The AFCCA affirmed the findings and sentence of SSGT Lawrence J.D. Bowman, finding no error materially prejudicial to his substantial rights.
Appellant was convicted, contrary to his pleas, of two specifications of attempted sexual abuse of a child on divers occasions in violation of Article 80, UCMJ. The court-martial sentenced Appellant to a dishonorable discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved the sentence.
Bowman opinion here.
On 14 September 2017, then 24-year-old Staff Sergeant Lawrence Bowman (Appellant) responded to an advertisement on the “Casual Encounters” section of “Craigslist,” looking for someone to hang out with on Scott AFB. The post was made by “Courtney,” who unbeknownst to Appellant, was actually Special Agent (SA) MD with the Air Force Office of Special Investigations (AFOSI) at Scott AFB. Appellant responded to “Courtney’s” advertisement, stating he’d be there the next day and including a photo of himself naked from the chest down, holding his erect penis. On 18 September 2017, “Courtney” responded to Appellant stating she would be 15 years old in December. Appellant and “Courtney” continued communicating that day for about six hours and communicated further on 21 September 2017 for about three-and-a-half hours. They exchanged several emails before switching to communication by phone text messaging. During these conversations, Appellant sent “Courtney” additional photos of his genitalia and “used graphic terms and explicit language to describe the sexual acts he wanted to perform on” her.
At one point during their conversation, Appellant stated “[y]ou know what this is dumb of me. I shouldn’t be talking to you.” However, Appellant continued texting with “Courtney” and began “discussing vague plans to meet at her house.” Appellant then ended the text conversation shortly after.
Appellant reinitiated the Craiglist conversation three days later, stating, “[h]ey did you ever find anyone to come over and f**ked your 14 y/o p**sy?” “Courtney” replied via text message and the two continued a sexually explicit conversation similar to their previous conversation on 18 September. Appellant sent two additional photos of his naked chest and genitalia. After this conversation, SA MD traced the phone number to Appellant and SA MD, in coordination with AFOSI agents, then searched Appellant’s residence and seized the digital media.
During his testimony at trial, Appellant “repeatedly claimed he did not believe the person was actually a 13- or 15-year old girl, and thought the person was only pretending to be that young.” The Court suggested that in order to find Appellant guilty, the court members would have had to find that he repeatedly lied about this claim in his sworn testimony.
The issues raised by Appellant and considered by the Court were: (1) whether the sentence of a dishonorable discharge is inappropriately severe; (2) whether the military judge erred in admitting Appellant’s confession that was obtained without a proper rights advisement; (3) whether Appellant is entitled to sentence-appropriateness relief due to post-trial delay; and (4) whether Appellant is entitled to new post-trial processing because the Government failed to properly serve him with a copy of the record of trial. The Court did not address two additional issues raised by Appellant, finding they did not warrant further discussion or relief: (5) whether the military judge committed plain error by failing sua sponteto provide an instruction on the defense of entrapment; and (6) whether the military judge erred in denying the defense motion to compel production of a forensic psychologist.
The Court reviewed the sentence appropriateness de novo, “considering the particular appellant, the nature and seriousness of the offense, the appellant’s record of service, and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009). The Court elected not to walk through their consideration of each of these elements. However, the Court did explain that the court members “would have found he repeatedly lied in his sworn testimony about an element of the offenses of which he was found guilty, and such false testimony is a factor when considering Appellant’s rehabilitation potential and the appropriate sentence for those offenses.” Without individually weighing the factors under consideration in the opinion, the Court determined the sentence was not inappropriately severe.
2. Appellant’s Confession
Appellant argues that the military judge erred when he admitted the Appellant’s confession to AFOSI into evidence, because during the rights advisement, the agent told Appellant he was suspected of violating Article 120, UCMJ and not Article 120b, UCMJ. The Court highlighted, however, that the trial defense counsel stated “No objection, Your Honor” when the Government offered Appellant’s written statement and portions of the video/audio recording of his interview with AFOSI into evidence. Trial defense counsel also “confirmed they agreed with the Government which portions of the video to play to the members.” Furthermore, before the interview with the AFOSI agents, Appellant told the agents that he had signed a consent forum in his First Sergeant’s office that stated the allegation against him was “sexual abuse of a child.”
The Court found that Appellant waived the objection to the admission of his written and recorded statement to AFOSI at trial under Mil. R. Evid. 302(f) and due to “trial defense counsel’s affirmative statement to the military judge that he had no objection.” Although the Court holds the ability to “pierce such waiver” under Article 66(c), UCMJ, finding no error in this case, the Court declined to do so.
3. Post-Trial Delay
The convening authority took action on Appellant’s case 135 days after Appellant was sentence, exceeding the 120-day threshold for a presumptively unreasonable post-trial delay established by CAAF in United States v. Moreno. 63 M.J. 129 (C.A.A.F. 2006). The Court considered the balance of four factors set forth in Barker v. Wingo, 407 U.S. 514, 530-32 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) Appellant’s assertion of the right to timely review and appeal; and (4) prejudice.
The Court considered the facts that: (1) the Government exceed the Moreno 120-day standard by 15 days; (2) the court reporter detailed technological problems transcribing the proceedings and her efforts to solve them and diligently complete an error-free record of the trial; (3) “Appellant submitted a demand for speedy post-trial processing 78 days after the conclusion of his trial, and addressed prejudice from this delay in his clemency request to the convening authority”; and (4) Appellant did not suffer prejudice arising from post-trial processing delays. While finding that the first three factors weighed in Appellant’s favor, the Court found that the final factor outweighed the rest.
In determining the weight of the fourth factor on prejudice, the Court considered the fact that oppressive incarceration does not apply to Appellant because he did not prevail in his substantive appeal; that Appellant failed to show particularized anxiety and concern that rose to the level “that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision”; and that the delay did not impair Appellant to present a defense at a rehearing as Appellant failed to prevail in his substantive appeal. Finally, the Court found that the delay was not “so egregious as to impugn the fairness and integrity of the military justice system”, and therefore, declined to exercise their Article 66(c), UCMJ, authority to grant relief to Appellant for post-trial delay.
4. Service of Record of Trial on Appellant
Regarding the final issue considered by the Court, Appellant argues that the Government provided him an incomplete record of trial, with certain portions redacted, which impacted his ability to participate in the preparation of his clemency matters. The Court noted that the copy of the record of trial given to Appellant was missing only the items identified as “Sexually Explicit/Graphic Materials” in the original record of trial. The Court additionally pointed out that Appellant’s trial defense counsel, and not Appellant himself, submitted the request for clemency to the convening authority, and that counsel did not request for Appellant to receive an un-redacted record of trial.
Under Article 54(c)(1)(A), UCMJ, a “complete record of the proceedings and testimony” is to be prepared for any general court-martial resulting in a punitive discharge. The accused is to receive a copy of the record under Article 54(d), UCMJ. However, under AFMAN 51-203, when a military judge does not order sexually explicit materials sealed in a record of trial, as was the case here, the Government may remove the sexually explicit materials from the copy of the record of trial provided to the accused. Further, according toCAAF precedent, when raising a post-trial processing error, an appellant must provide “a colorable showing of possible prejudice in terms of how the omission potentially affected an appellant’s opportunity for clemency.” United States v. Scalo, 60 M.J. 435, 437 (C.A.A.F. 2005).
Appellant argued that because he was unable to review the sexually explicit messages between him and “Courtney,” he was forced “to rely solely on what [he] could recall about [his] investigation and trial in order to build [his] case.” However, the Court determined that Appellant failed meet the standard set forth in Scaloand found “no colorable showing of possible prejudice in this case.”