other proceedings such that more than two months
had elapsed before he could dedicate more than one day to transcribing Appel-
lant’s trial. It appears the Government sought to mitigate this delay to some
extent by referring a portion of Appellant’s trial to be transcribed by another
court reporter. It also appears that once the court reporter was able to focus on
Appellant’s record, he was able to transcribe the bulk of it between 25 June
2018 and 6 July 2018. The military judge signed the final authentication on 20
July 2018, although the SJAR was not signed and served on the Defense until
6 August 2018. Another significant factor in the delay was defense counsel’s
request for an extension of 20 days in which to file Appellant’s clemency mat-
ters, which the acting staff judge advocate granted. On the whole, if the pro-
cessing of Appellant’s case was less than excellent, we nevertheless do not find
the delay so egregious as to adversely affect the perceived fairness and integ-
rity of the military justice system. See Toohey, 63 M.J. at 362.
Appellant contends that even if he did not suffer a violation of due process
rights under Moreno, this court should exercise its authority under Article 66,
UCMJ, to grant relief for unreasonable and unexplained post-trial delay even
in the absence of prejudice. See United States v. Tardif, 57 M.J. 219, 225
(C.A.A.F. 2002). After considering the factors enumerated in United States v.
Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), we conclude that such an exercise of our authority is not warranted in
this case.
18
United States v. McCall, No. ACM 39548
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED. 7
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
7 We note an error in the promulgating order, in which the phrase “recution to the
Grade of E-1” should read “reduction to the Grade of E-1.” We direct this error be cor-
rected in a new court-martial order.
19