United States v. Clark-Bellamy ( 2020 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39709
________________________
UNITED STATES
Appellee
v.
Christopher D. CLARK-BELLAMY
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 27 October 2020
________________________
Military Judge: John C. Degnan.
Sentence: Sentence adjudged 29 March 2019 by GCM convened at Hol-
loman Air Force Base, New Mexico. Sentence entered by military judge
on 22 April 2019: Dishonorable discharge, confinement for 1 year and 6
months, forfeiture of all pay and allowances, and reduction to E-1.
For Appellant: Major Benjamin H. DeYoung, USAF; Major Yolanda D.
Miller, USAF.
For Appellee: Captain Kelsey B. Shust, USAF; Mary Ellen Payne, Es-
quire.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Clark-Bellamy, No. ACM 39709
MEGINLEY, Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, in accordance with his pleas and a pretrial agreement (PTA),
of one specification of wrongfully and knowingly possessing child pornography,
in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934. 1 The military judge sentenced Appellant to a dishonorable discharge,
confinement for two years, forfeiture of all pay and allowances, and reduction
to the grade of E-1. Consistent with the terms of the PTA, the convening au-
thority approved only one year and six months of confinement. Otherwise, the
convening authority approved the sentence as adjudged. 2
On appeal, Appellant raises three issues: (1) whether the military judge
abused his discretion when he considered a victim impact statement; (2)
whether Appellant is entitled to sentence relief because his case was not dock-
eted with this court within 30 days of action by the convening authority; and
(3) whether Appellant is entitled to sentence relief because the record of trial
is defective and incomplete. Regarding Appellant’s third assertion, given that
the defects were either resolved or waived, we find this assertion does not re-
quire further discussion or warrant relief. See United States v. Matias, 25 M.J.
356, 361 (C.M.A. 1987). Finding no prejudicial error, we affirm the findings
and sentence.
I. BACKGROUND
Appellant entered active duty in September 2012. At the time of the offense
alleged in the charge and its specification, he was stationed at Holloman Air
Force Base (AFB), New Mexico. On 8 January 2018, Appellant used his phone
to post a child pornography image to a group chat on “Kik,” a messenger appli-
cation. On 5 March 2018, Homeland Security Investigations (HSI), Las Cruces,
New Mexico, received notice, through Kik, that Appellant had uploaded illegal
content to its platform. After identifying Appellant as the subscriber who up-
loaded the image, and that he lived on Holloman AFB, HSI notified the Air
Force Office of Special Investigations (AFOSI); HSI agreed to turn the case
over to AFOSI agents for investigation.
1Unless otherwise noted, references to the Uniform Code of Military Justice (UCMJ),
the Rules for Courts-Martial (R.C.M.), and the Military Rules of Evidence are to the
Manual for Courts-Martial, United States (2016 ed.) (2016 MCM).
2 As part of the pretrial agreement (PTA), the convening authority also agreed to not
refer to trial by court-martial any additional misconduct concerning Appellant’s al-
leged distribution of child pornography on or about 24 January 2018.
2
United States v. Clark-Bellamy, No. ACM 39709
On 5 April 2018, an AFOSI agent obtained a search authorization from a
Holloman AFB military magistrate to search Appellant’s electronic devices for
child pornography. Subsequently, AFOSI agents seized Appellant’s hard drive
and cellular phone. On 6 April 2018, Appellant was interviewed by AFOSI
agents. Following a rights advisement, Appellant declined counsel and an-
swered questions. During this interview, Appellant denied sending the image
but also stated his fiancée had access to his phone, although but he did not
think she would have uploaded the image.
A subsequent search of Appellant’s electronic devices conducted by the De-
fense Computer Forensics Laboratory found video and image files of child por-
nography on Appellant’s phone and a hard drive. During his providence in-
quiry, Appellant acknowledged he posted a child pornography image on Kik to
a group chat that was interested in these types of photographs. Appellant also
admitted he used “Tumblr,” another social media site, to purposely look for
child pornography; used search terms to look for child pornography; and that
he possessed four videos and over 20 photographs, on two devices, containing
child pornography.
Trial counsel reached out to KF, a known child pornography victim from
the series known as “Vicky,” whose sexual abuse was depicted in the images in
Appellant’s collection. 3 During presentencing, trial counsel moved to introduce
a written unsworn statement (Court Exhibit 1) and a prerecorded (video) oral
unsworn statement from KF (Court Exhibit 2). The military judge made it clear
that both exhibits were not government exhibits but were court exhibits. Ms.
CLH, KF’s attorney, provided Court Exhibit 2 to trial counsel, on behalf of KF,
for the court to consider. Neither KF, nor her attorney, were present during
the court-martial proceedings; however, Ms. CLH provided a signed letter to
the court verifying that she had represented KF since 2008, that “it was [KF’s]
desire to have her victim impact statement dated 2011 and or her video impact
statement used in the proceeding, US v. SrA Christopher D. Clark-Bellamy,”
and “[be] considered by the military judge presiding in this matter.” Ms. CLH
3The record indicates KF in Appellant’s case is the same KF in United States v. Barker,
77 M.J. 377, 382 (C.A.A.F. 2018). The CAAF noted in its Barker opinion, “We have no
doubt that KF is indeed the child in the ‘Vicky series,’ and that she is a ‘victim’ of child
pornography for the purposes of R.C.M. 1001A.” 77 M.J. at 381. The “Vicky” child por-
nography series refers to the recorded rape and abuse of KF by her father when she
was ten years old. See United States v. Kearney, 672 F.3d 81 (1st Cir. 2012); United
States v. McDaniel, 631 F.3d 1204 (11th Cir. 2011).
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United States v. Clark-Bellamy, No. ACM 39709
also stated she had “specifically communicated with [KF] concerning this pro-
ceeding to obtain her consent and direction concerning use of her impact state-
ments.” Ms. CLH’s letter was marked as Appellate Exhibit V. 4
Trial defense counsel objected to the content of KF’s victim impact state-
ments, arguing that KF’s statement made reference to evidence or facts that
were not at issue in the case, including KF’s statement related to other inter-
vening actors, “like people who have stalked her.” Trial defense counsel also
objected to Ms. CLH’s letter, Appellate Exhibit V, for lack of authenticity. The
military judge acknowledged the authentication issues, noting Ms. CLH’s let-
ter was neither notarized nor certified, and that it “is just a memorandum.”
The military judge considered the issue of Ms. CLH’s statement and believed
it “an interlocutory question that could be resolved by her testifying on the
telephone to [the trial court] and allowing both sides the opportunity to ques-
tion her and to cross-examine her to establish the authenticity of Appellate
Exhibit V.” Trial counsel argued that under Mil. R. Evid. 901, he did not believe
there was an authenticity argument, in that a judge’s discretion to exclude ev-
idence on authenticity grounds is “limited to deciding whether sufficient proof
exists for a reasonable juror to determine the authenticity of the document.”
Trial counsel later again argued, after Ms. CLH testified telephonically, the
“government does not believe there is an authenticity requirement under M[il].
R. E[vid]. 901 as to an Appellate Exhibit.”
Trial defense counsel stated that even if the document was authenticated,
he objected to Ms. CLH’s telephonic testimony to introduce KF’s statement.
Trial defense counsel argued if it was so important for KF’s statement to be
considered, the Government had ample time to produce Ms. CLH to testify in
advance of trial.
The military judge, believing it would be helpful for the record to have Ms.
CLH articulate facts about her letter, overruled trial defense counsel’s objec-
tion to her testifying telephonically on the issue of authentication. Citing
R.C.M. 703(b)(1) (2016 MCM), the military judge opined:
[T]he Court is considering the testimony of Ms. [CLH] as testi-
mony on an interlocutory question. Understanding, defense,
you’re not consenting to this. But looking at the factors under
4 Trial counsel also added Appellate Exhibits VI through IX to the record to provide
the military judge with information regarding Ms. CLH’s bar license, her Seattle law
practice, and correspondence with the base legal office regarding KF’s representation.
The correspondence shows Ms. CLH received a redacted charge sheet for Appellant’s
case, as well as an excerpt of a report from the National Center for Missing and Ex-
ploited Children (known more commonly as NCMEC) identifying the series of which
KF was a part.
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United States v. Clark-Bellamy, No. ACM 39709
the rule, these are factors to be considered but are not limited to
the cost of producing the witness, the timing of the request for
the production of [sic] witness, potential delay, and the interloc-
utory proceeding that may be caused by the production of the
witness, the willingness of the witness to testify in person, the
likelihood of significant interference with military operational
deployments, mission accomplishment, or essential training
and/or child witness traumatic effects of providing the in-court
testimony.
Ms. CLH, who was on standby to participate at Appellant’s sentencing
hearing, was called as a witness by the court, sworn, and testified telephoni-
cally on the interlocutory issue. Ms. CLH stated it was her understanding the
trial was for the “prosecution of [Appellant] that involves child sex abuse ex-
ploitation images of [her] client, who is the victim in the Vicky series.” Trial
defense counsel continued his examination as follows:
Q [Trial Defense Counsel]. Could you explain a little bit what
your knowledge of this case is?
A [Ms. CLH]. I don’t know much beyond that. As I explained be-
fore, I’m not at my office. . . . I had left the office by the time I
learned that my testimony was needed.
Q. Were you at any time made aware of what the evidence in
this case was?
A. I couldn’t say that I was aware of the specific evidence in de-
tail. And I’m actually never advised of that in either civilian
prosecutions or the military prosecutions that I speak to prose-
cutors about, other than the fact that my client’s images are in
a particular defendant’s collection and what he or she may have
done with them.
Q. And was that in this case that you were advised of that?
A. I was advised that my client’s sexual assault images in this
case were in [Appellant’s] collection, yes.
Q. Were you told anything about videos?
A. I may have been told about it. In fact, it’s my understanding
that primarily the Vicky series is made up of videos.
After Ms. CLH’s testimony, trial defense counsel argued against consider-
ation of KF’s victim impact statement, specifically highlighting that Ms. CLH
and her client misunderstood that the case involved videos when it did not.
Finding that the issue regarding authentication of Ms. CLH’s statement was
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United States v. Clark-Bellamy, No. ACM 39709
resolved, and that Ms. CLH was authorized to present KF’s statement as KF’s
representative, the military judge overruled the Defense’s objections, and ac-
cepted KF’s unsworn video statement (Court Exhibit 2), as was the preference
of the victim; he did not accept KF’s written statement (Court Exhibit 1). 5
The following are portions from Court Exhibit 2, KF’s eight-minute video
statement to the court. KF stated:
I still have nightmares that come from knowing the pictures of
me are spread around on the internet by people with perverted
interests in my pain. I have panic attacks and flashbacks, I can’t
sleep a lot of nights, no matter how early I go to bed . . . sleep
doesn’t come easy for me . . . something about the nighttime puts
my mind on alert. . . . I have a constant fear for my children’s
safety, as pedophiles have continued to stalk me over social me-
dia and have hacked into my Facebook and Instagram accounts
to steal pictures of what I look like now. . . . I fear what would
happen if they did found [sic] out where we lived or got a hold of
pictures or information about my children considering the efforts
that some have gone to as they have continued to stalk me
online. I take many safety measures but my anxiety remains. . . .
I want you to know that dealing with the effects of the stress of
random men looking at pictures of my sex abuse as a child is like
a full-time job and it wears me down and colors every aspect of
my life.
II. DISCUSSION
A. Victim’s Impact Statement
1. Law
A military judge’s interpretation of R.C.M. 1001A is a question of law we
review de novo. See United States v. Barker, 77 M.J. 377, 382 (C.A.A.F. 2018)
(citations omitted). However, we review a military judge’s decision to accept a
victim impact statement offered pursuant to R.C.M. 1001A for an abuse of dis-
cretion. See id. at 383 (citing United States v. Humpherys, 57 M.J. 83, 90
(C.A.A.F. 2002) (reviewing a military judge’s application of R.C.M. 1001A (2016
MCM) for an abuse of discretion)). “The ‘judge abuses his discretion if his find-
ings of fact are clearly erroneous or his conclusions of law are incorrect.’”
5Although he overruled the Defense’s objection, the military judge did not play Court
Exhibit 2 in open court; he watched the video during deliberations. The military judge
did note after he announced the sentence that he watched the video in chambers, and
that it was eight minutes and ten seconds long.
6
United States v. Clark-Bellamy, No. ACM 39709
Humpherys, 57 M.J. at 90 (quoting United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995)).
Issues of statutory interpretation are reviewed de novo. United States v.
Jacobsen, 77 M.J. 81, 84 (C.A.A.F. 2017) (citing United States v. Vargas, 74
M.J. 1, 5 (C.A.A.F. 2014)). Courts first look to the text of the statute. Id. (citing
United States v. Tucker, 76 M.J. 257, 258 (C.A.A.F. 2017); Hartford Underwrit-
ers Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the
statute’s language is plain, the sole function of the courts—at least where the
disposition required by the text is not absurd—is to enforce it according to its
terms.” (internal quotation marks and citation omitted))). “When statutory lan-
guage is unambiguous, the statute’s plain language will control.” United States
v. Jacobson, 77 M.J. 81, 84 (C.A.A.F. 2017) (citing United States v. Schell, 72
M.J. 339, 343 (C.A.A.F. 2013)).
R.C.M. 1001A(b)(1) defines a “crime victim” as “an individual who has suf-
fered direct physical, emotional, or pecuniary harm as a result of the commis-
sion of an offense of which the accused was found guilty.” Child pornography
is a continuing crime and a child depicted in the images is victimized each time
the images are downloaded and viewed. Paroline v. United States, 572 U.S.
434, 439 (2014) (citation omitted).
A victim has a right to be reasonably heard in a sentencing hearing. Article
6b(a)(4)(B), UCMJ, 10 U.S.C. § 806b(a)(4)(B).
At the beginning of the presentencing proceeding, the military
judge shall announce that any crime victim who is present at the
presentencing proceeding has the right to be reasonably heard,
including the right to make a sworn statement, unsworn state-
ment, or both. Prior to the conclusion of the presentencing pro-
ceeding, the military judge shall ensure that any such crime vic-
tim was afforded the opportunity to be reasonably heard.
R.C.M. 1001A(a). “[T]he right to be reasonably heard requires that the victims
be contacted, given the choice to participate in a particular case, and, if they
choose to make a statement, offer the statement themselves, through counsel,
or through a ‘victim’s designee’ where appropriate.” United States v. Hamilton,
78 M.J. 335, 340–41 (C.A.A.F. 2019) (citations omitted). A victim may make a
sworn or unsworn statement during sentencing in a non-capital case. R.C.M.
1001A(b)(4). An unsworn statement may be oral, written, or both. R.C.M.
1001A(e). Statements offered under R.C.M. 1001A(b) may include victim im-
pact or matters in mitigation. “[V]ictim impact includes any financial, social,
psychological, or medical impact on the crime victim directly relating to or aris-
ing from the offense of which the accused has been found guilty.” R.C.M.
1001A(b)(2).
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United States v. Clark-Bellamy, No. ACM 39709
However, “the rights vindicated by R.C.M. 1001A [(2016 MCM)] are per-
sonal to the victim in each individual case. Therefore, the introduction of state-
ments under this rule is prohibited without, at a minimum, either the presence
or request of the victim, R.C.M. 1001A(a), the special victim’s counsel or the
victim’s representative, R.C.M. 1001A(d)–(e).” Barker, 77 M.J. at 382. The mil-
itary judge may permit the victim’s counsel to deliver all or part of the victim’s
unsworn statement. R.C.M. 1001A(e)(2); see also LRM v. Kastenberg, 72 M.J.
364, 370 (C.A.A.F. 2013) (“A reasonable opportunity to be heard at a hearing
includes . . . that a victim . . . who is represented by counsel be heard through
counsel.”) “During the presentencing proceedings, there shall be much greater
latitude than on the merits to receive information by means other than testi-
mony presented through the personal appearance of witnesses.” R.C.M.
1001(f)(1).
Victim impact statements offered under R.C.M. 1001A are not “evidence,”
and thus “the balancing test in Mil. R. Evid. 403 is inapplicable to assessing
the reasonable constraints that may be placed upon such statements.” United
States v. Hamilton, 77 M.J. 579, 586 (A.F. Ct. Crim. App. 2017) (en banc), aff’d,
78 M.J. 335 (C.A.A.F. 2019). As this court explained in Hamilton,
Mil. R. Evid. 403 addresses “legal relevance” and provides that
“evidence” may be excluded notwithstanding its logical rele-
vance. In the decision to allow a victim to exercise their right to
be heard on sentencing, a military judge is neither making a rel-
evance determination nor ruling on the admissibility of other-
wise relevant evidence. Instead, the military judge assesses the
content of a victim’s unsworn statement not for relevance, but
for scope . . . .
Id.In Hamilton, this court acknowledged the military judge has an “obligation
to ensure the content of a victim’s unsworn statement comports with the de-
fined parameters of victim impact or mitigation as defined by the statute and
R.C.M. 1001A.” 6 Id. at 585–86 (citing R.C.M. 1001A, Discussion (“A victim’s
unsworn statement should not exceed what is permitted under R.C.M.
6 Our holding was limited to the determination that victim impact statements, like an
accused’s unsworn statement, are not evidence: “Reading the plain language of the
rules, we hold that unsworn victim impact statements offered pursuant to R.C.M.
1001A are not evidence.” United States v. Hamilton, 77 M.J. 579, 583 (A.F. Ct. Crim.
App. 2017) (en banc), aff’d, 78 M.J. 335 (C.A.A.F. 2019) (citing United States v. Provost,
32 M.J. 98, 99 (C.M.A. 1991) (if an accused elects to make an unsworn statement, he
is not offering evidence)).
8
United States v. Clark-Bellamy, No. ACM 39709
1001A(c) . . . . Upon objection or sua sponte, a military judge may stop or inter-
rupt a victim’s unsworn statement that includes matters outside the scope of
R.C.M. 1001A.”)).
The United States Court of Appeals for the Armed Forces (CAAF) affirmed
this court’s decision in Hamilton on grounds that the appellant suffered no
prejudice by “[t]he victim impact statements . . . [that] d[id] not comply with
the requirements of R.C.M. 1001A (2016), and, thus, were improperly admit-
ted.” Hamilton, 78 M.J. at 342. Consequently, the CAAF did not reach the
question whether R.C.M. 1001A (2016 MCM) statements are subject to the
Military Rules of Evidence, but acknowledged “[t]he plain language of R.C.M.
1001A (2016) clearly contemplates that at least some of the Military Rules of
Evidence are inapplicable to victim impact statements.” Id. The CAAF ob-
served,
[I]n those cases where a military judge complies with the de-
tailed parameters set forth in R.C.M. 1001A (2016) and exercises
sound discretion in determining whether the “right to be reason-
ably heard” is exceeded, resolution of [the issue whether R.C.M.
1001A statements are subject to the Military Rules of Evidence]
is unlikely to be dispositive.
Id.
When there is error regarding the presentation of victim statements under
R.C.M. 1001A, the test for prejudice “is whether the error substantially influ-
enced the adjudged sentence.” Barker, 77 M.J. at 384 (citation omitted). When
determining whether an error had a substantial influence on a sentence, this
court considers the following four factors: “(1) the strength of the Government's
case, (2) the strength of the defense case, (3) the materiality of the evidence in
question, and (4) the quality of the evidence in question.” United States v.
Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017). “An error is more likely to be prejudicial
if the fact was not already obvious from the other evidence presented at trial
and would have provided new ammunition against an appellant.” United
States v. Machen, No. ACM 39295, 2018 CCA LEXIS 419, *12 (A.F. Ct. Crim.
App. 29 Aug. 2018) (unpub. op.) (citing United States v. Harrow, 65 M.J. 190,
200 (C.A.A.F. 2007)).
2. Analysis
Appellant challenges the authenticity of Ms. CLH’s written statement, her
telephonic testimony regarding KF’s (video) victim impact statement, and the
overall admissibility of KF’s statement. Regarding the authenticity of Ms.
CLH’s written statement, we find that Mil. R. Evid. 901 is inapplicable. Mil. R.
Evid. 901 states that “[t]o satisfy the requirement of authenticating or identi-
fying an item of evidence, the proponent must produce evidence sufficient to
9
United States v. Clark-Bellamy, No. ACM 39709
support a finding that the item is what the proponent claims it is.” (Emphasis
added). Ms. CLH’s written statement was not being offered into evidence. Nev-
ertheless, as the CAAF indicated in Barker, military judges are expected to
exercise sound discretion when it comes to a victim being reasonably heard,
and in this case, we find the military judge exercised sound discretion in en-
suring that Ms. CLH was KF’s representative and that she accurately disclosed
her client’s views of the case. See Barker, 77 M.J. at 382–83. Even assuming
arguendo that Mil. R. Evid. 901 applies, Ms. CLH’s letter was authenticated
through her testimony. See Mil. R. Evid. 901(b)(1). “Authentication simply re-
quires establishing that the evidence is what the proponent claims it to be.”
United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013) (citation omitted).
We now turn to Appellant’s argument that the plain language of the law
unambiguously requires a victim (or representative) to be physically present
when presenting matters at sentencing proceedings. The language “shall be
called by the court-martial” is not a mandate for presence at the court-martial.
It means that a victim is not a prosecution or a defense witness (although the
victim could be called as a witness); a victim is called by the court-martial.
Additionally, Appellant appears to conflate the duty of the military judge un-
der R.C.M. 1001(a)(3)(A) to notify victims who are present of their right to be
heard, with the right of any victim to be reasonably heard under R.C.M.
1001A(a).
Thus, we disagree with Appellant’s proposition that a victim (or representa-
tive) who is not physically present at the sentencing hearing forfeits his or her
right to make a statement. R.C.M. 1001A conveys a personal right to the victim
and does not expressly mandate physical presence. R.C.M. 1001A(a) merely
states that a victim has the right to be “reasonably heard.” In cases involving
child pornography, a recognized continuing offense, we reject the argument
that Congress, in providing rights for victims, also meant to add to their emo-
tional, psychological, and potentially financial burden by requiring their phys-
ical presence in every case, where re-victimization has no limitation geograph-
ically or temporally, and a victim’s right to make a statement would be hidden
behind an impractical barrier of constantly being at the beck and call of pros-
ecutors, rendering inconsequential the statutes and rules that are specifically
designed to give them a voice.
Appellant argues “[t]he requirement that a victim (or her representative)
be present is made even more necessary to ensure that a victim is actually
aware of an accused’s offenses,” and that the victim’s (or representative’s) opin-
ion could change by knowing the evidence in a case or “by hearing more about
an accused’s background.” Again, we disagree. While it may be true that child
pornography victims, such as KF, could change their opinion about their vic-
timization based on the particular accused, it is unlikely. Further, we see no
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United States v. Clark-Bellamy, No. ACM 39709
confrontation issue; KF was making an unsworn statement and Appellant had
no right to cross-examine her. R.C.M. 1001A(e). Additionally, this court has no
expectation that KF would prepare a separate statement for every case where
she was re-victimized by a stranger possessing or watching an image or video
of her sexual abuse. As we stated in United States v. Barker, “[i]n continuing
crime cases, such as possession and viewing of child pornography, there is no
requirement that a victim prepare a separate statement for each individual
case.” 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017), aff’d on other grounds by
Barker, 77 M.J. at 378; overruled on other grounds by Hamilton, 77 M.J. at
586. We hold that that the plain language of R.C.M. 1001A(e) does not require
the physical presence of a child pornography victim (or their representative) to
present or offer a victim impact statement to the court, and that telephonic or
other reliable means is sufficient to meet the intent of R.C.M. 1001A(e). 7
Lastly, we look at trial defense counsel’s objection to considering KF’s state-
ment. As stated in Hamilton, “the military judge assesses the content of a vic-
tim’s unsworn statement not for relevance, but for scope.” 77 M.J. at 586. The
facts surrounding Appellant’s possession of child pornography were estab-
lished through his providence inquiry and the stipulation of fact and its attach-
ments. As noted, child pornography is a continuing offense. KF’s video state-
ment, made without showing her face, describes the lifelong social, emotional,
and psychological toll her constant re-victimization has on her well-being.
Many of the themes and harms contained in her statement are well known to
the law and thus are presumed to have been known by the military judge. See
7See United States v. Cink, No. ACM 39594, 2020 CCA LEXIS 208 (AF. Crim. Ct. App.
12 Jun. 2020) (unpub. op.). In Cink, this court declined to opine on the necessity of
“actual appearance”:
To be clear, we need not and do not decide here that actual appearance
by a victim at the court-martial, either in person, by live remote means,
or through counsel or a designated representative, is necessarily re-
quired in order to be heard pursuant to R.C.M. 1001A. See Barker, 77
M.J. at 382 (“[T]he introduction of statements under [R.C.M. 1001A] is
prohibited without, at a minimum, either the presence or request of the
victim, . . . the special victim’s counsel, . . . or the victim’s representa-
tive . . . .” (emphasis added)). For purposes of the instant case, it is suf-
ficient to rely on our superior court’s holdings that the victim, victim’s
counsel, or the victim’s representative must offer the statement. Rep-
resentations by a non-designated parent or by trial counsel are insuf-
ficient.
Id. at *11.
11
United States v. Clark-Bellamy, No. ACM 39709
Barker, 77 M.J. at 384. The military judge advised the parties he would con-
sider KF’s video statement, but not her written statement (Court Exhibit 1).
The military judge said he would give KF’s statement the weight it deserved.
Although the military judge did not provide comment on KF’s statement, 8
“[m]ilitary judges are presumed to know the law and to follow it absent clear
evidence to the contrary. . . . As part of this presumption we further presume
that the military judge is able to distinguish between proper and improper sen-
tencing arguments.” United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F.
2007) (citation omitted). This presumption holds regardless of whether the mil-
itary judge notes the improper portions or states what portions he will con-
sider. Id. Reviewing the record, there is no evidence to rebut this presumption
and we are confident the military judge sentenced Appellant based on the ap-
propriate victim-impact matters and evidence, and as such, did not abuse his
discretion.
B. Post-Trial Docketing
Appellant argues he is entitled to relief because his case was not docketed
with this court within 30 days of action by the convening authority. In United
States v. Moody-Neukom, No. ACM S32594, 2019 CCA LEXIS 521 (A.F. Ct.
Crim. App. 16 Dec. 2019) (per curiam) (unpub. op.), this court addressed issues
regarding entries of judgment in place of convening authority action 9 and how
future post-trial processing will be analyzed under United States v. Moreno, 63
M.J. 129, 142 (C.A.A.F. 2006):
In Moreno, the CAAF identified thresholds for facially unreason-
able delay for particular segments of the post-trial and appellate
process. Id. at 141–43. Specifically, the CAAF established a pre-
sumption of facially unreasonable delay where the convening au-
thority did not take action within 120 days of the completion of
trial, where the record was not docketed with the Court of Crim-
inal Appeals within 30 days of the convening authority’s action,
8This court would recommend that military judges note on the record which portions
of victim’s statements were considered in the sentence.
9See United States v. Moody-Neukom, No. ACM S32594, 2019 CCA LEXIS 521, at *3–
4 (A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam) (unpub. op.):
The entry of judgment takes the place of action by the convening au-
thority under the former procedures in the sense that it “terminates
the trial proceedings and initiates the appellate process.” R.C.M.
1111(a)(2). After the military judge enters the judgment, the court re-
porter prepares and certifies the record of trial and attaches additional
matters to the record for appellate review. R.C.M. 1112(c), (f).
12
United States v. Clark-Bellamy, No. ACM 39709
or where the Court of Criminal Appeals did not render a decision
within 18 months of docketing.
Moody-Neukom, unpub. op. at *4.
However, as we recently noted in United States v. Livak,
Depending on the length and complexity of the record involved,
we can envision cases in which the court reporter is still tran-
scribing the proceedings after the convening authority’s deci-
sion. As such, the prior 30-day period from action to docketing,
which primarily involved transmitting an already-completed
[record of trial] to the Court of Criminal Appeals, now overlays
substantive actions such as completing the preparation of the
record.
___ M.J. ___ , No. ACM S32617, 2020 CCA LEXIS 315, at *6 (A.F. Ct. Crim.
App. 14 Sep. 2020). This court held that:
[T]he specific requirement in Moreno which called for docketing
to occur within 30 days of action no longer helps us determine
an unreasonable delay under the new procedural rules. How-
ever, we can apply the aggregate standard threshold the major-
ity established in Moreno: 150 days from the day Appellant was
sentenced to docketing with this court. See Moreno, 63 M.J. at
142. This 150-day threshold appropriately protects an appel-
lant’s due process right to timely post-trial and appellate review
and is consistent with our superior court’s holding in Moreno.
Id. at *6–7.
Applying Livak to the current case, Appellant’s trial concluded on 29 March
2019; the Defense submitted clemency matters on 5 April 2019; the convening
authority took action on the sentence on 9 April 2019; the military judge signed
the entry of judgment on 22 April 2019; the court reporter certified the record
of trial and a verbatim written transcript of the proceedings on 17 May 2019;
and the record was docketed with this court on 18 June 2019. From the conclu-
sion of trial to the docketing of Appellant’s case with this court, 81 days passed.
While it appears some of this delay could have been avoided, the delay is well
below the 150-day threshold discussed above, and we find no facially unrea-
sonable delay occurred and no violation of the Appellant’s due process rights.
Assuming arguendo that there was a facially unreasonable delay, we have
assessed whether there was a due process violation by considering the four
factors the CAAF identified in Moreno: “(1) the length of the delay; (2) the rea-
sons for the delay; (3) the appellant’s assertion of his right to a timely review
13
United States v. Clark-Bellamy, No. ACM 39709
and appeal; and (4) prejudice [to the appellant].” Moreno, 63 M.J. at 135 (cita-
tions omitted). We have also considered that where an appellant has not shown
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). We discern no prejudice, and we find no violation of Ap-
pellant’s due process rights.
In the absence of a due process violation, this court considers whether relief
for excessive post-trial delay is warranted consistent with this court’s authority
under Article 66(d), UCMJ, 10 U.S.C. § 866(d). See 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);
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). Having considered
the entire record and the particular facts and circumstances of this case, we
find Appellant is not entitled to any relief on this issue.
III. CONCLUSION
The findings and sentence entered are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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